Football, Intellectual Property, Sports, Trademarks

Patent Office Just Tomahawk-Chopped The ‘Redskins’ Trademark

Holy crap, it worked. Not the ads or the begging or a pointless debate with an implacable owner, but simply going through the legal system actually worked. The U.S. Patent and Trademark Office cancelled six federal trademark registrations for the Washington Redskins. The office held that the marks could not be protected because they are “disparaging to Native Americans.”

You see, not everything in this world is subject to the whim of a rich white man who doesn’t care about the people he’s offending. We are a nation of laws, and sometimes those laws even win!

The USTPO applied a two-prong test to figure out if the marks were disparaging:

a. What is the meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the goods and services identified in the registrations?

b. Is the meaning of the marks one that may disparage Native Americans?

The office easily concluded that “Redskin” was meant to mean “Native American” as the Washington Football team uses it. Putting an actual Native American on the helmet and having the band dance around like “wild injuns” in a Mark Twain novel probably sealed the deal on that.

The second prong is where the heart of the matter is:

The question is only as to the second prong, whether the term is disparaging… In other words, respondent’s alleged honorable intent and manner of use of the term do not contribute to the determination of whether a substantial composite of the referenced group found REDSKINS to be a disparaging term in the context of respondent’s services during the time period 1967-1990, because the services have not removed the Native American meaning from the term and intent does not affect the second prong. If ti is found to be disparaging during the relevant time period, then the Trademark Act mandates removal from the register.

Ballgame. Once the office determines that the alleged “honorable intent” of Washington Football Club is irrelevant, then all it has to do is find that “redskin” is in fact offensive to Native Americans. And while the decision is 177 pages long, you shouldn’t need a bunch of expert testimony to figure that out. You could just listen to old-school Chris Rock, who once said “The Washington Redskins, that’s not nice. That’s a racial slur. That’s like having a basketball team named the New York Niggas.”

Rock cracked that joke in 1990, folks. A Quinn Emanuel associate made the case in 2009. Redskins has been obviously offensive for quite some time.

You can read the full USTPO decision here. Drinker Biddle represented the petitioners, and Quinn Emanuel (once again) represented the Redskins.

Moving onto the effect of this decision… well, you’ll never have to pay full price for “Redskins” paraphernalia again. The USPTO pointed out that it has authority only over the registration of the mark, not the use. The team can still pursue common law remedies against people infringing on their )now unregistered) mark. But… good luck winning those. And good luck getting a court — the Redskins
plan to appeal — to agree that you deserve protection for a slur.

I also expect that this decision will make the National Football League force Washington Football Club owner Daniel Synder to stop being racist. Native Americans say it’s a slur, people of conscience say it’s a slur, now the federal government says it’s a slur. A football team should know when it’s beaten.

And somewhere, I’d like to imagine Chief Wahoo shaking in his caricatured moccasins.

Amanda Blackhorse v. Pro Football, Inc [U.S. Patent and Trademark Office]

Earlier: Quinn Emanuel Associate Has Reservations About ‘Redskin’ Victory
Adam Silver v. Donald Sterling: A Tale Of Two Lawyers

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