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| The Washington Redskins' logo |
On
Thursday, March 7, 2013 the Trademark Trial and Appeal Board for U.S. Patent
and Trademark Office (the "TTAB") heard oral arguments in a case involving a decades-old question: whether the Washington Redskins' federal trademark
registrations should be cancelled because they are allegedly offensive to Native
Americans.
The case has now been fully briefed and submitted for a
decision. All that remains now is the court's determination: Will the Washington Redskins
franchise lose its federal trademark registrations?
Commentators' predictions are mixed. Some argue that, if history is any judge, it would appear that Native Americans are poised to win this most recent battle cancelling the Washington Redskins' famous trademarks. Others aren't so sure, but argue that the poor publicity involved should counsel a branding change.
All commentators agree that what
would likely occur if the worst case scenario happens to the Redskins would be years of further appeals to delay the
impact of the ruling. Will the Washington Redskins continue use its brand in
the interim?
When
confronted with this question, the owner of the team announced that it will "NEVER change its
name." (capital letters in original).
But what
would happen, long term, if the team loses its federal trademark registrations?
Wouldn't the team still possess at least some rights to prohibit third party
uses?
Probably not. Third parties would begin using the name in an unauthorized manner, and take their chances. Without any federal trademark registrations and with a precedential public ruling finding the marks to be offensive and scandalous, the team would face an uphill battle legally protecting and further monetizing its existing brands.
From a
practical standpoint, the team would probably face an onslaught of rampant counterfeiting that it could not legally stop. Without any valid or enforceable federal trademark
registrations on file, the team would not be able to avail itself of the criminal and other protections
that the law authorizes against counterfeiters. Similarly, there would no
longer be any legal bar to importation of unauthorized items bearing the team's name or logos.
Perhaps
worse yet, the various lucrative licenses for team-branded products and third
party endorsements could be prospectively ignored on the grounds that the
team lacks any appreciable intellectual property rights to further license.
It is also worth noting that, even if the team wins this round in the TTAB, some Congressional Democrats have attempted to legislate the issue against the team.
Perhaps the moral of the story is "never say
never" when it comes to branding and intellectual property.
