Wow, there is a lot of information out there about the “Redskins” case. A lot of misinformation, that is. From the first crawl I saw last night on Wednesday Night Baseball — ESPN’s Bottom Line, to Google alerts, wire services, leading newspapers and websites — most of the stories got one thing right: the Trademark Office ordered cancellation of six trademark registrations. But what does that mean, and where do things go from here? That still seems to be confused. We’re starting to come full circle. After the breathing and thinking have set in, we’re starting to see some more real-world headlines like, “Don’t Open Your Own ‘Redskins’ Team Store Just Yet.”
This decision does not make the trademark “Redskins” free for anyone to now use (for football, jerseys, or anything else related to the Washington NFL franchise). If upheld on appeal, however, it could allow others to register “Redskins” for these things. What would happen? The Washington Redskins would oppose such application(s) in the Trademark Trial and Appeal Board on the grounds that it used the mark first. Or, the Washington Redskins/NFL would file a civil lawsuit against any new user.
This decision will not have any real impact on most, if not all, “Indian” sports team names. The whole basis of the decision was — whether you agree or disagree with how the evidence was interpreted — that “Redskins,” in effect, is a racial slur. It is extremely unlikely that “Indians,” “Seminoles,” “Chiefs,” or any other Native American-themed team names would be classified in this way. The Board most clearly did not say that an Indian-themed name was disparaging.
Jerry Jones of the Cowboys has said today he is not in favor of marks which can’t be protected. Absence of a federal registration clearly strips away an important layer of protection. But the Trademark Office has very limited powers. It has no right to prevent use of the “Redskins” trademark, and its decision does not interfere with the Redskins’ rights to sue for infringement in state or federal courts. As a practical matter, anyone they sue will — so long as the Trademark Office decision stands — cry foul. But it is up to a judge to decide how to handle this. The Trademark Office decision not only is not binding on a court, other than to the degree it would say that the trademark may exist but does not have the extra benefits that come from registration.
As I reported yesterday, what the Trademark Office decision does not do is:
- Prevent the Washington Redskins from using the word Redskins. All the Trademark Office has said is that it is going to cancel those registrations. That certainly will be appealed.
- Stop use of the term.
- Make any ruling about the Redskins logo. That issue was not part of this case.
- Decide that the term “Redskins” is not capable of uniquely identifying the Washington football team.
- Decide that the word “Redskins” is understood by the American population to be a racial slur. The Board did find that the evidence presented by the parties showed that a “substantial composite of Native Americans” found the term to be disparaging between 1967 and 1990.
Regardless of the true legal meaning of this decision, the dominos are already falling. Can the NFL recover from the real meaning of the Trademarks Office decision, and the whirlwind of information surrounding it?
This post originally appeared on Forbes