The Washington Redskins are on the verge of winning big! Their trademark rights are about to be vindicated. That’s one good reason, I say, for them to throw in the towel.
In my recent article, Federal Court Upholds Offensive Trademark as Free Speech, I discussed the new Federal Circuit en banc decision in In re Tam, which reversed the U.S. Patent and Trademark Office Trademark Trial and Appeal Board (“Board”) decision refusing to register “The Slants” as a trademark for a popular band. The Board’s refusal was based on its determination that the mark is disparaging of Asians. The Federal Circuit agrees that the mark is disparaging, yet it has held that First Amendment freedom of speech trumps offensiveness, and the Court has stricken as unconstitutional the relevant part of Section 2(a) of the Lanham Act pertaining to disparagement.
The Tam decision applies to the Redskins
If “The Slants” is a valuable trademark for the band bearing that name, and if the legal issue is large—and that’s all true—the really valuable family of marks that stands to benefit is the Redskins trademark portfolio of six registrations recently stricken by the Board on the basis of disparagement. In Tam, The Federal Circuit made a point of stating that the Redskins marks should not have been stricken.
There has been much ink spilled in the Redskins trademark battles. The Federal Circuit opinion lists several scholarly law review articles on the subject. The Washington Post published a good article on the Redskins marks on June 18, 2014, with a link to the Board decision. The attached photo of Redskins helmets is from the Redskins’ own site accompanying their Statement on the Judge’s Trademark Opinion (July 8, 2015) (apparently in response to a district court opinion that relied on the Board’s cancellation of Redskins trademark registrations).
Since the Federal Circuit handed down its new pronouncement in Tam, there has been a lot of press predicting that the Redskins will now have their way. A well-written New York Times article of December 22 is typical in stating this viewpoint, albeit cautiously.
There will be more litigation, more briefs, more arguments, and more articles written. And in the end, if the Redskins keep pushing, they will win their legal battles in defense of their name and their trademark rights. They will win because of their constitutional right to freedom of speech.
Legally permissible is not the same as smart
Here’s the thing: As I stated in my article yesterday, just because someone has the legal right to do something, that doesn’t mean that it’s a good idea to do it.
The quarter billion dollar trademark
Much of the Redskins estimated value of $3 billion is attributable to the brand, which is worth a quarter of a billion dollars in its own right. See recent Forbes article on the Business of Football.
The President couldn’t change their minds
The Redskins have rejected calls from Native American groups and President Obama to change their name. They have huge value in their name. Now, their legal trademark rights in the name will be sustained.
So, they should keep using the Redskins name, right? Wrong.
They should change with the times. They’re not stupid: Surely they have conducted confidential, internal studies and identified two or three new, alternative names—”Red” this or that—or some variation of “Skins.”
With victory in sight, the Redskins should throw in the towel
Now that their trademark victory is assured, they should throw in the towel. Why? Because offensive, disparaging names are bad for business.
Disparaging names are bad for business
Will they change? I doubt it. At least, I’ll be surprised (and pleased for all concerned) if they make that move promptly. But to do so would take more courage than to run the ball on fourth down.
There is a time to stand on one’s legal rights. There is another time to move on.
Washington’s team should say, we proved our point. Now we embrace the future.