Losing off the field: Judge cancels Washington Redskins’ trademarks

The Washington Redskins are once again losing the battle over their nickname, and not just in the court of public opinion. A federal judge ordered the cancellation of the football team’s federal trademark registrations, though it can continue using them.

On Wednesday, US District Judge Gerald Bruce Lee affirmed an earlier ruling by the US Patent and Trademark Office (PTO) Trademark Trial and Appeal Board, which cancelled the franchise’s six trademark registrations last June. The decision was based on Section 2(a) of the Lanham Act, which bars protection for names that “may disparage” or bring people into contempt or disrepute. Native Americans have long contended that the nickname “Redskins” is inherently racist.

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“The evidence before the Court supports the legal conclusion that between 1967 and 1993, the Redskins Marks consisted of matter that ‘may disparage’ a substantial composite of Native Americans,” Lee wrote in his ruling. “Section 2(a) of the Lanham Act requires cancellation of the registrations of [Pro-Football, Inc.’s] Redskins Marks, resulting in their removal from the PTO’s Principal Register.”

The cancellation won’t go into effect until the team has exhausted the appeals process, which could go all the way to the Supreme Court. Even without the trademarks, however, the team could still continue using the name Redskins. They may be able to seek trademark protections under state laws as well.

The National Football League (NFL) team condemned Lee’s decision. It believes that losing its trademarks would taint its brand ‒ valued at $2.4 billion in August 2014 ‒ and remove legal benefits that would protect the team against copycat merchandise, according to the Washington Post.

“I am surprised by the judge's decision to prevent us from presenting our evidence in an open trial. We look forward to winning on appeal after a fair and impartial review of the case,” Bruce Allen, the team president, said in a statement. “We are convinced that we will win because the facts and the law are on the side of our franchise that has proudly used the name Redskins for more than 80 years.”

Current owner Dan Snyder has repeatedly said that he would “never” change the team’s name. Over the past few years, the controversy has intensified, with several media outlets (including the Washington Post’s editorial board), local columnists, and national broadcasting analysts (such as CBS’ Phil Simms and NBC’s Tony Dungy) refusing to use the moniker. Half of the US Senate ‒ all Democrats ‒ sent NFL Commissioner Roger Goodell a letter in May 2014 urging the league to pressure Snyder into changing the team’s name.

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While Native American activists celebrated the ruling, they admitted that they don’t expect the war to be over anytime soon.

“This is a huge victory. Getting this ruling from a US District judge is a watershed event,” Jesse Witten, one of the attorneys for the Native Americans, told the Washington Post. “The team has been fighting this case so hard and leaving no stone unturned and scorching every square inch of earth that it’s hard to imagine they will not appeal.”

This is not the first time that the NFL team’s trademarks have been cancelled, however. In 1992, a group of Native Americans, led by Suzan Shown Harjo, filed a petition with the US Patent and Trademark Office, asking the PTO to cancel the team’s “Redskins’” trademark protection, calling the name derogatory. While the federal agency initially sided with the petitioners, a court overturned the decision on a technicality.

In 2006, a second group petitioned the PTO to cancel the trademark, arguing that federal trademark law bars the office from registering trademarks that “may disparage” groups or individuals. It was with this group that the Trademark Trial and Appeal Board sided last June. In response, the team sued the group, asking for a chance to defend their name in court.

The team believes that the cancellation of its trademarks infringes on its First Amendment rights by requiring the government to decide whether the name Redskins is offensive. In his 70-page ruling, Lee cited last month’s Supreme Court decision that allowed Texas to refuse to issue license plates with the Confederate battle flag. The judge wrote that the government is allowed to exercise editorial control over the content of the trademark registration program, which he equated to government, rather than private, speech.

Trademark's open, what products should we sell under the name Redskins? Redskins white hoods?

— Redskins Trademark (@redskinstm) June 18, 2014