The U.S. Patent and Trademark Office (USPTO) has ruled that “Redskins” is disparaging to Native Americans, and has cancelled the federal protections for associated trademarks, pending any possible appeals.
That decision came in response to a challenge by Native American groups in Blackhorse v. Pro Football, Inc.
"Based on the evidence presented by the parties and on applicable law, that the Blackhorse petitioners carried their burden of proof. By a preponderance of the evidence, the petitioners established that the term 'Redskins' was disparaging of Native Americans, when used in relation to professional football services, at the times the various registrations involved in the cancellation proceeding were issued," USPTO said.
The decision does not mean that the football team has to change its name or stop using the trademarks at issue. But it does mean that it loses the legal presumption of ownership, the ability to use the registration symbol, or to be able to get the Customs and Border Patrol service to block importation of counterfeit goods into the country.
Cancelling the registration does not mean it can't be used, only that it loses government protection. The trademark owner may also still retain "use" rights under common law. "This decision concerns only the statutory right to registration under Section," said USPTO. "We lack statutory authority to issue rulings concerning the right to use trademarks
The NFL can appeal the decision in court, as it did an earlier finding by the USPTO that the marks were disparaging.
Redskins owner Daniel Snyder has said he would not change the name, even as pressure mounted from Congress and elsewhere.
The Redskins attorney, Bob Raskopf, signaled the team would be appealing the decision.
"We are confident we will prevail once again," said Raskopf, "and that the Trademark Trial and Appeal Board’s divided ruling will be overturned on appeal. This case is no different than an earlier case, where the Board cancelled the Redskins’ trademark registrations, and where a federal district court disagreed and reversed the Board. As today’s dissenting opinion correctly states, 'the same evidence previously found insufficient to support cancellation' here 'remains insufficient' and does not support cancellation."
Raskopf said the team would be able to continue to protect its marks without registration. "The registrations will remain effective while the case is on appeal. When the case first arose more than 20 years ago, a federal judge in the District of Columbia ruled on appeal in favor of the Washington Redskins and their trademark registrations. Why? As the district court’s ruling made clear in 2003, the evidence is insufficient to conclude that during the relevant time periods the trademark at issue disparaged Native Americans," he said.
"The court continued. 'The Court concludes that the [Board’s] finding that the marks at issue ‘may disparage’ Native Americans is unsupported by substantial evidence, is logically flawed, and fails to apply the correct legal standard to its own findings of fact.' Those aren’t my words. That was the court’s conclusion. We are confident that when a district court review’s today’s split decision, it will reach a similar conclusion."
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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