But the person making that application also owns “Washington Red Tails” and dozens of others, though it’s not clear any of his claims would hold up legally.
With its controversial team name now relegated to history books and retail clearance tables, Washington’s NFL franchise is working through an obstacle course of trademark issues, according to two people familiar with the situation, before unveiling a new name and logo. Those people said the organization’s new name has been held up, but the issues could encompass both an existing trademark application or a new one the team intends to file.
If the team is pursuing any of the names that have been the subject of fan and media speculation, legal hurdles must be cleared. Speculators have tried to trademark dozens of potential team names, hoping team owner Daniel Snyder someday might write them a check to relinquish those rights.
For as long as the Redskins’ name has stoked controversy, speculators have been paying a $275 filing fee with the U.S. Patent and Trademark Office, trying to secure rights to names they could sell to Snyder in the event of a name change. Dozens of names have been scooped up, but that might ultimately be just a small hurdle if the organization chose to pursue one of those with pending trademark applications.
“The thing about these filings? They’re just filings; they’re not registrations,” said Josh Gerben, a Washington attorney who specializes in intellectual property. “You can’t get a trademark to register until you actually have ‘use in commerce’ of the name for goods and services. So if you look at the majority of these filings, they’re all made for clothing lines because that’s arguably the easiest thing to do: slap something on the back of a shirt. You have to a have a legitimate business in order to maintain that registration. So these filings are speculative at best. The folks who are making them really don’t have legitimate business operations behind them, and if they were ever challenged they might not hold any legal weight."
Though it has had the same name since 1933, the organization has plenty of familiarity with the trademark process.
The team filed for the trademark “Washington Warriors” in March 2000 when Snyder was interested in bringing an Arena Football League team to town. It abandoned the trademark in 2004 and a similar one in 2007. The Redskins refiled for “Warriors” in 2007 before Martin McCaulay, who owns dozens of local football-related trademarks, filed for opposition in December 2019, arguing that the team had no use for it given that Snyder vowed to “never” change the team name and therefore had no use for Warriors. The Redskins did not respond to that filing, and the mark was abandoned this March.
“Washington Warriors” is owned by Don Terry and Carol Glass, who filed for the mark in November 2013. The mark is for “entertainment in the nature of football games” and football related merchandise, but the name is currently suspended. When reached by The Washington Post on Monday morning, Terry declined to comment on his trademark.
Trademarks experts say a person can’t simply file for a trademark and sit on it indefinitely. At some point he or she would have to show a legitimate enterprise associated with that trademark.
“I doubt the true intent is to create a business surrounding these marks,” said Darren Heitner, a Florida attorney who has filed for hundreds of trademarks on behalf of clients, including many professional athletes. “They just want to hit the jackpot and guess the name that Daniel Snyder and Co. will fall in love with. I’d actually be surprised if any of them end up earning any sum of money from the football team.”
McCaulay has spent thousands of dollars cobbling together potential names and owns numerous trademarks, including Washington Americans, Washington Monuments and Washington Veterans, hoping for a payday. But he now says he’d be willing to give the NFL and the Redskins any of his trademarks free because he wants the team name to change. He said he has reached out to the league and the team but has not heard back from either entity.
On July 5, he applied for “Washington Red Tails” for “entertainment in the nature of football games” and for “cups and mugs; wine glasses.” Red Tails is another name that has been bandied about by fans as a potential replacement name in recent years. Deron Hogans and Thaniel Van Amerongen applied for the mark in February for “licensing of intellectual property rights.” McCaulay filed for opposition of Hogans and Van Amerongen’s trademark last week, arguing that Red Tails refers to Red-tailed Hawks, a trademark he already owns. McCaulay’s filing extended the time to oppose Hogans and Van Amerongen’s trademark to October.
“In the trademark world, you can’t squat on a trademark,” Gerben said. “In other words, you can file a trademark application but that application cannot become a registration unless you have a legitimate business going on. I can’t file for Washington Red Tails and actually register the mark unless I’m selling the products that I’m listing in the application.”
To help legitimize his trademark claims, McCaulay operates a website, WashingtonAmericansFootball.com, that sells merchandise for several of his nonexistent football teams, including the Washington Founders, Pandas and Red-Tailed Hawks.
Even that would amount to a legally specious claim on the trademark, Gerben said.
“If I did discovery and asked what sales he had, and all he could show me was three sales a year to the same three people — buddies and his mom buying stuff — that’s not going to actually make that trademark valid or enforceable in any way,” he said.
While that could give Snyder ground to challenge an existing trademark or one that’s pending, Gerben said the team could opt to simply pay the speculator to avoid a public spat and clear the path for a quick transition of the trademark and introduction of a new name.
On social media, Red Wolves has gained steam and taken on a life of its own among a certain portion of the Redskins’ fan base in recent days. McCaulay filed a trademark application for “Washington Red Wolves” within the past week. He tweeted that he believes that is the likely replacement name, but he pointed out that Arkansas State University, whose athletic teams go by “Red Wolves,” is battling the Chattanooga Red Wolves pro soccer team in court over the use of the name’s trademark. An attorney for Arkansas State said Monday that the school system has not been contacted by anyone from the Redskins’ organization or the NFL.
Former Redskins cornerback Fred Smoot has been a vocal proponent of Red Wolves, and former linebacker Will Compton tweeted, “I’d want to come back to Washington for one day and retire a Red Wolf. GOD what a name! [Shoutout to] the Washington fans pushing for this to happen.” On a recent Twitch streaming session, current defensive lineman Jonathan Allen said Red Wolves “would be hype.”
Heitner said the team probably won’t have a trademark successfully registered before the new season starts. He said he has never seen a newly filed trademark application get approved and registered in less than five months, and it must “show use in commerce” first. He said the team still could apply for a trademark and begin using it while its application is still considered “pending.”
“What I find in today’s day and age, what’s important beyond the registration, is that you’re also able to grab the domain name and, maybe more importantly than that, all the social media handles associated with the name,” he said.
Many domain names, such as WashingtonWarriors.com, have been scooped up, though the identities of the owners aren’t publicly known.
Gerben said the team might have applied for its trademark already. There is a five-day window from the time an applicant files paperwork to when it appears in the publicly accessible database, which means the team could have filed for something that for at least a few days remains hidden from public view. If it wanted to be even more secretive, it could file for a trademark in another country under terms of the “Paris Convention,” which would provide a stake in the ground and give the organization trademark rights in the United States as well.
“When you’re trying to clear a name that’s going to be this high-profile, you’re going to take a decent amount of time to make sure that you feel very confident that the name is clear,” Gerben said. “Sometimes you’re looking for something that’s not there, and that can take a lot of time.”