Press Release: STATEMENT BY BOB RASKOPF, TRADEMARK ATTORNEY FOR THE WASHINGTON REDSKINS

[TK]

PRESS RELEASE

 

For Immediate Release

June 18, 2014

 

STATEMENT BY BOB RASKOPF, TRADEMARK ATTORNEY

FOR THE WASHINGTON REDSKINS

 

LOUDOUN COUNTY, Va. – The following is a statement by Bob Raskopf, trademark attorney for the Washington Redskins, regarding today’s split decision by the Trademark Trial and Appeal Board:

 

“We’ve seen this story before.   And just like last time, today’s ruling will have no effect at all on the team’s ownership of and right to use the Redskins name and logo.

‘Redskins Are Denied Trademarks’

-Washington Post, April 3, 1999

 

‘Redskins Can Keep Trademark, Judge Rules’

-Washington Post, October 2, 2003

We are confident we will prevail once again, and that the Trademark Trial and Appeal Board’s divided ruling will be overturned on appeal.  This case is no different than an earlier case, where the Board cancelled the Redskins’ trademark registrations, and where a federal district court disagreed and reversed the Board.

As today’s dissenting opinion correctly states, “the same evidence previously found insufficient to support cancellation” here “remains insufficient” and does not support cancellation.                               

This ruling – which of course we will appeal – simply addresses the team’s federal trademark registrations, and the team will continue to own and be able to protect its marks without the registrations.  The registrations will remain effective while the case is on appeal. 

 

When the case first arose more than 20 years ago, a federal judge in the District of Columbia ruled on appeal in favor of the Washington Redskins and their trademark registrations.        

 

Why? 

 

As the district court’s ruling made clear in 2003, the evidence ‘is insufficient to conclude that during the relevant time periods the trademark at issue disparaged Native Americans...’ The court continued, ‘The Court concludes that the [board’s] finding that the marks at issue ‘may disparage’ Native Americans is unsupported by substantial evidence, is logically flawed, and fails to apply the correct legal standard to its own findings of fact.’ Those aren’t my words. That was the court’s conclusion.  We are confident that when a district court review’s today’s split decision, it will reach a similar conclusion.

In today’s ruling, the Board’s Marc Bergsman agreed, concluding in his dissenting opinion: 

It is astounding that the petitioners did not submit any evidence regarding the Native American population during the relevant time frame, nor did they introduce any evidence or argument as to what comprises a substantial composite of that population thereby leaving it to the majority to make petitioner’s case have some semblance of meaning.

The evidence in the current claim is virtually identical to the evidence a federal judge decided was insufficient more than ten years ago. We expect the same ultimate outcome here.”

 

 

[Jumbo]

edit--good--it should be a locked, stickied thread and now it is.

[91fanwagon]

Here we go again, I'm a lifelong skins fan, and of Indian origin .. from India, I dont get offended when Native Americans are referred to as "Indian" ?! But in all seriousness, how is this the big story??  There are real social, economic, and medical issues facing many native americans on reservations across the nation, yet the story is the disparaging nature of the Redskins logo/name??!!  While the teams record in the past few years may have driven many fans to drink and  contemplate throwing it all away, the actual numbers of Native Americans affected by alcoholism, and suicide (the highest percentages among americans) has nothing to do with the team, yet that isnt being reported on ... gotta love the free press.

[TK]

For discussion, go here:

http://es.redskins.com/topic/365985-the-official-es-redskins-name-change-thread-all-things-related-to-changing-the-teams-name-go-here/page-124

 

 

Meanwhile, I'll drop some other interesting articles relating to the trademark issue in here, just so some of you can get a better idea of what this all means (before going all internetkneejerkreactionary), which, in a nutshell, isn't much of anything. 

