When the Washington Commanders unveiled their new name and uniforms in February 2022, team executives detailed the lengthy rebranding process that had included months of sifting through trademark registrations.
“We didn’t want to risk going down a route that could be dotted with legal hurdles,” Commanders President Jason Wright wrote on the team’s website in January 2022. “The prospect of years of litigation wasn’t something that we wanted you, our fans, to have to bear as you begin to embrace a new brand.”
But 15 months into the Commanders era, the franchise has yet to have its name trademarked.
The. U.S. Patent and Trademark Office denied the Commanders’ trademark May 18, citing “a likelihood of confusion” with other similar marks. The USPTO referenced the Commanders’ Classic, the annual Army-Air Force football game, as well as other marks with Washington or Commander that are used to sell goods. It also cited the Washington Space Commanders and Washington Wolf Commanders, trademarks owned by Martin McCaulay, 64, who has purchased numerous marks of fictional sports teams over the past decade.
In a statement from a Commanders spokesperson, the team deemed the USPTO’s denial “an ordinary course step in the standard trademark registration process” and argued “there is no likelihood of confusion” between its name and the other cited registrations.
“We do not believe that any trademark registrations that were obtained by squatters who attempted to capitalize on the Club’s name change should stand in the way of our registrations,” the statement read.
The team has three months to make its argument directly to the USPTO.
“Trademark law from a policy perspective exists to protect a consumer, not a company,” said Josh Gerben, a trademark attorney and the founder of the D.C. firm Gerben Perrott. “The idea is to protect consumers from being confused as to who’s offering them goods and services. Would the average football consumer think that the Washington Commanders is somehow related to the Commanders’ Classic game at the college level? I think that’s a huge stretch, and I think that that would be the crux of their argument to the USPTO.”
In short: The denial is a blip, not an obstacle likely to derail the team’s application.
“I just think it’s a matter of time [before it’s approved],” Gerben said. “Because now you’re operating without the benefits of a federal registration and you’re a major football team.”
The hurdle is one Washington’s NFL franchise has overcome multiple times.
A years-long battle of the team’s original, controversial name dragged through the USPTO and the courts amid calls for a change. And in 2021, a year after the team announced it would rebrand, the USPTO denied the trademark application for its temporary moniker, Washington Football Team. Among the reasons: McCaulay’s collection of registered marks. (Oddly enough, the USPTO approved the Washington Football Team trademark and issued the team a certificate of registration Tuesday.)
Since 2013, McCaulay has applied for multiple trademarks of potential team names, drawing the ire of fans and others who believed he was holding up the rebranding process by stockpiling marks so he could request a sum from the team in exchange for relinquishing them. McCaulay has said his trademarks are part of his hobby of selling merchandise and books online.
In 2020, his attorney, Darren Heitner, even wrote a letter to team owner Daniel Snyder to assure him “there [was] nothing to fear” and that McCaulay would “gladly do whatever is in his power to clear a path for the Washington NFL team to rebrand itself without the need to incur substantial legal fees.”
McCaulay said Thursday that neither Snyder nor the team responded to that letter or contacted him directly about any of his trademarks.
“They can have my trademarks if they want to make a contribution to Native American college scholarships,” he said. “They don’t have to give me any money.”
Gerben said that none of the owners of any of the registrations the USPTO cited in its denial could make a “realistic argument” the team shouldn’t be able to use the name, and “nothing about this finding by the USPTO would require they change the name.”
But the plight of the Commanders’ trademark has seemed to intensify calls for yet another name change.
In recent weeks, after a group led by Josh Harris reached an agreement to purchase the Commanders for $6.05 billion from Snyder, fans, including McCaulay, and some media members have called for the end of the Commanders era.
Commanders fans, do you want the new owner to change the name of the team again?— Grant Paulsen (@granthpaulsen) March 22, 2023
According to a citywide Washington Post poll published shortly after the team unveiled its new name and uniforms in 2022, close to half of D.C. residents had a negative view of the team’s new name, with 32 percent disliking it and 17 percent saying they “hate” it.
Restarting the process would be costly and difficult; NFL rules typically prohibit teams from changing their uniforms, names or logos more than once in a five-year span, but the commissioner can approve exceptions. A change in ownership is one of them.
Still, a team is required to give at least a year’s notice to the NFL if it wants to change its uniform or name, and it must receive approval by December of the year before the one in which it hopes to make the change.
Then there are the legal obstacles in the trademark process. Gerben said an abundance of applications in recent years has backlogged the USPTO, and approval now takes “a minimum of 10 months.” The team’s application for the Washington Commanders could take months, even years, to finalize.
“I don’t think the process would be much easier, let’s put it that way,” Gerben said of another name change. “I think any trademark registration process for the name of a professional sports team in this day and age is going to be much more difficult than it ever has been before.”