Cancelled! USPTO Kills Federal Trademark Registrations for Washington NFL Franchise
My colleague and awesome IP lawyer Stacy Cole provides this guest blog post. Enjoy!
If you’re an avid football fan (like me), you may have been following the push in recent months for the Washington Redskins to change its name, given the name’s negative racial and ethnic connotations. Whatever side you’re on, changes are afoot.
Yesterday, the U.S. Patent and Trademark Office issued an opinion cancelling Pro-Football, Inc.’s (owner and operator of the Washington Redskins) six federally registered “Redskins” trademarks, which were registered as early as 1967 and as late as 1990. The USPTO found that the petitioners, five Native Americans, had successfully demonstrated that the term “Redskins,” present in each of the six cancelled trademarks, was disparaging to Native Americans when each of the trademarks were registered.
Already the Internet has been buzzing about the opinion. But when you look at what it really means, it’s not so life-altering. The decision does not require the Redskins to change or stop using its name, its domain name, its marketing materials, or anything else. That’s not to say the decision won’t have business ramifications, but that’s beyond the scope of this post.
The USPTO only has the authority to deal with registrations and, in this case, to cancel federal registrations. Technically, the registrations have not yet even been canceled – and they won’t be until all judicial review and appeals are done.
And as Pro-Football has done before, it will appeal to the federal court of the District of Columbia. This is not the first time the USPTO has canceled the Redskins’ federal trademark registrations, for the same reasons. See Harjo v. Pro-Football, Inc., 50 USPQ2d 1705 (TTAB 1999). But the last time, the D.C. district court and the D.C. Circuit ultimately overturned the cancellations on the basis that the petitioner in that case waited too long to seek cancellation. See Harjo v. Pro-Football, Inc., 565 F.3d 880 (D.C. 2009). The Washington Redskins have defended on the same basis, and time will tell whether the federal courts will overturn the cancellations again, based on the same defense.
Washington owner Dan Snyder had already vowed that he will never change the name, and it will be interesting to see whether he succumbs to louder and less subtle calls (and almost certainly increasing business pressure) to make a change. While the USPTO’s decision may not force his hand, it certainly sends a clear message.