[TK]

http://www.washingtonpost.com/blogs/the-switch/wp/2014/06/18/7-questions-everyones-asking-about-the-redskins-trademark/?Post+generic=%3Ftid%3Dsm_twitter_washingtonpost

 

7 questions everyone’s asking about the Redskins trademark

 

 

The U.S. Patent and Trademark Office has canceled the Redskins' trademark registration after five Native Americans petitioned the government over the football team's controversial name. Calling it "disparaging to Native Americans," the USPTO's ruling strips away six of the Redskins' trademarks.

How big a deal is this? What happens next? Can you start printing your own Redskins T-shirts now? Read on for everything you need to know about this long-running intellectual property battle.

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?

Well, anything that the team uses with the word "Redskins" in it —redskins.com, Redskins pint glasses, even this weird-looking Redskins-branded high-heel bottle opener.

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.

Wait, really? 

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."

[TK]

http://www.forbes.com/fdc/welcome_mjx.shtml

 

Loss Of Redskins Trademark Registration Is Overblown

 

The Trademark Trial and Appeal Board (TTAB) has decided to cancel six federal trademark registrations that include the term “Redskins.”  The ruling was made in relation to the longstanding use of the mark by the National Football League’s Washington Redskins.  It was deemed that the use of “Redskins” by the NFL is disparaging of Native Americans, and thus the federally registered mark was effectively cancelled as of today.  The implications of this ruling have been greatly exaggerated.

Today’s ruling will have “no effect at all on the team’s ownership of and right to use the Redskins name and logo.”  That was the only emphasized and underlined portion of a statement by Bob Raskopf, trademark attorney for the Washington Redskins, which was released after the TTAB decision was announced.  The Washington D.C.-based NFL team intends to appeal the TTAB’s decision cancelling the federal trademark registrations.  More importantly, the team has recognized that it continues to own and is able to protect its marks without the registrations in place.  The organization is correct.

 

 

The Washington Redskins will remain playing under such name . . . at least for now. (Photo credit: Wikipedia)

ESPN.com Sports Business reporter Darren Rovell wrote, “[w]ithout protection, any fan can produce and sell Washington Redskins gear without having to pay the league or the team for royalties and wouldn’t be in violation of any law for doing so.”  That is simply not true.  The decision by the TTAB does not require the Washington D.C.-based NFL team to change its name, stop using the “Redskins” marks and it does not mean that the organization loses all legal rights in the marks.  There are benefits to having a federal registration attached to an owned trademark, including but not limited to a legal presumption of ownership of the mark and the ability to bring an infringement action in federal court seeking statutory damages.  Importantly, a lack of a federal registration in place does not equate to anarchy where any individual can create merchandise bearing “Redskins” marks and sell same in commerce.

If a sports fan decides to produce and sell Washington Redskins gear without obtaining advance permission from the team, and the gear creates a false representation that it originated from the NFL’s Washington Redskins organization, then that fan may be in violation of improperly benefiting from the use of the team’s common law protected trademark and be forced to pay damages related to the infringing use.

The U.S. Patent and Trademark Office makes the distinction between a federal registration in a trademark and common law rights quite clear.  It sayson its FAQ page, “Federal registration is not required to establish rights in a trademark.  Common law rights arise from actual use of a mark…”  The Washington Redskins organization has made it known that use of the Redskins name and logo will continue.  There is little doubt in the public sphere as to a clear association between such marks and the NFL organization.  Thus, whether the team prevails in appealing the cancellation of the federal registrations of the marks or not, it may still use such marks in commerce and prevent others from trying to benefit off of the use of same without consent.

[TK]

http://www.slate.com/blogs/moneybox/2014/06/18/washington_football_team_loses_trademark_case_why_it_might_not_matter.html

 

Why Washington’s NFL Team Might Not Need to Worry About Losing Its Trademarks

By Jordan Weissmann

 

The United States Patent and Trademark Office dealt quite the symbolic blow to Washington, D.C.’s professional football club today, when it canceled several trademark protections on the team’s name because it was disparaging to Native Americans.

