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Trademark Board throws Redskins for a loss, but the game is not over

You knew this was coming, Redskins fans. The Trademark Trial and Appeal Board today cancelled the federal registration of The Redskins® trademark. The Trademark Board has telegraphed its biased animus toward the brand for over a year. It ruled against the Redskins in 1999 before the U.S. District Court slapped them down.

The media screams end-of-the-world headlines now as it did then.

That is pretty much how this scenario will play once more. While the Trademark Board made its ruling, the Redskins will continue to enjoy its trademark protection until the legal process is complete. The Court battle will play out for the rest of the decade.

Daniel Snyder is still the only one who can change the name.

Hog Heaven has yet to read the Trademark Board’s latest ruling (It makes perfect beach reading under an umbrella in Ocean City.). The District Court had slight regard for the Trademark Board’s last ruling in 1999. They as much as called the Board’s thought process sloppy.

Here is what I wrote about the District Court’s ruling a year ago.

“U.S. District Judge Colleen Kollar-Kotelly said that the TTAB’s findings were insufficient to sustain a legal ruling of disparagement. She also wrote, ”Perceptions of the general public are irrelevant to determining if the [trade] marks are disparaging to Native Americans.” What matters under the law is whether the Washington Redskins used the trademark to disparage Native Americans as they built their brand.”

The judge went on to say that the Board did not present sufficient findings for her to make a ruling on the trademark issue. She reversed the Board’s finding on a technicality.

In a statement today, the Redskins said that the Board’s ruling had no effect on the team’s ownership and right to use the name and logo. They expect to prevail in a real court. (“Real court” my words, not theirs.)

One purpose of the trademark law is to protect business from the public’s changing taste. I will be looking the Boards finding that the Redskins disparaged. That is a distinct issue to whether some others take offense after 80 years of business use.

The law of unintended consequences

While the effect won’t be immediate, one result from cancelling federal protection from the trademark is that it will widen use of the image, not kill it off. Trademark registration gives the Redskins authority to squash unauthorized use by others of the team logo, name and color scheme.

There has always been some revenue leakage, like hats and tee shirts sold around the stadium. Trademark registration gave the U.C. Customs Service authority to seize counterfeit merchandise at the border.

Anyone can use the brand in theory if the Redskins lose trademark protection. Any jerk can contort the dignified logo into any clownish spoof they please without the threat of federal court to hinder them. They would not even have to restrict themselves to promoting sports entertainment.

With a diehard owner and dieharder fans who want to keep the name alive, there will always be a market for the Redskins brand. Without legal control, use of the brand by others will go up, not away.

Hail to the Redskins! The fight is not over.

That ® symbol is a mark that exclusive use of the trademark and brands is enforceable in federal court.

Anthony Brown

About Anthony Brown

Lifelong Redskins fan and blogger about football and life since 2004. Joined MVN's Hog Heaven blog in 2005 and then moved Redskins Hog Heaven to Bolguin Network. Believes that the course of a season is pre-ordained by management decisions made during the offseason. Can occasionally be found on the This Given Sunday blog and he does guest posts.

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