The Trademark Trial and Appeal Board (TTAB) ruled last week that the Washington Redskins name is "disparaging to Native Americans," and therefore its trademarks must be canceled. Pundits immediately jumped on this decision and have started to forecast financial doom and gloom for the Redskins organization.
Many are suggesting that without trademark protection, the Redskins logo is available to the public for unfettered use. Despite his unwavering proclamation to keep the name of Washington’s NFL team, the potential financial and political implications of losing trademark status lead many to believe that owner Daniel Snyder will ultimately change it.
Senate Majority Leader Harry Reid joined the discussion and preemptively and incorrectly declared on the floor of the Senate that "the Redskins no longer have trademarks. They are gone …. It’s just a matter of time until [Snyder] is forced to do the right thing and change the name."
Fortunately for Snyder, Reid is incorrect. Snyder may lose the senior senator from Nevada as a fan, but patent law may enable him to keep the Redskins name.
The split decision by the TTAB to cancel the team's trademarks only relates to those in use by the football club between 1967 and 1990. The decision does not suggest the cancellation of its current trademark, or any mark used by the football club since 1990. Regardless of which trademarks are at issue in the TTAB’s decision, the decision is not final, and the marks will not be canceled until the appeals process is complete.
For argument's sake, let’s assume the highest court to hear the case rules against the Washington Redskins and affirms that the mark must be canceled. In such an event, Reid would still be wrong.
What he fails to understand is that the right to use a trademark is not determined by whether a trademark is registered at the Patent and Trademark Office. Rather, federal registration only confers additional substantive and procedural benefits to a trademark holder. Cancellation of a trademark – or failure to even register a trademark – does not deprive one from enforcing his or her trademark rights under common law trademark principles.
As one federal court has recently ruled, "when a registration is canceled … the trademark itself is not necessarily invalid or unenforceable. Trademarks are created by use, not registration. Federal registration creates valuable substantive and procedural rights, but the common law creates the underlying right to exclude."
Because of these legal principles, the "legal reality" in this instance is that the Washington Redskins should continue to enjoy the unabated right to use their mark and exclude others from using it, regardless of whether the federal court system confirms the TTAB’s cancellation decision.
However, it is all but certain that groups will attempt to profit off the Washington Redskins’ trademark by selling counterfeit items, and then will defend any suit brought by the football club against them by arguing that the name is "disparaging" and, therefore, should not entitle the Washington Redskins organization to trademark protection.
If the common law principles of trademark protection continue to be enforced as in the past, such a defense should fail. Indeed, think of the hypocrisy of such a defense – if you’re being sued by the Washington Redskins, you undoubtedly are using the Redskins name to sell your business’ goods or services.
Now, putting all of the legal jargon aside, the political reality may unfortunately pressure Snyder to eventually cave to the public pressures of a vocal minority and change the name. If sales are affected — because of counterfeiters, boycotts, or both — the NFL and other league teams may eventually put enough pressure on Snyder to change the team’s name.
The NFL has a unique revenue-sharing program in which the teams pool revenue from sources such as broadcast deals and licensing deals (i.e., for team merchandise), and shares 50 to 75 percent of all revenue evenly among the teams. So if the NFL and other team owners start feeling it where it hurts – the wallet – they may start to put pressure on Snyder. Or Snyder will continue to enjoy watching his Redskins on Sunday with Reid foolishly standing outside in the cold wielding a picket sign.
While the TTAB’s cancellation will continue be widely applauded by those who proclaim the virtues of political correctness, the law is such that it should protect Snyder’s right to use the trademarked Redskins name. But given recent events, one must ponder if Reid and his cohorts care about the law.
As a diehard football fan, and patent and trademark lawyer, my only wish is that the likes of Reid and other political leaders stop inserting themselves into frivolous issues engineered to spur emotionally charged outrage. Perhaps it is time for Reid to channel his energy into passing a budget, as the Constitution requires.
Alexander Brown is a partner and co-chairman of the intellectual property practice at the Tripp Scott law firm in Fort Lauderdale, Florida.
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