The Washington Redskins' appeal of the decision to strip the trademark from its controversial name will focus on the nation's racial past, according to lawyer Alexander Brown, who specializes in business and intellectual property litigation.
"It’s not looking to see whether its offensive today, it's looking at whether it was offensive back in the time … [it was] adopted,'' Brown, of the Fort Lauderdale firm of Tripp Scott, told "The Steve Malzberg Show'' on Newsmax TV.
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Last week in a divided ruling, the U.S. Patent and Trademark Office canceled trademarks of the NFL team's name, issued from 1967 through 1990, saying the team's name is "disparaging to Native Americans."
"It’s common in a sense that the trademark office will often review applications for trademark and reject certain names that are clearly offensive,'' Brown said. "But when you look at the [Redskins] decision … that is uncommon especially since the trademarks at issue … date back to 1967.
"The test the Trademark Trial and Appeal Board has to apply, and now the courts will have to apply is, was it offensive back in 1967 through 1990 when the other trademarks were issued?
"You don’t want somebody coming out of the woodworks 20, 40 years later after billions of dollars in this particular instance have been spent to promote a mark and then try to take it away.''
Brown said regardless of the appeal's success or failure, the Redskins will still have the right to use the name and image of the Redskins.
"Too much time, energy and a lot of money has been invested into this organization, into the mark,'' he said.
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