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Redskins trademark canceled by U.S. Patent and Trademark Office

- The Washington Times - Wednesday, June 18, 2014

A panel of judges with the U.S. Patent and Trademark Office on Wednesday canceled what they called "disparaging" trademarks associated with the Washington Redskins for the second time in 15 years amid mounting political pressure on the team to change its name.

"We decide, based on the evidence properly before us, that these registrations must be canceled because they were disparaging to Native Americans at the respective times they were registered," the judges wrote in an 81-page ruling.

The action, which would impact six different trademarks, does not have any immediate effect, nor does it bar the team from using the nickname. It allows for a federal court review of the decision, and it stipulates the team does not have to act on the ruling until the appeals are exhausted — a process likely to take years.

Team owner Daniel Snyder declined to comment on the development after Wednesday's minicamp practice at Redskins Park in Ashburn, Virginia. Bob Raskopf, trademark attorney for the team, said in a statement that the team would appeal the decision.

Even if the team were to lose an appeal, the loss of the federal trademark is more a symbolic blow than a fatal one. Legal experts say the Redskins' trademarks would still be protected under common law, and the team would be able to pursue legal action against anyone who used the logo or name without permission, for instance to make knockoff hats or jerseys.

"While this probably is a moral victory for people who don't like the term, it isn't going to keep the team from using the term or even suing other people who are," said Kristen Osenga, a law professor at the University of Richmond School of Law. "I don't think they are going to lose a whole lot of anything because of this, even if they lose their appeal."

If the team's inability to protect its trademark and logo were to result in a revenue loss, the effects would be felt across the entire league thanks to profit-sharing agreements. NFL teams pool their merchandising revenue and then divide it, meaning that while the Redskins wouldn't be financially crippled, other NFL team owners might feel compelled to pressure Mr. Snyder to address the situation, said Marc Edelman, law professor at the Baruch College's Zicklin School of Business.

"It could indirectly affect the other 31 NFL team owners as well," Mr. Edelman said. "This might put some pressure on Daniel Snyder to change the team name from some of the other NFL owners, who will not want to deal with the extra challenges in policing the team's marks."

Brian McCarthy, the NFL's vice president of corporate communications, said via email that the league had no comment on the ruling beyond Mr. Raskopf's statement.

The legal challenge against the Redskins was brought in 2006 by five American Indians who filed a complaint with the Trademark Trial and Appeal Board on the grounds that laws prohibit "registration of marks that may disparage persons or bring them into contempt or disrepute."

The ruling, which looked in detail at the history of the team's name and logo and the use and connotations of the word "redskins," impacts the team's name and the name of the cheerleader squad, the Redskinettes, as well as a series of stylized logos registered between 1967 and 1990.

The ruling was affirmed 2-1 by a three-judge panel and written by Administrative Trademark Judge Karen Kuhlke. Also on the panel were Judge Peter W. Cataldo and Judge Marc A. Bergsman. All three judges were appointed during the administration of former President George W. Bush.

Judge Bergsman dissented from the decision to cancel the trademark, saying "To be clear, this case is not about the controversy, currently playing out in the media, over whether the term 'redskins,' as the name of Washington's professional football team, is disparaging to Native Americans today."

The judge said the panel was tasked with deciding whether the term was disparaging at the time each of the challenged registrations was issued, and in an 18-page dissent he was deeply critical of the arguments supporting that position.

"It is astounding that the petitioners did not submit any evidence regarding the Native American population during the relevant time frame, nor did they introduce any evidence or argument as to what comprises a substantial composite of that population, thereby leaving it to the majority to make petitioner's case have some semblance of meaning," Judge Bergsman wrote.

Wednesday's decision comes after the Trademark Trial and Appeal Board in 1999 stripped the Redskins of trademark protections based on a similar claim filed in 1992. A federal judge overturned the board's decision in 2003 on the legal grounds that the plaintiffs waited too long to bring their case — 25 years passed between 1967, when the first trademark was granted, and the time the case was brought. That ruling did not render a decision on whether the name Redskins was offensive, but rather it simply spoke to the Native American group's lack of evidence and the "legal sufficiency" of the trademark board's decision.

"We've seen this story before. And just like last time, today's ruling will have no effect at all on the team's ownership of and right to use the Redskins name and logo," Mr. Raskopf said.

The Redskins will now have the option of challenging the board's ruling in either the U.S. Court of Appeals for the Federal Circuit, which would review information presented to the board, or in U.S. District Court, where the team could move for a full trial and introduce additional evidence.

The technicalities about the length of time plaintiffs waited to challenge the trademark should not be an issue in any future appeals because the plaintiffs in the latest case were all younger than 24 at the time they joined the challenge and could not have brought any challenge before turning 18, Ms. Osenga said.

"I think the five challengers they have now are spot-on. No one is going to argue them now," she said.

Amanda Blackhorse, a Navajo activist and one of five petitioners who brought the case, said she was "extremely happy" with the ruling.

"It is a great victory for Native Americans and for all Americans," she said. "We filed our petition eight years ago, and it has been a tough battle ever since. I hope this ruling brings us a step closer to that inevitable day when the name of the Washington football team will be changed."

In recent months a growing chorus of activists and lawmakers has called on Mr. Snyder to rename the team, including President Obama, who said he would think about changing the name. Last month, 50 U.S. senators wrote to the team's owner, urging him to rename the franchise. But Mr. Snyder has steadfastly insisted he would keep the name Redskins, saying it honors Native Americans.

Asked in May 2013 by USA Today if he would consider changing the name if the team lost the trademark battle, Mr. Snyder was unequivocal.

"We'll never change the name," the paper quotes him as saying. "It's that simple. NEVER — you can use caps."

The franchise originally was located in Boston and was called the Braves. George Preston Marshall purchased the team in 1932. In an effort to honor then-coach William "Lone Star" Dietz, an American Indian, the team was renamed the Redskins the next year.

But that narrative came under fire recently after an 81-year-old published interview surfaced in which Marshall told The Associated Press the story was not true.

The franchise moved to Washington in 1937.

Polls produced by both sides suggest a split in how American Indians feel about the name, and public opinion has generally been on the side of the team. A poll of 1,004 people jointly conducted by The Associated Press and GfK in April 2013 showed 79 percent of Americans favor keeping the name.

But a high-profile campaign mounted during the football season by the Oneida Indian Nation and recent controversy over racist remarks made by the owner of the NBA's Los Angeles Clippers have renewed debate about whether the football team's name is inappropriate.

Sen. Harry Reid, the top Democrat in Congress, has delivered speeches from the Senate floor demanding a change and earlier this week penned a letter reiterating his plea.

He said Wednesday the ruling striking down the trademark was a victory for American Indians across the country, and it shows the NFL team will have to change its name.

"The writing's on the wall," Mr. Reid said. "Dan Snyder may be the last person in the world to realize this, but it's just a matter of time until he's forced to change and do the right thing."

But the ruling against the team that plays its games just outside of a city already steeped in partisan politics could serve to galvanize groups already suspicious of government overreach.

"There's the distinct potential that people will see this as being cowed by big government," business litigation attorney David Shlansky said. "I could really see this becoming a way to express one's antipathy to political correctness or intrusion by the government."

Stephen Dinan and Brian McNally contributed to this report.

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