Trademarks

Redskin’s Trademark Loss May Not Have Much Effect

Redskins Trademark

The Washington Redskin’s have been under pressure to change the team’s name due to its disparaging connotation to Native Americans but the owner’s have refused to budge on any changes. To add to the controversy, today, the Trademark Trial an Appeals Board revoked the six of the Redskins trademarks ruling that the term “Redskins” was disparaging to “a substantial composite” of American Indians. If the team were to apply for federal trademark protection for “Redskins” today, it would most likely be denied. In fact, the team applied for other related trademarks over the last decade, including “Redskins Fanatics” and “Redskins Rooters” which were denied. However, as damaging as some might believe this ruling to be, it does not mean the Redskins must stop using the name. Unfortunately, losing the trademark may have little practical effect other than as a political message to the team that the term is a despicable racial slur.

To understand what effect this might have for the team owners, let’s consider the benefits received from having a federally registered trademark. First, federal trademarks have a legal presumption of ownership. If the Redskins find an infringement and sue, the owner is not required to prove by a preponderance of the evidence that the trademark is valid and protectable. However, proving validity for a national football team that has used the name since the 1940s would not be difficult. Other benefits, such as being able to use the U.S. registration as a basis for obtaining registration in foreign countries; the ability to record the U.S. registration with the U.S. Customs and Border Protection (CBP) Service to prevent importation of infringing foreign goods; and the right to use the federal registration symbol ® may also have limited value. Foreign trademarks are already in place and not affected by this ruling. And, losing the ability to register with the CBP does not mean that Customs will allow counterfeit goods into the country.

“. . . if people wouldn’t dare call a Native American a ‘redskin’ because they know it is offensive, how can an NFL football team have this name?” – Amanda Blackhorse

The most prominent benefit, and the reason most organizations apply for federal registration, is receiving the exclusive right to use the trademark nationwide in connection with the goods/services listed in the registration. In other words, if the trademark owner finds an infringement, he or she can stop the infringer and receive compensation for the use. For the Redskins, even without a federal trademark, the team can still initiate an infringement lawsuit under common law, a term that refers to rights judicially created through state law cases. Common law trademark rights are limited to the geographic area in which the trademark is used so, for example, a company selling goods only in California cannot stop another from using their trademark in New York.

However, the Redskins are not selling goods locally or regionally, but nationally; their fans are everywhere so merchandise such as t-shirts and hats, are sold in every state as well as online.  If a company in Florida sells Redskins’ merchandise without the team’s consent, they can be sued even though the team is based in Washington. While a federal registration may make the legal process easier, generating revenue from another’s intellectual property is still illegal.

As a practical matter, given the controversy surrounding the word, “Redskins”, it is highly unlikely that anyone at this point is going to use “Redskins” for their company name or product line. So any infringements are likely to be focused on counterfeit or unlicensed good, all of which can be handled through the common law system. As petitioner Amanda Blackhorse has stated; “The team’s name is racist and derogatory . . . I’ve said it before and I will say it again — if people wouldn’t dare call a Native American a ‘redskin’ because they know it is offensive, how can an NFL football team have this name?” The same is true for any company.

The team has vowed to appeal the decision and pending appeal, their Federal trademark is still in force. So while this decision does send a political message to the Redskins, the effect it has on the name as an Intellectual Property asset, is probably minimal. Will it cause the team owner to rethink his decision about changing the name? That certainly won’t happen until the appeal.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

Add Comment

Click here to post a comment

Your email address will not be published. Required fields are marked *

Orangenius

We built Orangenius to help creators succeed. Our comprehensive platform takes the guesswork out of the business of art, so you can focus on creating. Click to see how Orangenius is revolutionizing the creative economy.

JOIN FOR FREE

The Latest From Artrepreneur

  • How to Earn Your Living as a Travel Photographer

    The prospect of traveling the world while getting paid to work may seem farfetched, but these two photographers have the ticket to landing freelance creative work across the globe. Here, Andy Donohoe and Michaela Trimble share their advice for […]

  • A Recruiter’s Advice for your Video or Motion Design Reel

    Creative Circle recruiter Brooks Rowlett sifts through hundreds of motion design reels and video editor portfolios each week. Here, he shares his best advice for motion designers and video editors looking to land their next big gig. The post A […]

  • From Tattoo Artist to Brand Empire: The Rise of the Ink Mogul

    The savvy tattoo artist uses brand recognition to launch a multimedia business. These four artists have leveraged their underground celebrity status to build a brand empire, complete with product lines, book deals, and TV contracts. The post From […]

  • Exploring the Intersection of Art and Technology

    The advent of technology is re-shaping the practice of art. These educational institutions, artists, and startups are exploring art and technology's convergence in today's increasingly digital world. The post Exploring the Intersection of Art and […]

  • Work with an Artist Mentor to Get Your Career on Track

    Many of the world's most recognized artists sought inspiration and guidance from their peers. Gain insight into your practice and learn about the business of art by finding an artist mentor whose career aligns with your own vision for success. The […]

  • Why Artists Need to Make Copyright Registration a Priority

    Sharing, posting, and distributing your work online is easier than ever - but often times, visual artists find themselves dealing with online piracy issues as a result of that practice. Initiating a copyright registration routine can curb the […]

  • How Artists on Social Media Can Grow Their Following

    By sticking to the tenets of the social media pyramid, artists on social media can develop an engaged audience. The post How Artists on Social Media Can Grow Their Following appeared first on Artrepreneur. […]

  • How [and Where] to Submit an Art Fair Application

    Submitting an art fair application doesn't have to be an arduous process. We break down which fairs are currently accepting submissions, and how you should apply. The post How [and Where] to Submit an Art Fair Application appeared first on […]

  • The Paperwork Behind Your Art Business [Part I]

    In this ongoing series, we'll review the various documents needed to get your art business up and running. First up: Crafting your artist proposal. The post The Paperwork Behind Your Art Business [Part I] appeared first on Artrepreneur. […]

  • A Creative Career Coach Outlines a Strategy for the Working Artist

    Marc Zegans coaches artists planning the next move in their art careers. Here, he shares his proven approach for developing your practice as a working artist. The post A Creative Career Coach Outlines a Strategy for the Working Artist appeared first […]

  • How One Artist Uses Instagram to Land Consistent Illustration Gigs

    Illustrator Maria Luque's secret to landing a steady stream of illustration gigs? Just be consistent and post regularly on Instagram. The post How One Artist Uses Instagram to Land Consistent Illustration Gigs appeared first on Artrepreneur. […]

  • Artists Who Failed – And Found Success Anyway

    Some of the world's most successful artists weren't always so revered. Meet five artists who failed to develop their art careers during their lifetime. The post Artists Who Failed – And Found Success Anyway appeared first on Artrepreneur. […]

  • How Do Online Content Moderation Policies Treat Nudity in Art?

    As Facebook's online content moderation policies come under fire, we review creative platform Orangenius' policy on nudity in art. The post How Do Online Content Moderation Policies Treat Nudity in Art? appeared first on Artrepreneur. […]

  • Self Employed? Five Ways To Get Into the Creative Habit

    Self-employed artists don't always leave room for inspiration. Boost productivity and get into the creative habit with these proven strategies. The post Self Employed? Five Ways To Get Into the Creative Habit appeared first on Artrepreneur. […]

  • A Creative in a Corporate Organization: Related Group’s Art Department

    In this ongoing series, we explore the creative roles available in the most unlikely of corporations. Our first installment talks to Patricia Hanna, the Art Director of Related Group. The post A Creative in a Corporate Organization: Related […]