Federal agency cancels Redskins trademark registration, says name is disparaging

The U.S. Patent and Trademark Office has canceled the Washington Redskins’ trademark. Federal trademark law does not permit registration of trademarks that "may disparage" individuals or groups. Here's a look at the Redskins' logo and team imagery throughout the years. (Tom LeGro and Natalie Jennings/The Washington Post)

The U.S. Patent and Trademark Office canceled the Washington Redskins’ trademark registration on Wednesday, a move that won’t force the NFL team to change its name but fuels the intense fight by opponents to eliminate what they view as a racial slur against Native Americans.

The 99-page decision by the Trademark Trial and Appeal Board said the team’s name and logo are disparaging. It dilutes the Redskins’ legal protection against infringement and hinders the team’s ability to block counterfeit merchandise from entering the country.

But its effect is largely symbolic. The ruling cannot stop the team from selling T-shirts, beer glasses and license-plate holders with the moniker or keep the team from trying to defend itself against others who try to profit from the logo. And the trademark registrations will remain effective during any appeal process.

The ruling’s main impact is as a cudgel by an increasingly vocal group of Native Americans, lawmakers, former players and others who are trying to persuade team officials to change the name. The backlash against the name has never been more intense.

And opponents immediately seized upon the decision to increase pressure on the team.

The California-based Yocha Dehe Wintun Nation aired this ad during the recent NBA Finals urging the Washington Redskins to change the team's name. (Video courtesy of the Yocha Dehe Wintun Nation)

Sen. Maria Cantwell (D-Wash.), who persuaded 49 other members of Congress to send a letter last month to the National Football League on the issue, interrupted a debate on the Senate floor to herald the decision.

“So many people have helped in this effort, and I want to applaud them,” Cantwell said. She later said she believes the decision will ultimately force the hands of team owner Daniel Snyder and NFL Commissioner Roger Goodell in ways other efforts have not. “You want to ignore millions of Native Americans?” she said. “Well, it’s pretty hard to say the federal government doesn’t know what they’re talking about when they say it’s disparaging.”

Snyder has steadfastly refused to consider a name change, saying the name and logo honor Native Americans.

Jesse Witten, an attorney for the Native Americans who filed the case, called the victory “a long time coming.” The board had previously ruled in favor of a different group of Native Americans, led by Suzan Harjo, that filed a similar case in 1992. But that case was later dismissed in the federal courts. The court did not rule on the merits of the case but ultimately said the plaintiffs did not have standing to file it.

Federal trademark law does not permit registration of trademarks that “may disparage” individuals or groups or “bring them into contempt or disrepute.” The ruling pertains to six trademarks associated with the team, each containing the word “Redskin.”

Robert Raskopf, a lawyer who has been representing the team since the 1992 case was filed, said he was “disheartened” and “surprised” by the ruling. He noted that Wednesday’s decision came from a divided panel of judges, with one of the three dissenting, and that the earlier case was won on appeal. “We’ve been down this road already,” he said. “We have the same evidence here that we had last time, the same arguments, the same exact case.”

He said that the team plans to appeal the decision. “We are certainly confident that moving forward we are going to prevail yet again,” he said.

The board’s decision makes clear that while there are similarities, this case is not the same as the first one. The decision also reflects that the board took into consideration the team’s often-touted contention that many Native Americans do not find the term offensive. “While this may reveal differing opinions within the community, it does not negate the opinions of those who find it disparaging,” the decision reads. “The ultimate decision is based on whether the evidence shows that a substantial composite of the Native American population found the term ‘Redskins’ to be disparaging when the respective registrations [were] issued.”

According to the decision, it was established that “at a minimum, approximately thirty percent of Native Americans found the term to be offensive” during the relevant time frame.

“Thirty percent is without doubt a substantial composite,” the decision reads. “To determine otherwise means it is acceptable to subject to disparagement 1 out of every 3 individuals.”

The judge who dissented wrote: “By this dissent, I am not suggesting that the term ‘redskins’ was not disparaging. . . . Rather, my conclusion is that the evidence petitioners put forth fails to show that it was.”

Through a spokesman, the NFL declined to comment. The NFL Players Association did not immediately respond to a request for comment.

Snyder also declined to comment as he left the practice field at Redskins Park, the team’s training facility in Ashburn, Va. Snyder did not verbally acknowledge a reporter’s question on the ruling, instead waving his hand and continuing to walk.

Asked whether the Redskins believe they can continue to use their name, the team’s president and general manager, Bruce Allen, said: “Did you read it? . . . We’re fine. We’re fine.”

Gabriel Feldman, the director of the sports law program at Tulane University, said the ruling could affect the view of league officials and owners of other NFL franchises. The sport’s revenue-sharing system gives them all a stake in Redskins merchandising.

“It’s a great question to raise,” Feldman said. “Maybe this is the tipping point for the rest of the league. This is a unique business.”

The nation’s most popular sports league, the NFL generates revenue estimated by Forbes at more than $9 billion annually. The Redskins’ annual revenue was estimated at $373 million, but it is unclear how much of that comes from merchandise.

A bill before the U.S. House would also cancel trademark registrations that use the term “redskin.” On Tuesday, Del. Eni F.H. Faleomavaega (D-American Samoa) sent a letter to the Judiciary Committee requesting a hearing on the bill, which he introduced in March 2013 with bipartisan support.

The U.S. Patent and Trademark Office has refused to register trademarks containing the word “Redskins” about a dozen times since 1992 on the grounds that the term may disparage Native Americans. Among the rejected: Redskins Fanatics, Redskin Pigskins and Washington Redskins Cheerleaders. The latest to be turned down was “Redskins Hog Rinds,” which was submitted on behalf of a Capitol Heights, Md., man. In a letter from the agency in December, an examining attorney wrote that it was denied because it contained “a derogatory slang term.”

Trademark lawyers say the decision largely is inconsequential to the team, even if it loses an appeal. The team would maintain “common law” rights to the name, allowing it to make a case against any individual or organization looking to profit from it. “I think it’s a stronger moral victory for the Native American community than a financial detriment to the Redskins,” said Joe Lewis, a District-based trademark lawyer.

The current lawsuit was brought eight years ago by Amanda Blackhorse, Phillip Glover, Marcus Briggs-Cloud, Jillian Pappan and Courtney Tsotigh. “It is a great victory for Native Americans and for all Americans,” Blackhorse said in a statement Wednesday. “I hope this ruling brings us a step closer to that inevitable day when the name of the Washington football team will be changed.”

The Redskins name-change controversy has been gathering steam over the past few years. Last week, the Central Atlantic Conference of the United Church of Christ passed a resolution that calls on its members to boycott the football team. That same week, a California tribe paid for an anti-Redskins ad to run in eight major cities during television broadcasts of the National Basketball Association’s championship series.

The National Congress of American Indians and the Oneida Indian Nation in New York commended the decision in a joint statement that thanked Harjo, who led the earlier lawsuit, and Blackhorse “for their tireless efforts that helped lead to today’s historic milestone.”

Olympic gold medalist Billy Mills, raised on the Pine Ridge Indian Reservation in South Dakota, also issued a statement, poking fun at Snyder’s much-repeated quote that he would “NEVER — you can use caps” — change the name of the team.

“The U.S. Patent Office should never be used to defend a slur. NEVER — you can use caps,” Mills said. “The Washington Football team claims to listen to public opinions, but many of us question if we’ve been heard. Today’s decision will be heard.”

Mark Maske, Cindy Boren and Ed O’Keefe contributed to this report.

Theresa Vargas is a reporter for the Post’s local enterprise team.
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