Washington Redskins Trademark Dispute


Greetings. I’m trademark attorney Josh Gerben and I’d like to talk about something that’s been in the news a lot lately, about an attempt by a group of Native Americans to cancel the Federal Trademark Registration of the Washington Redskins.

This is an administrative proceeding before the United States Patent & Trademark Office, which allows for trademark registrations to be canceled on various grounds. In this case the group that has filed the petition to cancel is claiming the trademark of the Washington Redskins is disparaging. If this action is successful all of the trademarks of the Washington Redskins would be canceled.

Now, with that background in place, it is important to understand what would happen from a practical perspective if in fact the trademarks were canceled. I believe the media is over-hyping the legal significance of a trademark cancellation, especially on the grounds of disparagement.

The first point to be aware of is you do not need to have a federal trademark registration to use a name. The Washington Redskins could still play football and sell merchandise using the trademark even if it is canceled. The second point to be aware of is that it would not be open season for anybody wanting to sell Washington Redskins merchandise.

If the trademark is canceled, the legal significance of losing the federal registration is that the Washington Redskins would lose the presumption of validity of their trademark. That being said, there are federal and state laws that would still allow the Washington Redskins to police their trademark and to sue others for trademark infringement.

That all being said, I think that the true significance of the case pending before the United States Patent & Trademark Office is that of public relations. The press coverage of such a cancellation is bound to make an already tough subject come to the front of most newspaper pages. This will be perhaps enough pressure on the Washington Redskins, from a public relations standpoint, to have to make a change.

Finally, I’d like to leave everyone with a point that is commonly missed in this debate. Under the First Amendment, free speech is supposed to be protected in this country. In this case the U.S. Government itself is deciding whether or not a name is appropriate for a football team.

Regardless about how you feel on this name, is it right that the U.S. Government, ultimately should be able to determine whether a federal trademark protection should be issued on a name, based on whether or not it is disparaging? Is that something the government should really be deciding?

I think it’s a really interesting First Amendment question and maybe one that will come up if this case proceeds further. Thank you very much for watching this video, and if you have any further questions on trademarks, please feel free to get in touch.