A few weeks ago, we predicted that a Federal Circuit ruling affirming a decision by the Trademark Trial and Appeal Board ("TTAB") regarding disparagement may impact the trademarks registered for the Washington Redskins. Earlier today, in a landmark decision, the TTAB ruled that six federal registrations for the "Redskins" trademarks must be cancelled after finding that the term was disparaging of Native Americans.
This decision does not necessarily resolve the dispute regarding whether the term is entitled to trademark protection. The owner of the trademarks at issue, Pro Football, Inc., can seek review of the decision in federal court. Based on recent Federal Circuit case law, as discussed in our prior post, the owner may have a difficult time overturning today's ruling. In any event, the registrations will remain on the federal register of marks and not be listed in the USPTO's records as "cancelled" until after any judicial review is completed.
Strong opinions about the TTAB's decision are already flooding the news cycle. Despite the significance of the decision and the polarizing opinions, no matter what happens upon any additional judicial review, the Washington D.C. professional football team will not be required by the ruling to change its name. To the extent the decision is upheld, it will simply lose the legal benefits conferred by a federal registration, which include:
the legal presumptions of ownership and of a nationwide scope of rights in the trademark;
the ability to use the federal registration Â® symbol; and
the ability to record the registrations with the U.S. Customs and Border Patrol Service so as to block the importation of infringing or counterfeit foreign goods.
While the TTAB's ruling and the likely impending cancellation of the "Redskins" marks may speed up a decision by the Washington D.C. professional football team to change its name and rebrand, this story will probably not be going away anytime soon.
For those who missed it the first time, here is Keith Olbermann's take on the issue, which includes some insight into how economics may play a role in the ultimate rebranding of football in our nation's capital.
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