Lawyers clash over impact of Redskins ruling


Attorneys have offered differing views on what the cancellation of six trademarks owned by the Washington Redskins means for the NFL team.

Yesterday, June 18, the Trademark Trial and Appeal Board (TTAB) revoked the controversial trademarks after finding them disparaging and offensive.

The lawsuit was brought by a group of Native Americans who claimed that ‘redskin’ is an offensive and slang term.

All six trademarks are variations of that word, including ‘The Redskins’ and ‘Washington Redskins’.

The club has confirmed it will appeal against the ruling.

If upheld on appeal, said Brad Newberg, partner at ReedSmith LLP, the ruling would still allow the team to continue using the ‘Redskins’ mark without much disruption, but its ability to stop others from using the name or to force them to license it would be “severely curtailed”.

“This could cut into both the team’s profit margin and its ability to choose the products and services with which the team and its name are associated,” he said.

But Marsha Gentner, senior counsel at Dykema Gossett PLLC, offered a contrasting view, saying the decision’s impact is “somewhat narrow” from a legal perspective.

“The TTAB only decides issues regarding federal registrations. Thus, while the TTAB ordered that all of the ‘Redskins’ registrations be cancelled, it did not ‘cancel’ the Washington team’s rights in ‘Redskins’ as a trademark, or, by and large, the team’s ability to enforce those rights,” she said.

“But I can’t imagine that a decision by a federal judicial panel that ‘redskins’ is, and for almost half a century has been considered to be, a disparaging racial slur to Native Americans … will not have a significant impact in the court of public opinion,” she added.

Despite the ruling, Bob Raskopf, trademark attorney for the Washington Redskins, said the case is “no different” to an earlier dispute, in 1999, where the TTAB cancelled several ‘Redskins’ trademarks before a district court reversed the decision.

As the dissenting opinion in the latest TTAB decision suggests, Raskopf said, “the same evidence previously found insufficient to support cancellation here ‘remains insufficient’ and does not support cancellation”.

The ruling simply addresses the team’s federal trademark registrations, he said, and the team will continue to own and be able to protect its marks without those registrations.

“The registrations will remain effective while the case is on appeal,” he added, “We are confident we will prevail once again.”

Native American groups remain defiant, however. A joint statement from Ray Halbritter, Oneida Indian Nation representative, and Jackie Pata, executive director of the National Congress of American Indians, welcomed the ruling.

“The US Patent and Trademark Office has now restated the obvious truth that Native Americans, civil rights leaders, athletes, religious groups, state legislative bodies, members of Congress and the President have all echoed: taxpayer resources cannot be used to help private companies profit off the promotion of dictionary-defined racial slurs.

“If the most basic sense of morality, decency and civility has not yet convinced the Washington team and the NFL to stop using this hateful slur, then hopefully this ruling will, if only because it imperils the ability of the team’s billionaire owner to keep profiting off the denigration and dehumanisation of Native Americans,” they said.


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