Just when you think Washington D.C.’s NFL team couldn’t make another fight for their trademark, they do. And as they went in front of the appeals last week their opening brief took it even further.
After the USPTO granted a petition from Native American groups to cancel six of the “Redskin” trademark registrations, the battle has only gotten more public, contentious, and dire for the NFL team. As always the team has stuck by the name, insisting that it was not disparaging or the cause of any contempt. And though their latest argument may be off base, it could be getting at a cleanup the PTO sorely needs.
After a federal judge upheld the cancelled trademark this summer it seems the NFL team is ready to concede that, sure, their mark is offensive. But that’s ok, their brief says, because the USPTO has let plenty of offensive trademarks through. Put simply their argument is: “So? Everyone else is doing it!”
They have a lengthy list of examples that draws a lot from porn trademarks, which as you can imagine (or see in the brief for yourself) are quite colorful and crass. Which, is kind of missing the point of the claim against the Redskins. The difference is that the team’s mark has been challenged as disparaging, by people who have cited literary, scholarly, and dictionary evidence, as well as with statements from affected individuals—not just vulgarity. It’s not purely visibility or offensiveness separating these tactless trademarks from the NFL’s, it’s a challenge (and by calling attention to these marks, it’s possible all the NFL accomplishes is ushering in more complaints about offensive trademarks).
But for as much as this might be a Hail Mary pass, the Washington team is putting the spotlight on whether or not the TTAB considers these trademarks governments speech. It has, after all, vetoed marks from the get-go for being disparaging, like in the case of The Slants, as Kevin Goldberg writes for CommLawBlog:
The Slants are an all-Asian, “ChinatownDanceRock” band formed in 2006 and fronted by Simon Shiao Tam. In 2010, Tam decided it was time to register the band’s name as a trademark. As it happens, though, federal trademark law expressly permits rejection of a proposed registration if the mark “disparages” people (as well as institutions, beliefs or national symbols). Tam’s first application was rejected by the PTO Trademark Examiner, who concluded that the name “Slants” disparages people of Asian descent, even though Tam pointed out that he and his band are themselves Asians. Tam re-filed his application in 2011. The Examiner again concluded that the mark is disparaging. On review, the Trademark Trial and Appeal Board agreed.
The NFL’s “Redskins” mark took years and a challenge to finally get rescinded, but The Slants’ attempted reclamation of a slur is deemed too disparaging from the get-go? At the very least, it’s clear the process—whatever it may be—for whether a trademark is offensive or not seems to be applied unevenly.
In this case, it’s unlikely that the Washington NFL team will suddenly get their trademarks back just because the USPTO has approved other offensive trademarks. But the more they appeal their case the more they might unpeel the onion, and they might even be able to bring some clarity to the trademark world.