The U.S. Patent and Trademark Office, Trademark Trial and Appeal Board (USPTO) voted 2-1 on Wednesday (June 18) to cancel the six-trademarks for the NFL's Washington Redskins because it was deemed “disparaging” to Native Americans.
The lawsuit was initiated by five Native Americans on the ground that the trademark registrations for ‘REDSKINS’ in connection with professional football services were obtained in violation of Section 2(a) of the Trademark Act of 1946, which prohibits registration of marks that may disparage persons or bring them into contempt, ridicule or disrepute.
As evidence in this case, members of various Native American tribes and nations testified that the term REDSKINS was “derogatory” and akin to the term “nigger.” The Plaintiffs argued “people should not profit by dehumanizing Native Americans.” The USPTO also pointed to the Washington Redskins’ continuous efforts to associate its football services with Native American Imagery to support of finding that the term is disparaging to Native Americans.
This issue was previously litigated in 1992 and the USPTO ruled then that the marks were disparaging. However, the Pro-Football, Inc., which represents the interest of the Washington Redskins in these matters, successfully appealed the earlier ruling and it was reversed. In the current litigation, Pro-Football, Inc. raised the same affirmative defenses as before and still has the right to appeal the decision, but will it?
Washington Redskins has faced growing scrutiny from Native Americans and Congress. United States Senate Majority Leader, Harry Reid (D-NV) praised the USPTO for its decision. High schools throughout the country have changed mascots from stereotypical depictions of Native Americans to uncontroversial animals like eagles and tigers in response to public pressure.
The USPTO is clear to note that it does not have the jurisdictional power to stop the franchise from using the term REDSKINS, but merely that it no longer has trademark protection. Without the trademark protection, the Washington football franchise stands to lose millions in licensing deals for its jerseys and even radio and televisions broadcast.
As Americans become keener on matters of race, the franchise could face severe backlash if it appeals and boycotts of Redskins merchandise are sure to ensue. It may be time for the Washington Redskins to read the writing on the wall and commence the search for a new franchise mascot and name.
Stacy M. Allen, Attorney at Law (@SMAllen_Esq)