US Judge orders the cancellation of the Washington Redskins controversial Trademark
By Prof Dr Ian Blackshaw
In a legal battle that has been going on for some twenty years over the use by the Washington Redskins American football club of their Redskins team name, a US Federal Judge, on 8 July, 2015, ordered the US Federal Trademark and Patent Office to cancel several trademark registrations held by the club in respect of this name. The Judge held that the name Redskins may be disparaging to Native Americans, who have been objecting to the name for decades, and he also cited dictionary entries stating that the name is considered to be offensive.
See PRO-FOOTBALL, INC. v. AMANDA BLACKHORSE, et al. 07/08/15 Case No. 1:14-cv-01043-GBL.IDD. United States District Court for the Eastern District of Virginia (Alexandria Division), where the full ruling, which makes interesting reading, may be found.
In his seventy-page ruling, the Judge held that US Federal Law allows the Government to exercise control over the content of the trademark registration programme. He equated trademark registration to ‘government speech’, which is not subject to the right of free speech guaranteed under the First Amendment to the US Constitution, as opposed to ‘private speech’, which is subject to this Constitutional legal protection.
In support of this point, the Judge cited a recent US Supreme Court ruling, handed down in June 2015, which allowed the State of Texas to bar the depiction of the Confederate battle flag on specialty vehicle license plates, which had been claimed by the Sons of Confederate Veterans.
He also held, inter alia, that the doctrine of ‘laches’ pleaded by the club does not apply in ‘public interest’ cases.
The present ruling does not prevent the club from continuing to use the name Redskins, if it wishes to do so. But the name would no longer enjoy the full legal protection afforded to a federally registered trademark.
In effect, the club would be relying on an unregistered trademark – a so-called ‘common law trademark’ – albeit one that the club has been using for more than eighty years to identify themselves and their sporting activities and, of course, any club merchandise sold under this mark!
The ruling is subject to appeal and the club has announced that they intend to appeal, although US commentators do not expect the appeal to be successful. When the matter is finally decided in the US Courts, we will hope to publish an in depth article on this important sports branding case in a future issue of ‘Global Sports Law and Taxation Reports’.
Prof Dr Ian Blackshaw is an International Sports Lawyer, Academic and Author and may be contacted by e-mail at ‘firstname.lastname@example.org’