Amid the dramatic clamor over this week’s decision by the U.S. Patent Office to revoke the federal trademarks to the Washington Redskins‘ name, it is still unclear how things could really change.
Well, the answer is, according to one expert, very little.
In a copy of the 2-1 decision obtained by the Washington Post, the Trademark Trial and Appeal Board wrote, “We decide, based on the evidence properly before us, that these registrations must be cancelled because they are disparaging to Native Americans at the respective times they were registered.”
“It’s not as exciting of a holding as the press is making it out to be,” said Pam Gavin, an intellectual property lawyer with Gavin Law Offices based here in Richmond. According to Gavin, cancelled registration does not mean the team loses the right to use or own the Redskins name.
“Ownership of a mark in the United States is due to use,” she said. “Whoever uses a particular mark first in connection with particular goods or services within a particular geography owns the rights to that mark.”
“A mark basically has a three-dimensional aspect to it,” noted Gavin. For example, she said, a federal trademark registration can be compared to a car title, in that it is only one way to prove one’s ownership of a vehicle in court, versus a bill of sale or canceled check.
Because the Washington Redskins have had widespread and undisputed use of their name for decades, Gavin said that it would still be highly unlikely for a court to rule against them in an intellectual property dispute. “You’d have to be a judge that has lived under a rock forever not to know of the Washington Redskins,” Gavin said. “It’s a famous mark, basically.”
The Board acknowledged the ruling’s relative impotence in its 99-page decision, writing “We lack statutory authority to issue rulings concerning the right to use trademarks.” Furthermore, the registrations will remain in effect during the coming appeal process.
Opposition to the Washington Redskins’ name has simmered for decades, but public outcry came to a head last year.
Along with statements by celebrities, the mayor of Washington and even Redskins players pushing for the team to change its name, 49 U.S. Senators signed an open letter to NFL Commissioner Roger Goodell asking the league to “formally support and push for a name change for the Washington football team.”
Forever on the front lines of the fight, the National Congress of American Indians against the Redskins Name aired the video below during this year’s NBA Finals in the hopes of further spreading awareness of their concerns.
The lawsuit which led to this decision was filed by five Native American plaintiffs in 2006, led by Arizona social worker Amanda Blackhorse, a member of the Navajo tribe. “Some people say it’s just political correctness run amok,” she told AZCentral. “But why don’t we deserve political correctness when other groups do?”
Team owner Daniel Snyder has flatly asserted he has no plans to replace his team’s name. “We’ll never change the name,” Snyder told USA Today in May 2013, “It’s that simple. NEVER – you can use caps.”
This is the second time the U.S. Patent Office has revoked the Redskins’ trademarks. In 1999, a nearly identical ruling was handed down against the Redskins name, but it was overturned four years later by a federal judge.
Bob Raskopf, a trademark attorney for the Redskins, recalled the team’s previous legal victory in a statement released Wednesday. “The evidence in the current claim is virtually identical to the evidence a federal judge decided was insufficient more than ten years ago. We expect the same outcome here.”
So don’t expect to see a mess of fake Redskins merch at the local training camp this summer – but there might be a few protests.
Read RVA Mag correspondent Ian Graham’s December 2013 open letter to Daniel Snyder in support of a Redskins name change, in which he predicts a lot of these exact issues coming to a head, here: rvamag.com/articles/full/22785/an-open-letter-to-daniel-snyder-owner-of-the-washington-nfl-team
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