The Battle for the Washington Redskins’ Trademark Rages On

Written by: Sonia Faizy

After nearly two decades, 9,000 billable hours later,[1] and approximately $3.5 million in pro bono legal services for the Native American petitioners,[2] the battle over the Washington Redskins’ trademark continues to rage on with no clear end in sight.On June 18, 2014, the U.S. Patent and Trademark Office (USPTO) canceled the Washington Redskins’ six federal trademark registrations based on a trademark law provision in the Lanham Act[3] prohibiting marks with “immoral, deceptive, or scandalous matter” or “matter which may disparage…persons…or bring them into contempt or disrepute…”.[4] After the Trademark Trial and Appeals Board (TTAB) order against the Redskins on June 18, 2014, the team appealed the decision, claiming that the Lanham Act violated the team’s First Amendment rights, and that the opposing parties failed to meet their legal burden of proving that a sufficient percentage of Native Americans found the term offensive. On July 8, 2015, the trial court denied the Redskins’ Motion for Summary Judgment and affirmed the TTAB’s previous trademark cancellation order. Most recently, on October 3, 2016, the U.S. Supreme Court declined to hear the Washington Redskins’ case before a ruling by a federal appeals court.

Despite the numerous back-to-back victories for Amanda Blackhorse, Suzan Harjo, and the three other Native American petitioners, Daniel Snyder, the football team’s current owner, has sworn that he “will never change the name of the team.”[5] Snyder claims that “the Redskins’ fans understand the great tradition, and what it’s all about, and what it means.”[6] But critics contend that the term “redskin” originated “in the practice of presenting bloody red skins and scalps as proof of Indian kill for bounty payments.”[7] The Redskins vehemently deny the allegations that the mark is disparaging to Native Americans and claim that continuing the tradition of the Redskins’ name will preserve honor and respect for Native American Heritage.[8]

Some critics assert that the Native Americans challenging the Redskins name are only doing so for the potential money damages. Native American activists maintain that they were never motivated by monetary gain, but simply wanted the team to stop using the name. But, the group says that after unavailing efforts to dissuade the NFL’s third most valuable franchise[9] from continuing using the “Redskins” name, the group took legal action that did carry potentially severe financial consequences for the team. A trademark protects the brand name or logo that identifies and distinguishes the source of a good or service.[10] But a trademark cancellation is not the same as an order prohibiting a party from using that name in connection with the same business. Rather, in the event of registration cancellation, the team could not sue infringers for damages or have the exclusive right to nationwide use of the mark, but it could still use the name. If the Redskins fail on appeal, and the trademark is ultimately cancelled, the team will have to choose between using its current name and losing IP rights, or registering a new trademark on which it could capitalize.