By James Irwin
Public debate over the Washington Redskins’ nickname has been recharged again, after the U.S. Patent and Trademark Office decided last week to cancel the team's trademark on the basis that it is “disparaging to Native Americans.” It’s the second time in 15 years the USPTO has cancelled the football franchise’s trademark—the 1999 decision was overturned by a federal court on appeal in 2003.
George Washington Today spoke with GW Law Professor Roger Schechter about the legal implications of the cancellation, and the concurrent public opinion battle.
Q: What does the cancellation of the Redskins trademark mean legally?
A: Not much, actually. Trademark rights in the United States are creatures of state law that arise as soon as you use a trademark. You can get added, modest benefits by registering a trademark with the federal government. One benefit, in litigation, is you can offer the federal registration certificate as an exhibit to prove ownership. But that would never be a problem for the Washington Redskins; they could prove ownership without any difficulty. Another advantage is federal registration is sometimes a prerequisite for protection in foreign countries, so if the Redskins want to protect the mark in Germany they might need federal registration. But the nature of their business is they probably don’t have a great deal of economic interest in Germany, because Germans don’t care about American football.
So, the practical consequences of having the trademark cancelled, even if this were a final decision, would be relatively minor. Then we add that this is not a final decision—it’s an administrative agency decision, and the team gets to appeal.
|Many teams have opted to change names, either proactively or under pressure, said GW Law Professor Roger Schechter.|
Q: This happened in 1999. Is the situation different this time?
A: I think the public relations issue is different now, just because there has been a steady drumbeat of criticism against this name the last several years. We now have quite a few high-profile individuals, including President Obama, suggesting the time is right to change the name. The climate is different—15 years makes a big difference in terms of public consciousness. Look at the way society has evolved on gay marriage. Look at how we’re currently experiencing a warp-speed evolution on marijuana legalization. This is not about technical legal consequences; this is a PR game. It’s about a formal, governmental declaration that the mark is offensive that will, at least in the opinion of some people, apply extra pressure on [team owner] Dan Snyder.
Q: Is there precedent? Has a sports franchise changed its name because of a cancelled trademark or public pressure?
A: I don’t know of any prior cancellation proceedings, though that’s not saying it’s never happened. There have been many teams that have opted to change their names, either proactively or in response to pressure. For instance, the Cleveland Indians are discontinuing the use of their [Chief Wahoo] logo. They’re still called the Indians but they’re phasing out the use of the caricature of a grinning Indian’s face. A more local example would be Abe Pollin changing the name of the Washington Bullets. That team originally was in Baltimore, and to some degree “Bullets” was chosen because it was alliterative. And then you move into D.C. [in 1974] and the feeling was it was inappropriate, because the crime rate in D.C. was out of control and it sounded like they were celebrating the idea of shooting people.
Q: Could the NFL and its teams exert pressure against the use of the Redskins name?
A: That would depend on the bylaws of the NFL. But there may be pressure from the league and other owners from the PR angle. Professional football has had a bad run over the past few years. There has been a great deal of publicity about brain damage and concussions and retired players dying prematurely and suffering a great deal. I’m sure there are people talking about how this [Redskins situation] is a problem they don’t need to have and would want to go away.
Q: What happens next?
A: The Redskins have a choice to make: whether to appeal to the U.S. Court of Appeals or ask for a trial in the U.S. District Court. The last time, they opted to use the trial mechanism. The advantage of going to district court is it’s basically a complete do-over—lawyers call it a “trial de novo”—and if they go to district court, we’re looking at a timeline of anywhere from a handful of years to five or more years. That’s exactly what happened last time. The law moves at a geological pace. Now, PR pressure is a different story, and could cause a name change before the case comes to a conclusion.