United States: Washington Redskins Trademarks Held To Be ‘Disparaging’

Last Updated: June 19 2014
Article by Jack A. Wheat

The Washington Redskins National Football League team REDSKINS trademarks are considered by many to be a racial slur according to a holding issued earlier today by the judicial branch of the United States Patent & Trademark Office. Thus, the nationwide registrations of those marks are to be cancelled.

The various registrations ordered cancelled include the words, WASHINGTON REDSKINS, the words, THE REDSKINS, the word, REDSKINS, a graphic design mark containing the depiction of a spear shown here, the better known graphic design containing a stereotypical profile view of a broad-nosed, longhaired man with feathers dangling from the scalp portion of his head, also shown here, and the word REDSKINETTES, the name for the team's cheerleading/dance squad.

The decision to cancel the nationwide registration of these marks is the result of petitions for cancellation brought by a group of young adult Native Americans including a member of the Navajo Nation, a member of the Paiute Indian Tribe of Utah, and a member of the Kiowa Tribe of Oklahoma, and a member of the Muscogee Nation of Florida.

The basis for the petitions for cancellation is the contention the marks clearly are a reference to Native Americans, are considered "disparaging" by a substantial portion of Native Americans, and consequently, the Patent & Trademark Office never should have granted registration of the marks.

In addressing the petitions for cancellation, the judicial branch of the United States Patent & Trademark Office, its Trademark Trial & Appeal Board (the "TTAB") noted federal trademark law does prohibit the registration of marks which disparage persons, or bring them into contempt, ridicule or disrepute, or marks otherwise considered to "comprise scandalous matter."

As the TTAB explained in its decision today, the test whether a mark is disparaging is to be determined from the perspective of the person or groups of persons "referenced" in the mark, not from the perspective of the general public. Registration is improper, the TTAB states if the mark is considered demeaning by a "substantial composite" of the group "referenced" by the mark.

In applying the first element of this two part rule, the TTAB found the imagery employed by the Washington Redskins with the marks clearly "reference" Native Americans – the helmets worn by the team players contain a stereotypical image of a Native American adorned by feathers, the team's pep band members have worn Native American headdresses, the Redskinettes cheerleading/dance team has worn "costumes suggestive of Native Americans" and the squad has even been referred to as the "Dancing Indians." Further, the cover pages of the teams annual media guides have often contained Native American imagery.

As for the second element of the two part rule, whether a "substantial" number of Native Americans consider the Redskins reference to be derogatory, the TTAB had before it considerable evidence going both ways on that issue. The evidence included materials submitted by numerous Native American individuals and tribes stating they were not offending by the Redskins reference. Conversely though, the TTAB had before it considerable other evidence that a large number of Native Americans consider the term to be a derogatory reference, a racial slur which the petitioners claimed is dehumanizing like the "N word."

The TTAB three judge panel issuing the decision today was split on the issue of whether the voluminous evidence before them was adequate to support a finding the Redskins term is considered disparaging by a "substantial composite," that is to say, significant enough percentage, of Native Americans. One judge felt the evidence was inadequate, whereas the other two, a majority of the judges on the case, found the evidence adequate enough to prove a significant number of Native Americans are offended by the term, including submissions of evidence showing that numerous Native American tribes and associations feel so. Interestingly, the TTAB decision also notes that most dictionaries issued since the 1960s even define the "Redskin" word as an "offensive" or "disparaging" reference to Native Americans.

How does this holding affect the Washington Redskins?

All is not lost for the Washington Redskins. First, it is fair to assume this is not the last word. The United States Patent & Trademark Office and the Courts have been dealing with this issue for years. The decision can, and presumably will likely be appealed through various levels of Courts. If the Courts ultimately disagree with the TTAB decision, they can vacate or reverse it ordering that the marks remain registered. The definitive word on the Redskins word may be many months, if not years away from a final determination.

Second, even if the Courts agree that the marks are disparaging and not entitled to registration, as the TTAB emphasizes in it decision, a ruling such as the one issued today only goes to the issue of whether a mark is entitled to registration. The TTAB cannot require cessation of use of the marks.

As far as the TTAB and United States Patent & Trademark Office is concerned, Washington's National Football League team is free to continuing calling itself the "Redskins" and free to continue selling Redskins emblazoned merchandise, but in doing so will no longer be afforded the benefits of a federal registration of the marks. About all this means as a practical matter is they will no longer have the right to bring expedited claims against counterfeiters of Washington Redskins merchandise, and no longer have the right to collect enhanced monetary damages against counterfeiters under federal law.

However, a mark need not be registered to prevent unapproved knock-off merchandise. Even under federal law the Washington Redskins trademarks remain enforceable against persons producing and selling unauthorized Washington Redskins merchandise. Even unregistered marks are adequate to support the entry of court orders to prohibit unapproved merchandising and to recover compensation relating to knock-off sales. As a practical matter all that is lost is the right to pursue the especially favorable relief available under counterfeiting claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Jack A. Wheat
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