As has been widely reported, the Trademark Trial and Appeal Board has ruled that “redskins” is deeply offensive slur and can not be federally registered as a trademark under 15 U.S.C. § 1052(a), which prohibits registration of marks that contain “immoral, deceptive, or scandalous matter or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” (We last looked at that statute when the TTAB denied registration to “cock sucker” for rooster-shaped lollipops.)
I am pleased to see this ruling and hope it will add further impetus to the drive to rename the Washington pro football franchise. But in my self-appointed role as debunker of popular press reporting on IP law issues, the past 24 hours have been hell, even putting aside the CNBC personality who asked how the team could go on without “patent” protection. So a few facts are in order.
First the ruling (81 pages, not 177 as widely reported) was a split 2-1 decision, with a 20-page dissent that points out: (1) the legal issue is not whether the trademark is disparaging and offensive to a wide swath of native Americans today, but whether it was at the time the trademarks were registered (all before 1990); (2) a 1999 TTAB ruling cancelling the marks was overturned on appeal; and (3) the record in the present cancellation proceeding is not much different than the record in the earlier proceeding.
That said, the majority position that the outcome in the earlier proceeding is not dispositive is forceful, and I think it very possible this ruling will hold up on appeal. Even then, however, the effect of the ruling will only be to deprive the team of federal registrations, not the right to use the trademark and enforce it against infringers in court. They will lose the right to have the Customs Service seize counterfeit goods at the border, and will lose the presumption of trademark validity that comes with a federal registration, but not much else. I do not think they will find courts any less disposed to crack down on infringers–as between an enterprise that has been using the disparaging trademark for many years and a counterfeiter trying to cash in on the same disparaging trademark, the former is going to prevail.
It seems that the owner of the Washington team will fight on. The NFL does not seem concerned enough by the highly public, constant use of a racial slur by one of its members to bring anything like the kind of pressure the NBA brought down upon an addled old man for talking like Archie Bunker in private. The nature of the professional sports market and the relationship of teams and their fan bases makes it highly unlikely that a consumer boycott could be mounted. It would seem the most likely pressure point would be the teams corporate sponsors; if they were to pull their support it is unlikely Dan Snyder could resist. The good news for him is that the same fan loyalty that makes a consumer boycott unlikely will make the cost of rebranding the team minimal. Once he announces a new name and logo, it will take hold without an expensive advertising campaign, and life will go on.