 

It’s an important moral victory for the activists (and fans of basic racial sensitivity) who’ve been campaigning fruitlessly for decades, in court and out, to make the franchise change its moniker. But it might be worth tempering expectations here: Even if the decision holds up on appeal—which it might not—it’s unclear whether this ruling will actually cost the NFL or owner Dan Snyder much in the way of cash.

 

In theory, losing all trademark protection on Washington’s name could be financially painful. The league splits its roughly $3 billion in annual merchandise and licensing revenue evenly between 31 teams (the Dallas Cowboys opt out of the cooperative, because, you know, Jerry Jones). If companies were free to start cranking out Washington jerseys, shirts, and Snuggies without paying a fee, it might cut into those profits. That, in turn, could put pressure on Snyder to finally switch the name.

But, nice as that outcome would be, it’s not a given.

 

Before we get into exactly why, we need a quick rundown of today’s ruling. Under the Lanham Act of 1946, the federal government is not allowed to register trademarks that “disparage” any “persons,” “institutions,” or “beliefs.” In other words, you can’t trademark a racial slur. Today, a board ruled that Washington’s team name was, in fact, pretty odious and disparaging to Native Americans and revoked its registrations.

This is the second time the Patent and Trademark Office has reached this conclusion. Previously, a federal appeals court overturned the decision on technical grounds without ever deciding the substantive issue of whether the name was demonstrably offensive. With the technical issues apparently ironed out, this suit should finally answer that crucial question for good.

 

But here’s the key thing to understand: If Snyder and the NFL lose their case, they won’t actually lose their trademarks outright. They lose their federal trademarkregistrations, which, as Georgetown University law professor Rebecca Tushnet told me, is a crucial distinction. Without getting too into the weeds, it means that their trademark rights are basically dead in federal court. But if some guy with a T-shirt business started selling knockoff Washington football merch, the NFL could still sue him in state court under common law. At that point, whichever judge lands the case will have to decide all over again whether the name is too offensive for trademark protection. The judge might take their cues from the federal courts. But, according to Tushnet, she might not.  

 

“We don’t really know,” Tushnet told me. “There are old cases suggesting that ought to happen. But … we don’t have much in the way of recent cases.”

 

New York University law professor Barton Beebe, however, disagrees with the notion that Snyder is still in a strong position. “This argument is a pathetic backstop,” he told me in an email. “It assumes that the many state courts won’t also deny protection under state law on the ground that the term is disparaging. The NFL team may win here and there at the state level, but then they have to deal with patchwork enforcement. I suspect the NFL would in fact do even worse in many states. If they’ve lost federal protection, they’ve essentially lost property rights in their mark.”

 

But even if Beebe’s right, the Washington football team and the NFL might not lose much. First, the USPTO canceled the trademark registrations that involved the Washington name or combinations of its name and logo. The logo itself—the plain image of its mascot—wasn't at issue in the case. If some enterprising businessman made the mistake of slapping that profile onto a hat, the team could still probably sue. Meanwhile, individual player names are still protected. Nobody suddenly has permission to make RGIII jerseys.

 

So, in the worst of all possible worlds for the NFL, a few companies might be able to start producing Washington apparel without any logos or player names. Irritating? Yes. Disastrous? Probably not.

 

Then there’s the question of who would actually want to go into that business. As of now, the companies that want to produce pro-football-branded merchandise have to negotiate with the NFL for a collective license that covers all of the teams. (That could change, however, depending on the outcome of a pending court case.) Any corporation that decided to go rogue and start selling unlicensed Washington gear would undoubtedly incite the NFL’s wrath. That might be fine for the odd guy with a stand selling T-shirts on the corner, but not, say, Nike.

 

“You’re talking about bandits here,” said Scott Rosner, associate director of the Wharton Sports Business Initiative at the University of Pennsylvania. “Anybody who tries to evade is going to fall in the bad graces of the NFL, and they’re not going to get a license.”

 

In short, Snyder can lose this battle over trademarks, but still win this pathetic war.