By Sam Farmer, Tribune newspapers
7:46 PM CDT, June 18, 2014
The Redskins once wore a circled R on their helmets.
Now, they could become the first NFL team without a circled R — as in registered trademark — on their logo.
The push to convince the Redskins to change their nickname entered a new phase Wednesday, as the federal government officially stepped into the fight.
The United States Patent and Trademark Office canceled the trademark registration of the Redskins, calling the nickname “disparaging to Native Americans.” Federal trademark law prohibits names or logos that “may disparage persons or bring them into contempt or disrepute.”
The case, which appeared before the Trademark Trial and Appeal Board, was filed on behalf of five Native Americans and marks the latest chapter in a decades-long attempt to persuade the NFL franchise to change its name. The 2-1 decision comes amid mounting political and financial pressure to make a change.
However, the ruling does not require the Redskins to change their name, only limits their legal options when other people or entities engage in unauthrorized use of the Redskins name or marks.
Even without federal registrations, the Redskins still have common-law trademark protection but are not afforded all the protections of federal law, which include the potential to recover actual damages, punitive damages, attorney’s fees and injunctions. The remedies are not as clear under common law.
Jesse Witten, lead attorney for the plaintiffs, applauded the decision but said it likely will take more to convince Redskins owner Daniel Snyder.
“We don’t think trademark litigation will be what persuades this team to change its name,” said Witten, of Drinker Biddle & Reath. “It will be the view of broader society that the name needs to change… But this is an important decision by the U.S. government that it should play no part in promoting this team’s ethnic slur.”
This is not the first time the Redskins have encountered this setback. Native Americans prevailed in a similar ruling in 1999, only to see that decision thrown out when the team and the NFL won an appeal in U.S. District Court in 2009. The court ruled the plaintiffs didn’t have standing to file the lawsuit because they waited too long to complain. A federal court of appeals upheld that decision.
“We’ve seen this story before,” Bob Raskopf, trademark attorney for the Redskins, said in a written statement Wednesday. “And just like the 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.”
The Redskins said they plan to appeal Wednesday’s ruling. The team’s trademark will remain intact while the case works its way through the legal system.
“The evidence in the current claim is virtually identical to the evidence a federal judge decided was insufficient more than 10 years ago,” Raskopf said. “We expect the same ultimate outcome here.”
It’s unclear how much Wednesday’s decision will erode the Redskins’ ability to protect their brand. The true impact might not be known until the franchise files suit against the next person or entity selling unauthorized merchandise.
“Their trademarks have lesser level of trademark protection than they did before,” Witten said. “The exact degree is left unresolved by this opinion. The team will argue it still has a common law trademark protection.
“The maximum this opinion could mean is anyone could go out and sell Redskins merchandise. I would not recommend that to anyone. The team would likely sue them.”
George Belch, founder of the sports marketing program at San Diego State, said he doesn’t anticipate Wednesday’s ruling leading to a Redskins name change anytime soon.
“All the other pressure to this point has not led to a change,” Belch said. “Snyder and [NFL Commissioner Roger] Goodell seem to have dug in their heels. One, they’ll appeal it, so that’s going to buy them time… And you have to take into consideration Snyder’s personality. He seems to be, `It’s my team, and I’m going to do what I want to do with it. And I’m not worried about public opinion.’”
Last month, 50 U.S. senators asked Goodell to support a name change for the Redskins, calling supporters of the nickname “on the wrong side of history.” Among those was Senate Majority Leader Harry Reid (D-Nev.), who in the wake of Wednesday’s ruling said: “The writing is on the wall. It is on the wall in giant, blinking, neon lights.”
The NFL has been consistent in its defense of the team’s name and league’s record.
“The NFL has long demonstrated a commitment to progressive leadership on issues of diversity and inclusion, both on and off the field,” a league spokesman said in response to last month’s letter. “The intent of the team’s name has always been to present a strong, positive and respectful image.”
Tribune Newspapers reporter Evan Halper contributed.
Copyright © 2014 Chicago Tribune Company, LLC