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9 Questions and Answers About What Happened to the Redskins Trademark

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    So what happened Wednesday?

    A board of the U.S. Patent Office canceled six Redskins trademarks, ruling 2-1 that the marks were disparaging to Native Americans. They were ruling in a case brought by five Native Americans in 2006. The Redskins have said they will appeal.

    So does this mean the Redskins can no longer use that team name?

    No. First of all, this ruling addresses only one question: Whether the Redskins can use federal trademark protection to go after people who are counterfeiting its name or trademarks. They can continue to use the name -- but, if this case stands, other people may feel empowered to do so, too, though other protections remain. (Anyone feel like renaming their book club after Washington's football team?)

    Anyway, the Redskins will appeal -- and any change to the Redskins trademarks will be put on hold during the appeals process.

    Why were the trademarks canceled?

    U.S. patent law specifically says that trademarks may not disparage a group of people -- they can't expose that group to ridicule or contempt. The patent office said that it did not consider whether all Native Americans were disparaged, or even most, but whether a "substantial composite" of Native Americans would be.

    Is a claim of disparagement common?

    Challenges to trademarks and patents are common, but usually the objection comes from other trademark holders who say a trademark application is too close to their own and could be confusing to customers.

    Challenging a trademark on the grounds that it is disparaging is unusual, say patent experts -- but it does happen.

    "These marks have to be adopted very carefully," said Q. Todd Dickinson, exeutive director of the American Intellectual Property Law Association and a former director of the U.S. Patent and Trademark Office. "Over time, the use may change and the sensitivities may change." 

    In fact, the Redskins faced an identical challenge back in 1992, when another group of Native Americans claimed the name was disparaging. That case took years to resolve, but eventually was dismissed because the plaintiffs waited too long to file a claim.

    Wait, why was that ruling in the case filed in 1992 overturned?

    It was overturned initially because a federal court ruled there was not enough evidence that the plaintiffs were disparaged, and also because the court said the plaintiffs waited too long to file their case.

    There's a concept in trademark law that if someone is being hurt by a mean trademark, they have to argue that point soon after they experience the injury -- which, for lawsuit purposes, is usually when someone turns 18 and is able to sue.

    In the 1992 case, the plaintiffs were much older, and that became a major issue in the appeal. (Interestingly, after saying that there was not enough evidence of disparagement, the appeals courts did not address that issue again.)

    In the new case, the plaintiffs are much younger.

    How will this ruling affect the Redskins' day-to-day business?

    It won't affect it much, for now. Again, the team will appeal and the trademarks will remain while the appeal continues.

    If this ruling stands, it would mean that the team will not be able to protect its trademark using federal trademark law. That means people could counterfeit Redskins goods, though there are still some protections under common law for trademarks. Licensed merchandise is a big source of revenue for any NFL team.

    Could this ruling affect other NFL teams?

    Well, yes -- if the ruling stands. If so, and if the Redskins lose merchandising revenue, all but one of the other NFL teams could be affected, because they share merchandise licensing revenue. The lone exception is the Dallas Cowboys.

    So what does this mean for the Atlanta Braves? The Kansas City Chiefs?

    Nothing. This case was specifically about the Redskins. Someone could bring a case against those other teams, but they'd have to prove to the board that ruled today that the names were disparaging.

    What's the Redskins' next step?

    They will certainly appeal, though they face a choice about where they will do that. They can appeal either to the the federal circuit court in D.C. or to the federal court in the eastern district of Virginia. That second option wasn't available to the 'Skins in the previous case, and gives the Redskins some additional legal options, including an extra possible level of appeal and even the chance for a jury trial.

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