As expected, the Washington Redskins have appealed the recent TTAB decision to cancel the team’s trademark registrations.
The appeal has come in the form of a formal complaint filed in the United States District Court for the Eastern District of Virginia, effectively suing the Native American petitioners who had initially begun the cancellation proceedings against the team.
The complaint argues that the TTAB made several errors and failed to consider important constitutional issues relevant to the case at hand. A statement that the team released the same day of the filing states that the TTAB "improperly penalized the Washington Redskins based on the content of the team's speech in violation of the First Amendment" and that "the team has been unfairly deprived of its valuable and long-held intellectual property rights in violation of the Fifth Amendment."
The day before the appeal was filed, the team also released a new online video supporting their controversial name. The brief video, titled “Redskins is a Powerful Name,” shows interview clips of several Native Americans who believe that the Redskins’ team name is not offensive and is instead a proud and unifying term. These Native Americans explain that the team name and mascot “isn’t an issue” and that they would prefer to focus on more important issues facing their community, like healthcare, crime, employment, and substance abuse.
THE COMPLAINT ARGUES THAT THE TTAB MADE SEVERAL ERRORS AND FAILED TO CONSIDER IMPORTANT CONSTITUTIONAL ISSUES RELEVANT TO THE CASE AT HAND.
The team’s decision to file in the Eastern District of Virginia, instead of the U.S. Court of Appeals for the Federal Circuit, could have a number of important implications on the litigation. First, it could change the standard of review of the court. Pursuant to 15 U.S.C. § 1071, a party who is dissatisfied with a decision by the TTAB may either take an appeal to the U.S. Court of Appeals for the Federal Circuit or commence a civil action in a federal district court. If the applicant appeals to the Federal Circuit, the appeal is decided based on the record before the TTAB. However, if the applicant commences a civil action, the administrative record may be supplemented with new evidence. By filing in the Eastern District of Virginia, the team can now introduce fresh evidence into a case that has been largely limited to decades-old testimony that has already been widely examined. The court here will have "de novo" review, which means that the court will not have to defer to the TTAB’s findings and that the Washington Redskins’ could in effect have a greater likelihood of overturning the decision.
Even though the Eastern District of Virginia is referred to as the "Rocket Docket" and is known for fast resolutions of cases, it will likely be some time before we have any definitive legal ruling on this matter. But, in the meantime, both sides are sure to continue their strong efforts in and out of court.
For more information on the TTAB's decision and the possible implications, please refer to Is this the end of the "Redskins"?