Washington Redskins Trademark Registration Tossed Out

The United States Patent and Trademark Office issued a ruling Wednesday morning canceling trademark registrations for the name of the Washington R*dskins. The decision by the PTO's Trademark Trial and Appeal Board in the case of Blackhorse v. Pro-Football Inc. was made on the basis that the name is “disparaging to Native Americans” and, as such, cannot be trademarked because federal law prohibits the protection of offensive or disparaging language. The board stated:

The recognition that this racial designation based on skin color is disparaging to Native Americans is also demonstrated by the near complete drop-off in usage of "redskins" as a reference to Native Americans beginning in the 1960's.

The record establishes that, at a minimum, approximately thirty percent of Native Americans found the term REDSKINS used in connection with respondent's services to be disparaging at all times including 1967, 1972, 1974, 1978 and 1990. Section 2(a) prohibits registration of matter that disparages a substantial composite, which need not be a majority, of the referenced group. Thirty percent is without doubt a substantial composite. To determine otherwise means it is acceptable to subject to disparagement 1 out of every 3 individuals, or as in this case approximately 626,095 out of 1,878,285 in 1990. There is nothing in the Trademark Act, which expressly prohibits registration of disparaging terms, or in its legislative history, to permit that level of disparagement of a group and, therefore, we find this showing of thirty percent to be more than substantial.

Respondent has introduced evidence that some in the Native American community do not find the term "Redskin" disparaging when it is used in connection with professional football. While this may reveal differing opinions within the community, it does not negate the opinions of those who find it disparaging.

Amanda Blackhorse said in a statement:

“I am extremely happy that the [Board] ruled in our favor. It is a great victory for Native Americans and for all Americans. We filed our petition eight years ago and it has been a tough battle ever since. I hope this ruling brings us a step closer to that inevitable day when the name of the Washington football team will be changed. The team’s name is racist and derogatory. I’ve said it before and I will say it again—if people wouldn’t dare call a Native American a ‘redskin’ because they know it is offensive, how can an NFL football team have this name?"

The ruling does not preclude the use of R*ds*ins as a common law mark, it just prevents registration. That will have consequences. It means team owner Dan Snyder will have a more difficult time registering the mark in foreign countries, which means that the team would not have exclusive rights, which is what a registered trademark creates. No more licensing, which will cut into revenue from sales of all kinds of team paraphernalia. But Snyder can still seek exclusive rights here by asserting common law trademark rights.

The ruling is subject to federal court review, with the district court being the first stop.