The six trademarks were registered between 1967 and 1990. Section 2(a) has been in force during all that time. I think it has been part of the statute since the Lanham Trademark Act was first enacted in 1946, but I’m not sure about that.
Well, the Dykes on Bikes already have a ruling in their hands saying that it’s not disparaging – their application was initially rejected as disparaging but I believe they eventually won on appeal.
As for other potential examples –
The law says that the disparaging nature of the term must have been in existence at the time of registration. That’s what the TTAB says has been proven – that the term was disparaging in 1967.
Certainly the purpose of the provision is, at least partly, to encourage people who find such a term disparaging to try to prove it. The policy decision made by Congress was that they didn’t want the law giving legal power to those asserting disparaging marks.
Exactly. If upheld, the decision hurts Snyder financially, in that he would not be able to prevent other people from selling Redskins merchandise (presumably at lower cost).
Whether the decision helps the people harmed by the team’s name is a different and more difficult question, since it means that there may be a new flood of cheap Redskins merchandise on the market.
The U.S. District Court for the District of Columbia rejected the TTAB’s conclusion about the evidence.
But the U.S. Court of Appeals for the District of Columbia ignored the evidentiary issues and ruled only on the laches issue.
This time Snyder has a choice of (1) going to the U.S. District Court for the Eastern District of Virginia (who can hear the whole matter from scratch), which can be appealed to the U.S. Court of Appeals for the Fourth Circuit or (2) appealing directly to the U.S. Court of Appeals for the Federal Circuit (where no one can introduce new evidence or arguments that weren’t raised before the TTAB)
Of note is the fact that the evidence in the record this time isn’t significantly different from last time and it might even be slightly smaller in quantity. That doesn’t really make it a good case going into district court.
What’s more important for the people who want the name changed is that the decision hurts the NFL as a whole. Snyder’s able and willing to take a financial hit to keep the name, but the NFL has a 31-team (everyone but Dallas) revenue sharing agreement that relies on their trademarks. If the decision starts to affect the bottom line of 30 other teams, Snyder’s going to face pressure from the league (which has previously supported him). That’s going to be a lot harder for him to brush off than a split public opinion.
The hell of it is, he might actually make a ton of money by changing the name, as fans rush out to buy a wave of new stuff. His stance just seems increasingly self-defeating.
Not sure what one he was thinking of but seems to me the only poll that should matter should be among the group that is referenced in the term and whether they find it offensive.
As one might expect among American Indians there is a difference of opinion on this but by-and-large they seem to be mostly ok with it.
Hell, in some cases their own football teams are named the Redskins (see previous link).
If they cannot be overly fussed about it I see no reason why other people should be.
This.
If Snyder changed the team name to the Washington Renegades (for example) and came up with a new logo, there would be little doubt that the trademark would be legitimate (meaning the team could protect it from cheap knock-offs). People who support the change would likely run out to buy the new gear. People who don’t care, but are fans of the team, would also likely run out and buy the new gear. Some stalwarts would probably keep their old stuff just to make a point, but even they’d capitulate after they got used to the new look (and the team could keep its colors, so it wouldn’t seem like too severe a change). Voila: Profit!
The standard the TTAB uses to determine what “they” think is “whether a substantial composite of the referenced group found REDSKINS to be disparaging in the context of respondent’s services during the time period 1967-1990” and this “substantial composite … need not be a majority.”
A portion of their finding that such a substantial composite existed rested on a resolution adopted by the National Congress of American Indians in 1993 that the term had always been disparaging as used by the team, as well as efforts going back to the late 1960s to persuade them to change the name. The evidence of dictionary entries was also cited.
They pool sales in some fashion (I do not know the details on how it is divided up) but that doesn’t mean they do not care. Indeed this means there will be pressure from the rest of the NFL to have the name changed since they will all lose some money. Not least because the Redskins are among the most sold NFL merchandise out there.
That’s as far back as the data goes, mainly. Face it, sensitivity to Indian sentiments, or to any minority’s civil rights for that matter, was never a big deal to more than a loonie lefty fringe before the Sixties. No poll data because nobody cared enough to pay for it.
I’m more wondering why if they are revoking the trademark today that they are relying on sentiments from roughly 50-25 years ago?
People’s opinions change. We do not ban bikinis on beaches because someone 100 years ago might be appalled. We apply today’s standards and feelings about it. I do not see why this should be any different. 24 years at the minimum seems more than a little out of date to rely on.