The Washington Redskins’ Trademark Registration: Going, Going, Gone?
Ashley L. Angello, KLJ Staff Editor[1]
The Washington Redskins’ name has recently come under fire for its derogatory connotations toward Native Americans. While this criticism certainly is not new,[2] it is the first time Native American activists have been so successful in their attack on the franchise name.[3] In July of last year, the U.S. Patent and Trademark Office cancelled six trademarks (“marks”) held by the NFL team due to the disparaging nature of the team name.[4] The U.S. District Court of the Eastern District of Virginia subsequently upheld the decision, waving off Washington’s First Amendment claims because the “federal trademark program is government speech.”[5] Now the team has appealed to the U.S. Supreme Court, claiming the Redskins brand is just as entitled to trademark registration and accompanying protections under the Lanham Act as any other profane brand name protected by the federal trademark statute.[6]The nation’s capital does not have the best track record with sports teams’ names. Amid harsh criticism from fans, the former owner of the basketball team, Abe Pollin, began a campaign to change the name of the then-Washington Bullets in 1996.[7] Pollin’s incentives were policy-based, though: He ditched 32 years of history in favor of a new franchise name that “portrayed a nonviolent image.”[8] Ultimately, the team adopted the “Wizards” as its new name, which took effect at the beginning of the 1997 season.[9]The Redskins’ owner, Dan Snyder, however, has been consistently vocal and steadfast about his unwillingness to yield to activists and critics, even in the face of a lost trademark battle.[10] Unlike Pollin, Snyder values the “great tradition” of the name, but he also risks losing a great deal should the Supreme Court uphold the district court’s ruling.[11]Cancelling the Redskins’ registrations eliminates other protections afforded by the Lanham Act.[12] For example, if the marks are permanently cancelled—pending the exhaustion of appeals the marks remain current—the team may no longer pursue a cause of action under the federal statute for infringement, meaning counterfeit merchandise potentially goes unchecked.[13] Therefore, while Snyder’s fortitude is admirable, trademark loss may ultimately reach into not only his pockets, but may also rob the franchise’s piggy bank.If preservation of the 78-year-long franchise is Snyder’s top priority, he may well concede the financial losses and other federal trademark protections if the Supreme Court affirms the registration cancellations. His other, much more appealing option may be to pursue continued protection at the state level, in any or all of the three jurisdictions surrounding Washington, D.C.[14] This option still provides for many of the same trademark safeguards within, for example, the Commonwealth of Virginia, but the protections would not extend beyond state lines, as the Lanham Act’s do.[15] The other alternative would be the Pollin route—extinguishing nearly 80 years of long-standing tradition, replacing it with a new, unfamiliar name and graphic. Luckily though, until the Court rules during its upcoming term, Snyder and the Redskins’ marks remain in safe harbor.[1] J.D. expected May 2017.[2] See, e.g., Pro-Football, Inc. v. Harjo, 415 F.3d 44 (D.C. Cir. 2005) (overturning Trademark Trial and Appeal Board’s cancellation of Redskin’s six trademarks).[3] See, e.g., Ken Belson, Redskins Lose Round in Battle Over Name, N.Y. Times (July 8, 2015), http://www.nytimes.com/2015/07/09/sports/football/trademark-ruling-goes-against-redskins.html?_r=0.[4] Id.; In order to register, a trademark cannot consist of “matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols.” 15 U.S.C.S. § 1052(a).[5] Pro-Football, Inc. v. Blackhorse, 2015 U.S. Dist. LEXIS 90091 (E.D. Va. July 8, 2015).[6] See supra note 3; see also 15 U.S.C.S. § 1052(a) (2012).[7] See Jerry Bembry, In Name Choice, Fans Settle for “Wizards”, Baltimore Sun Times (Feb. 23, 1996), http://articles.baltimoresun.com/1996-02-23/sports/1996054046_1_wizards-owner-abe-pollin-bullets.[8] NBA Washington Wizards, Behind the Name, http://www.nba.com/wizards/news/behind_the_name.html (last visited Nov. 9, 2015); see also id.; NBA Encyclopedia Playoff Ed., Going Retro: Washington Wizards, http://www.nba.com/history/uniforms_wizards.html (last visited Nov. 9, 2015).[9] See supra note 2.[10] Erik Brady, Daniel Snyder Says Redskins Will Never Change Name, USA Today (May 10, 2013, 8:14 AM), http://www.usatoday.com/story/sports/nfl/redskins/2013/05/09/washington-redskins-daniel-snyder/2148127/.[11] Id.[12] 15 U.S.C.S. § 1065 (2012).[13] 15 U.S.C.S. § 1114–15 (2012).[14] Virginia Trademark and Service Mark Act (1998), Va. Code Ann. § 59.1-92.1 et seq.; D.C. Code § 47-2855.01 et seq. (registration of trade names); Md. Business Regulation, Code Ann. § 1-401 et seq.[15] See supra note 14.