If you’re a fan of the National Football League (NFL) or of decisions passed down by the US Patent and Trademark Office (USPTO), then you’ve probably heard: the Trademark Trial and Appeal Board canceled six federal trademark registrations owned by the Washington Redskins.
The reason: Section 2(a) of the Trademark Act of 1946, commonly known as the Lanham Act, calls for the cancellation of a trademark if it is determined at some future date to have been demeaning or scandalous at the time of registration.
In the past, public pressure has led companies to abandon offensive trademarks, leaving the application of this law unnecessary. Have you seen the Frito Bandito on supermarket shelves as of late? Me neither.
The Redskins, however, aren’t budging — just ask team owner Dan Snyder. And this is the second time the board has faced a petition to cancel the Redskins registrations. The Redskins will likely appeal the board’s decision. The process could take years, so you might want to hold off on your order of unofficial Robert Griffin III jerseys.
The events of June 19 have led many to consider the role the federal government plays — or should play — in deciding what is offensive to a particular group of people. Here are a few examples of trademarks that have been recently denied:
- A dance rock band called “The Slants” was found disparaging to a substantial number of Asian Americans.
- An Armenian wine called “Khoran” was found disparaging to the beliefs of Muslims.
Cultural sensitivity goes beyond the individual. Still, I’d like to believe that we all exercise good manners in our everyday conversations and interactions. However, corporations do need to have a greater awareness of potentially offensive content, taking a more strategic approach to addressing issues dealing with a wide range of sensitivities: cultural, religious, sexual orientation, etc. You can’t please everyone all the time, but an effort to not offend should be made, right? With that said, the government stepping in and basically telling the Redskins that their name should be changed makes sense. Or does it?
I’m not here to debate whether the name should be changed. And I’m not the first to question the government’s involvement in issues that can be viewed as beyond its scope or, frankly, its business. I’m simply curious as to what this type of ruling could mean for other corporations in the future.
I don’t fully understand the technicalities of what such a decision could mean, and I have a lot of questions: If the appeal process does not favor the Redskins, does that mean anyone with a printing press can profit from the name? What can the organization do to get its name back, so to speak? If such a situation occurs, does it make more business sense for the organization to change its name, after all? What could have been done to stop the decision, and how can a similar ruling be avoided in the future?
If I have all these questions and concerns, I can only imagine the questions the USTPO’s ruling has brought up for in-house counsel charged with protecting their company as a whole, especially for those who oversee patents and trademarks. To sate my own curiosity, and to hopefully offer some insight for in-house counsel, I have asked Alexander Winsberg, director of Legal Affairs & Risk Management at Angels Baseball LP, to write an article offering his overall thoughts on the situation from the perspective of an in-house counsel at a similar organization, which would face similar challenges if the USTPO canceled any of their trademarks.
In the article Just a Game? The USPTO Cracks Down on Disparaging Trademarks, Winsberg offers insight on the possible implications of the ruling for in-house counsel who are responsible for managing precious content for their companies, and provides his thoughts on what in-house counsel who are not so versed in trademark law should keep on their radar.
More on this topic in the news: