With the recent decision by the appellate board of the U.S. Patent and Trademark Office to cancel the Washington Redskins’ federal trademarks, what is next for the team?
The decision was made based on the belief that the term ‘Redskin’ is a slur, and this in turn, falls under regulation that says you cannot patent a derogatory slur or a curse word. The decision will not take effect immediately however. What happens next is a very long and drawn out appeal that can take around five years to get re-tried at the federal-district court level, go to a court of appeal, and perhaps even the Supreme Court.
Throughout this entire period, the registration of the trademark will stay in place.
During the time of this appeal process, the Washington Redskins’ lawyers are most likely going to be shoring up all of their state trademark registrations and contractual provision because you don’t need a registered trademark to sue for trademark infringement.
Assuming that the registration cancellation sticks, some rights will be taken away from the franchise, but in no way will this decision take away the team’s ability to use the name “Redskins” or even to use their old logo. Not having the registered trademark will cause the Redskins to incur more expense and delay in enforcing their trademark. The decision adds a layer of uncertainty that trademark infringers may decide is worthwhile to take advantage—they may even find it profitable to do so even while subjecting themselves to enforcement suits by the Redskins.
Where things could go wrong for the Washington Redskins is if the courts in these latter enforcement suits were to adopt the U.S. Patent and Trademark Office opinion that the term “Redskins” is not a trademark-able. This scenario is unlikely, but still a possibility.
Below are some reasons the ruling could get overturned:
- It is unclear why the people who brought this case to the U.S. Patent and Trademark Office have standing to challenge the team’s name.
- The court could see the term ‘Redskins’ more contextualized and side with the Washington Redskins that the term is a contextualized usage, and it is not being used in a way (or intended to be used in a way) that is offensive.
If the Washington Redskins, and other teams later on, do decide to change their name, it is doubtful that it will be due to legal reasons. If name changes do occur, it will be due to the market pressure, and it will boil down to more of a business decision.