21 March 2013Trademarks

US Representatives launch bill to stop ‘Redskins’ trademark

A group of US House of Representatives members has presented a bill to prohibit trademarks of the term ‘Redskins’.

If passed, the bill will cancel all existing federal trademarks that use the term to refer to Native Americans, including those owned by National Football League (NFL) team The Washington Redskins.

Eni Faleomavaega, a non-voting delegate for the American Samoa district, wrote the bill entitled Non-Disparagement of American Indians in Trademark Registrations Act of 2013.

Since registering its first trademark in 1967, The Washington Redskins has faced a number of appeals seeking to cancel the mark, as it can be deemed a racial slur. The NFL team holds that the term is not intended to offend, and that it honours Native Americans.

The team lost trademark protection for the term in 1999 after seven Native Americans petitioned for cancellation of its marks to the Trademark Trial and Appeal Board (TTAB) in 1992. The decision was eventually overturned in 2005.

Five Native Americans filed a new case to cancel the mark in 2006, which they argued at the TTAB earlier this month.  Judges on the board concluded that the plaintiff must prove the name Washington Redskins was disparaging to a significant proportion of Native Americans when the team received its trademarks.

Michael Boudett, partner at Foley Hoag LLP in Boston, said that although the bill faces “long odds” of being passed, the gesture of offering it may be intended primarily to put pressure on the team’s ownership.

“It is a positive sign that both Democrats and Republicans (including Tom Cole, a Native American) are sponsors of the bill. On the other hand, many more bills are filed than passed every year, there is a parallel Trademark Trial and Appeal Board case that Congress would likely wish to defer to, and there are difficult fiscal issues clogging up Congress,” he said.

He added that if the bill does pass, the NFL team would not be legally obliged to change its name, though it would face challenges in brand control: “They would lose much of their ability to control licensing of clothing and other merchandise featuring the team name, which is a large business for all major sports.

“They could try and fall back on their ‘common law rights’ in the absence of a federal registration.  My sense is that they would be forced to change the name as a business matter.”

He added: “The Redskins are a long-standing and successful NFL franchise with a very high name recognition and loyal fan base.  Re-branding the team with a different name would involve a multi-million dollar advertising campaign ... The value of the franchise would likely fall slightly in the short term.  The team might well recover in the long term, though, particularly if they select a name that fans like and adhere to.”

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