On June 17, 2014, the Trademark Trial and Appeal Board (“TTAB”) of the U.S. Patent & Trademark Office (“USPTO”) canceled six trademark registrations of the Redskins football team as disparaging under Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a). Blackhorse v. Pro-Football, Inc., T.T.A.B., No. 92046185, 06/18/14.
Section 2(a) of the Lanham Act states that no trademark registration shall be refused unless it “[c]onsists of… matter which may disparage or falsely suggest a connection with… beliefs, or national symbols, or bring them into contempt, or disrepute.”
The 2-1 TTAB decision found that a substantial composite of Native Americans considered the term “Redskins” to be disparaging at the time the marks were registered.
A disparagement determination under Section 2(a), according to the TTAB, depends on (1) the meaning of the term in connection with the goods and services, and (2) whether that meaning of the term was disparaging to the referenced group at the time of registration.
The panel majority found overwhelming evidence that the term REDSKINS, as it appears in the marks, retains the meaning of “Native American.” As for the disparaging effect of term, the TTAB pointed out that the relevant group is only the group described by the mark, i.e., Native Americans, and not the general public or the football team itself.
The panel found disparagement at the time of registrations after considering expert testimony, dictionaries, reference books from the time, and a resolution of the National Congress of American Indians (“NCAI”).
The Washington Redskins plan to appeal the decision, and have expressed confidence that it will be overturned.
In the meantime, the registrations will remain in effect while the case is on appeal. Furthermore, although the process could take years, the team could still continue to use its names and could try to stop third parties from using it by citing common-law rights that are based on use, not registration. The Redskins franchise has used the name since the 1930s. Therefore, even if the decision is not overturned, the Redskins can use the name and enforce its trademarks using common-law rights.