On June 18, the Trademark Trial and Appeal Board (TTAB) issued a decision ruling that six of the Washington Redskins’ trademark registrations, some dating back to as early as 1932, are now cancelled.
The panel’s general basis for the ruling was that the meaning of “redskins” is disparaging to Native Americans. More specifically, the panel was to consider the issue: Is the word “redskins” in connection with professional football-related services disparaging to a “substantial composite” of Native Americans at the time each of the challenged registrations issued? After reviewing the evidence presented, the panel decided that it was. The panel first analyzed testimony, reports, experts, dictionary definitions, and reference books in order to ascertain the meaning of the word “redskins” at the relevant time period. They determined that even back during the relevant time frame from 1967-1990, the term was indeed disparaging. They then read through newspaper articles, letters of protest from Native Americans themselves, and several statistics put forth by the National Congress of American Indians (NCAI). The panel seemed to rely heavily on one particular statistic – that 30 percent of Native Americans believed the term to be disparaging. The court determined that such a percentage is “clearly probative” of the views of Native Americans held at that time and so the marks must be cancelled.
The Washington Redskins’ attorneys have made it clear that they plan on appealing the ruling. However, if the decision ultimately stands, it could have serious and significant implication for the team. In this case, it is important to note that the Washington Redskins are not forced to change their name because of this decision. They can continue to use their mark and stop others from using the mark through common law protections, instead of a federal registration. However, without a federal registration, the team will not be able to take advantage of remedies reserved for federally registered trademarks and will not be able to record the mark with U.S. Customs, which could result in a large amount of counterfeit merchandise entering the U.S., and ultimately lost profits for the team. The ruling, if it stands, can also have a major impact on the team’s merchandise sales. If the financial pressure becomes large enough, the team could end up deciding to change their name in the long run.
TRADEMARK OWNERS SHOULD CONSIDER KEEPING UP WITH CHANGING TIMES AND ADJUSTING THEIR TRADEMARKS ACCORDINGLY.
This ruling could also have a domino effect of influencing other major sports teams to change their names or logos, such as the Cleveland Indians, Chicago Blackhawks and other teams that use Native American references in their names.
The reasoning behind the TTAB’s decision, although morally sound, seems to raise a number of broader questions. What happens if society’s views on a term change? Can a registration ever really be safe? Although the term “redskins” is understandably viewed as offensive, what is the tipping point for “substantial composite”? Could this open up other trademark owners to cancellation proceedings for their allegedly disparaging marks?
The Washington Redskins’ future appeal could potentially answer some of these questions. But for now, trademark owners should consider keeping up with changing times and adjusting their trademarks accordingly. Although some marks may have been acceptable in the past, society and language continue to evolve. Trademark owners should think ahead so that if there is a need for a change in a mark (for legal and/or public relations reasons) it can be done on the owner’s time frame and not forced immediately by the legal system.
To read the full TTAB decision, click here.