Inviting Knockoffs To The Tailgate Party

It took 81 years to build the Washington Redskins brand into what is believed to be the third most valuable franchise in the National Football League. It took wannabe censors at the U.S. Patent and Trademark Office all of five minutes to destroy that brand equity - or at least give it their best shot.

The controversy over the Redskins' name is either an example of the progress of 21st century cultural tolerance or of political correctness run wild, depending on your perspective. It might even be both. But regardless, as the public name of a private enterprise, the banner under which Washington's football franchise performs is a matter for the team's ownership, the NFL, the players and arguably for anyone who follows football. If the Redskins name becomes unpopular enough that it damages the institution as a commercial enterprise, the team's ownership will have every reason to change it.

That is how the process should have played out. Instead, the appeals board at the Patent and Trademark Office, acting on complaints from people with no formal connection to the sport but who have appointed themselves the guardians of all Native Americans' collective cultural sensibilities, stripped the Redskins of their trademark protection in a 2-1 ruling. The primary effect of this decision is to make the world in general, and the streets near the team's stadium in particular, safe for a variety of knockoff merchandise. The action smacks of both censorship and theft.

The team has said it will appeal the ruling. Such an appeal can be made to a federal District Court or the U.S. Court of Appeals for the Federal Circuit. Bob Raskopf, a trademark lawyer employed by the team, said in a statement, "We are confident we will prevail once again, and that the Trademark Trial and Appeal Board's divided ruling will be overturned on appeal." (1)

The team will continue to use its name during the appeal process, and as long as a stay of the ruling is granted, it will be more or less business as usual until a final ruling is handed down. Also, as Fox Sports noted, the team's logo remains protected by copyright, not trademark, which may rein in some attempts to profit from the trademark office's decision. (2)

This is not the first time critics of the team name have attacked its intellectual property protection. In 2003, a federal judge in Washington overturned the Patent and Trademark Office's decision to cancel six of the Redskins' trademark registrations. In that case, the courts did not reach the merits of the argument that the word "redskin" is intrinsically disparaging; instead, the court deemed that the plaintiffs had waited too long to bring their suit. The latest round of young Native American activist plaintiffs argue that they sued promptly upon reaching adulthood and thus have standing to challenge a trademark that was first issued decades before they were born. Whether they do, in fact, have standing is likely to be one of the issues raised on appeal.

Another issue, naturally, will be whether a name that has been in use for more than 80 years, and is in fact used by a team to promote a positive image of itself as fierce and courageous, can be viewed as so inherently and undeniably derogatory that the government can simply strip it of legal protection. I don't believe the challenge to the Redskins' name will pass that test. Denying registration to a brand-new applicant is one thing; stripping a trademark after 80 years of use and untold investment, and thus imposing a huge financial penalty on its owners, is quite another.

Anyone is now free to start their own venture and call it "the Redskins," trading upon equity other people created over the course of decades. If the trademark office can strip Washington's football franchise of its trademark, what stops it from doing the same to the Atlanta Braves? Or to the Yankees, on the grounds that their name offends some Northerners when leveled at them by those from the South? Or to the baseball franchise that performs in Anaheim, California, yet calls itself the Los Angeles Angels (appending "of Anaheim" out of apparent embarrassment)? That name seems doubly deceptive, since the team does not play in L.A. and is composed exclusively of mortals.

I agree with the Redskins' lawyers that the courts are likely to overturn the trademark office's sensitivity police. In fact, I suspect that the panel made its ruling more as a political statement than because it believed it had the power to do what it wanted. This incident is an invitation to Congress to narrow the grounds under which intellectual property can be denied protection.

By Larry M. Elkin  |