347-787-6824Redskins Trademark Fumble
The LAW FIRM OF DAYREL SEWELL, PLLC is pleased to announce that Messrs. Sewell’s and Fine’s recent, featured publication, “The “Redskins” Trademark: Turn-over on Downs”, appears in this month’s IPFrontline newsletter (Trademark Turn-over on Downs).
For decades, the National Football League’s “REDSKINS” trademarks have been under siege. Activists, concerned citizens, Native American groups, lawyers, and politicians have boisterously levied meritorious arguments against a trademark that has defined an American professional football team for almost a century. While this coalition has attracted a great deal of societal attention, it has only recently secured judicial support.
For decades, the NFL has stood firmly behind its “Redskin” trademark, as has the majority of Redskins fans. The term “redskin” subsequently no longer enjoys widespread use in America as a word describing the Native American people. The case, Pro-Football Inc. v. Blackhorse, offers an extensive analysis of the term and its implications. After carefully weighing the evidence, the Eastern District of Virginia ultimately determined that the term “redskin” is disparaging to the Native American population, and is subsequently undeserving of continued federal registration.
In sum, the Eastern District of Virginia affirmed the TTAB determination that the term “redskins” would not enjoy continued registration as a trademark on the basis that the term is, and was always, likely to disparage a “substantial composite” of the Native American population.
Today, it is largely undisputed that the term “redskin” is, by definition, offensive as a descriptor for Native Americans. Fast-forwarding, several years later, the NFL’s Washington Redskins team is now known as the Washington Commanders; it was only a matter of time before the team’s ownership wilted under the mounting legal, economic, and public policy pressures.
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In regard to the conclusions reached by the Eastern District of Virginia in Blackhorse, some significant issues arise. In regard to the “may disparage” language under 2(a) of the Lanham Act, it appears that there may be some merit to Pro-Football, Inc.’s argument that the language is vague. In their brief filed October 30, 2015, Pro-Football, Inc. argues that the language in 2(a) is vague, and fails regardless of the level of scrutiny applied. This argument focuses, not on the REDSKINS trademark itself, but on the constitutionality of the provision that would allow for the TTAB to refuse to register… Read more »
The Washington Redskins team has been embattled over controversy surrounding their name for decades. The controversy arises because the term “redskin” is in fact a racial slur discriminating Native-Americans. In 2015, the Eastern District Court of Virginia canceled the team trademark pursuant to Section 14 of the Trademark Act of 1946 (US), 15 U.S.C. 1064 (c) on the grounds that the marks disparaged persons and brought them into contempt and disrepute. This case raises three important questions that will be addressed in turn here: 1) whether it is necessary for the government to ban offensive trademarks; 2) when is a… Read more »
It’s interesting to look at this case two years later and see how while this may have been a moral victory for the native American community, it has done very little to affect the still large Redskins football community. Further, new common law precedent made at the federal level has worked to discredit the arguments made by the Eastern District of Virginia and make it likely that if the Redskins continue litigation, will likely succeed in reversing the decision of the Eastern District Court and allow the Redskins to regain their trademark. In endorsing the decision of the Trademark Trial… Read more »
Despite owner Daniel Snyder’s past comments about “never” changing his team’s name, the Washington football team officially retired the “Redskins” name on July 13, 2020. Rosa Sanchez, NFL’s Washington Redskins to change name following years of backlash, ABC NEWS (July 13, 2020), https://abcnews.go.com/US/washington-redskins-change-years-backlash/story?id=71744369. “American society is undergoing a wide uprising over police brutality and systemic racism that flared after the killing of George Floyd in police custody, a widespread movement that has led to a reconsideration of statues, flags, symbols and mascots considered to be racist or celebrating racist history.” Kevin Draper, Washington and the N.F.L. Might Change the Redskins… Read more »