US Patent Office ruling cancels ‘disparaging’ Redskins trademark

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The U.S. Patent and Trademark Office cancelled the trademark on the Washington Redskins name and some logos on Wednesday, calling them disparaging to Native Americans. [READ THE RULING.]

The 2-1 Trademark Trial and Appeal Board decision would strip the NFL team of all legal benefits afforded to registering a trademark with the federal government if the cancellation goes into effect, though the team would still be free to use its nickname and Indian head logo.

The football team quickly vowed to appeal the decision, and expressed confidence that the courts would toss out the decision to cancel trademarks on the team logos that include the “Redskins” name just as they rejected an earlier Patent Office ruling against the Redskins.

“The evidence in the current claim is virtually identical to the evidence a federal judge decided was insufficient more than ten years ago,” Redskins lawyer Bob Raskopf said in a statement. “We expect the same ultimate outcome here.”

Activists have long sought to eliminate the Redskins name, arguing it is a racist term against American Indians. Redskins owner Daniel Snyder and his supporters have argued there is a long tradition of using the name, and that many Native Americans support it.

While the fight has been going on for decades, it has intensified in political circles in recent years, with 50 Democratic senators calling for the team to change its name and President Obama also saying he’d think about changing the name if he were the team’s owner.

Senate Majority Leader Harry Reid (D-Nev.) has been particularly vocal, and recently said he would not attend a Washington football game until the team changes its name.

He cheered the Patent Office’s decision on Wednesday.

“Daniel Snyder may be the last person in the world to realize this, but it’s just a matter of time until he’s forced to do the right thing and change the name,” Reid said.

The Patent Office’s Trademark Trial and Appeal Board (TTAB) ruled that the evidence showed six Redskins trademarks were “disparaging to Native Americans at the respective times they were registered,” and as a result should be canceled.

The office made a similar ruling in 1999, but the U.S District Court for the District of Columbia reversed the board’s decision after a lengthy litigation process in 2003.

If the cancellation goes into effect, the team would lose ownership of the symbol, meaning it could not block the “importation of infringing or counterfeit foreign goods.” The patent office notes that the team could still have some common law rights in ownership of the logo.

The team has one of two avenues to contest the ruling. It could either appeal to the U.S. Court of Appeals for the Federal Circuit or take civil action in the U.S. District Court for the Eastern District of Virginia, which has jurisdiction.

Rebecca Tushnet, a Georgetown law professor who focuses on trademark disputes, said the ruling would likely not cost the team money in the short term, aside from legal fees. She said the team likely has a “better than average” chance of success on appeal.

“The Federal Circuit is not particularly deferential to the TTAB, so in that sense its chances are better than average,” she said.

The board said six of the Redskins’s trademarks are subject to cancellation proceedings, including a number of trademarks used in radio, television and print.

The ruling found evidence that the term was disparaging to Native Americans when the trademarks were issued. The board rejected the defense that the trademarks have already been around for so long and a significant amount of investment in them had already been made.

The team has registered different logos and trademarks associated with Redskins over several different years, beginning in 1967 when it registered a simple cursive “The Redskins” logo. In 1990, it registered as a trademark several other words, including “Redskinettes” for “cheerleaders who perform dance routines at professional football games.”

Board member Marc Bergsman dissented, saying the petitioners used much of the same evidence “previously found insufficient” in the earlier case.

“By this dissent, I am not suggesting that the term ‘redskins’ was not disparaging. … Rather, my conclusion is that the evidence petitioners put forth fails to show that it was,” Bergsman said.

One of the tests of whether a term is disparaging is if a substantial group believes it to be. To prove this, The majority largely relied on a 1993 resolution condemning the name passed by the National Council of American Indians, which the majority says represented 30 percent of Native Americans, a substantial number.

Bergsman said evidence is lacking that that the vote actually represented 30 percent of Native Americans.

The two panelists who voted for the majority argued that resolution showed a substantial group found the term “Redskins” to be disparaging.

The new petition was brought by five individual Native Americans; the case is known as Blackhorse V. Pro Football, Inc.

The previous legal dispute was complicated and the final ruling did not hinge on whether the logo was disparaging to Native Americans, leaving that question open.

In the earlier case, The United States District Court for the District of Columbia initially ruled that the board lacked “substantial evidence” that the logo was disparaging. The court also ruled that the petitioners had waited too long to bring the case.

Specifically, they said the earlier petitioners had turned 18 years old, but did not challenge the name for years.

The current case included younger petitioners, some 18 years old when the petition was first filed, to avoid the charge that they waited too long to bring the case.

“Here, the people seeking cancellation were all too young to sue until recently, so the court can’t say they waited too long to sue,” Tushnet said.

—This story was posted at 10:30 a.m. and was updated at 5:05 p.m.

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