What if the Redskins Lose Their Trademarks, But Keep Using Them?

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.

Egyptian Olympians Sporting Counterfeit Uniforms

The Huffington Post is reporting that Egypt, in understandably dire economic straits given its recent political upheaval, chose to save some money by purchasing its London 2012 Olympic uniforms from a Chinese supplier.


That regrettable decision has led to the Egyptian Olympians being decked out in wholly counterfeit apparel that display both fake Nike and adidas logos.


Nike has brought the issue to the team's attention, and has raised valid safety and quality concerns about the counterfeit apparel.

Trademarking Phrases Among Athletes Raising Eyebrows -- Literally

In the last several years, popular nicknames and phrases associated with star athletes have become the subject of numerous contested trademark applications and ownership disputes.   

Most recently, in June 2012, top NBA draft pick Anthony Davis filed intent-to-use (ITU) trademark applications for "FEAR THE BROW" and "RAISE THE BROW." The athlete is known not only for his star prowess on the court but for his truly prominent "unibrow."  Davis may have taken a lesson from other modern star athletes by getting out ahead of the issue and clarifying brand ownership early.

For example, Jeremy Lin's team of high-priced trademark lawyers have successfully fended off half a dozen applicants for "LINSANITY, New York Jets quarterback Tim Tebow's top-notch trademark lawyers battled squatters over rights to TEBOWING and Terrell Suggs has battled others for a phrase BALL SO HARD UNIVERSITY, which he has used to refer to his fictional alma mater.  And we can't forget "THAT'S A CLOWN QUESTION, BRO" is now the subject of a trademark application by Bryce Harper, who used the quip to respond to a reporter's question.

While huge trademark-induced endorsement deals are now common, trademarking popular nicknames and catchy sports phrases is not new, either. Pat Riley obtained a trademark for the term “three-peat” in 1989, when he coached the Los Angeles Lakers. But all of the recent legal activity involving the trademarking of athletes' nicknames leads to the inevitable question:  Would the iconic players of yesteryear been as aggressive in protecting their personal nicknames as brands?

It is impossible to say, of course, but it is worth noting that the late Joe DiMaggio's estate trademarked "JOLTIN' JOE" in 2007 for everything from baby rattles to Christmas tree ornaments.