Sunday, June 22, 2014

Skinning the Redskins


The recent decision of the U.S. Patent and Trademark Office to de-register the name of the Washington Redskins is a serious matter, fraught with dangers not only to trademarks and trademark owners, but to patents and patent holders, in addition to copyrights and copyright owners, as well.

Commercially, what the ruling means is that while the team's owners won't be forced to change the team's name to something more saccharine (or politically correct, e.g., "The Big Hulking Guys Who Chase Obloids"), it has lost the right to control the usage of the team's name in its logos and merchandising endeavors. That is, the name is up for grabs to whoever wants to sell T-shirts, mugs, glasses and apparel under that name.

 The potential or real loss of revenue resulting from the decision is irrelevant. The Patent and Trademark Office's decision, based on a suit filed by five individuals, constituted the theft of property, on the most specious of reasons, that the "name" (and associated symbols) was "disparaging." The Office as much as said: "Your name and symbols are offensive to a certain protected class of citizens, and hurts its feelings, so this agency is delegitimizing said name and symbols as protectable and licensable property. The exclusivity of said name and symbols is hereafter null and void."

Boren's article goes on to report:

As a league official said, "The decision does not mean that the team loses its trademark protection. It loses the benefits of federal registration, but the team will continue to protect its trademarks against third parties using it.  The team has what is called ‘common law rights,' which do not require a trademark registration."

Gabriel Feldman, the director of the sports law program at Tulane University, agreed with that interpretation. "This ruling doesn't eliminate the ability of the Washington Redskins to use their trademark or prevent others from using it," Feldman told the Post's Mark Maske. "But it does limit their ability to enforce their rights."


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