Redskins’ Trademark Cancellation Takes Fight over Name to a New Level

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Washington Redskins
The United States Patent and Trademark Office decided Wednesday to revoke the trademark on the Washington Redskins’ name. Some say if the decision is upheld it is only a matter of time — though probably several years’ time — before the team will have to abandon the name altogether.

You may have heard it explained that this decision does not strike down the name and that its immediate practical effect on the franchise — whose owner Dan Snyder had promised to “NEVER” (in all caps, just like that) change the mascot — is almost nil, as the team has years’ worth of appeals to exhaust. But the decision includes a thorough, tightly reasoned rebuttal of the common arguments Snyder and co. have put forth for keeping the name and, if upheld, puts pressure on the NFL to intervene.

The judges found Snyder’s “alleged honorable intent” irrelevant to the question of whether the name is disparaging of Native Americans. They said they could find no example in their review “where a term found to be a racial slur in general was found not to be disparaging when used in the context of specific services.” They also found Native Americans’ opposition to the term consistent, and figured that in 1967, when the team’s first trademark was registered, “at a minimum, approximately thirty percent of Native Americans found the term . . . disparaging.”

Forbes has pointed out that just because the team may lose their right to register the name as a trademark, they still have common law trademark rights that they could invoke to fight unlicensed merchandise. But the New York Times still sees this as a financial blow. Without presumption of ownership of the trademark, legal fights against counterfeiters could be more costly, and bootleg Redskins swag from overseas has a greater chance of making it past United States Custom and Border Protection.

If revenue is lost to counterfeiters, that could hurt Nike — which has an exclusive licensing agreement with the NFL — as well as the league generally, which shares merchandise profits. And those groups are less likely to feel they have any stake in defending a racial slur. It’ll be interesting to see what transpires.

 

 

 



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