Will the Redskins have to change their name?
No. Nothing in the USPTO's ruling forces the Redskins to abandon their name. By revoking the registration, the government has effectively downgraded the strength of Dan Snyder's intellectual property protections. But as we'll get into shortly, the team still enjoys substantial protections in other forms.
What else is affected by this?
Very funny. So can I open up my own Redskins bar now?
Actually, you always could. It was just a matter of how hard the team would inevitably come down on you for doing so.
Sure. According to Jason Rosenberg, an intellectual property lawyer at Alston and Bird, the USPTO's order is a huge public-relations blow — but it doesn't really change the underlying dynamics between the Redskins and would-be trademark infringers.
"It does not prevent [the team] from using the mark, nor does it prevent other people from using the mark," he told me."It just won't be based on any federal rights they've acquired, but on common law rights … If you wanted to open a Redskins café tomorrow thinking their registration has been canceled — no."
Just because the Redskins have lost their main federal trademark protections doesn't mean they can't still sue over trademark confusion. Dan Snyder could say, for instance, that due to the Redskins' consistent, longstanding commercial use of the name in connection with pro football dating back decades, anyone else who uses the name is likely to make consumers think that there's an association with the Redskins football team.
"This is the same argument you make if you have a federal registration," said Rosenberg. "The only thing is now, you can't say you have a federal registration."
What happens next for the Redskins?
Chances are, they'll appeal, though of course the team always could choose not to. And this is where it gets really interesting. There are two ways an appeal could happen. One is for the Redskins to appeal to the U.S. District Court for the Eastern District of Virginia. The other option is to appeal to the U.S. Court of Appeals for the Federal Circuit. Each comes with risks and rewards.
If the Redskins file their appeal in Virginia, they'll likely have more opportunity for entering evidence and developing the facts in the case, according to intellectual property experts. If they lose, they'll also have an additional chance to appeal, this time to the Federal Circuit. That gives them an extra bite at the apple.
But there's a catch?
Right. The district court doesn't typically handle matters of trademark registration, so it may be inclined to give the USPTO the benefit of the doubt. That's bad for the Redskins.
So the Redskins may decide to appeal in the Federal Circuit. There won't be an opportunity to add evidence to the record, and if the Redskins lose, the next stop would have to be the Supreme Court. But where things stand now, there's not much point to adding evidence.
Because the Redskins' name has been a legal issue for years, with lots of evidence already in the record. The USPTO actually sided with Native American petitioners once before, in 1999. The Redskins appealed, and ten years later, the court ruled that the petitioners' right to complain had basically expired. The petitioners had lived with the offensive name "Redskins" for too long without speaking up.
Today's petitioners seem to have taken that lesson to heart. The current case involves younger, 18-year-old petitioners who, because of their age, hadn't previously been able to exercise their right to sue. Now they are.