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Redskins Win Right to Keep Their Nickname…..For Now

RedskinsThe NFL’s Washington Redskins have won another legal decision against a group of Native Americans who claim that the team’s nickname “Redskins” is racially offensive.

The battle between the Native Americans and the NFL franchise for the right to use the “Redskins” has been going on for over 17 years.  The attorneys for the Redskins based their case on trademark law, claiming that if the team lost to their right to use the nickname, the organization would lose millions that have been spent on the Redskins brand.  The Redskins trademark was first registered and used in commerce in 1967. The Native Americans challenging the trademark, first challenged the mark in 1992, 25 years after it was first used in commerce and the court ruled that the Native Americans waited too long to challenge the mark.

Another group of Native Americans plan on challenging the mark and will try to get the case challenged on its merits, that the term “Redskins” is racially disparaging and scandalous.  The Native Americans plan on challenging the mark under under section 2(a) of the Lanham Act which states that “no trademark shall be refused unless it “consists or comprises of immoral, deceptive, or scandalous matter.”  To determine whether a mark is disparaging the court must look at (1) the likely meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the services identified in the registrations and (2) whether that meaning may be disparaging.   To determine whether a mark is scandalous the court will look at (1) the view of the general public and (2) in the context of contemporary attitudes.

As the court ruled in Harjo v. Pro Football Inc. (1999), I believe a court would find that disparagement could be proven, but not that the mark is scandalous.  The Scandalous test cannot be met as the general public views the Redskins mark in association with a proud NFL franchise in which the players are akin to warriors.  Some Native Americans have even been quoted as saying that they don’t mind the Redskins mark as long as the team depicts Native Americans in a favorable manner.  Disparagement could be proven under the test stated above, as it is possible that the mark is disparaging.

Even if it can be proven that the trademark is disparaging, it will be extremely difficult for anybody to challenge the mark at this point as the mark should have been challenged when it was first approved by the U.S. Patent and Trademark office in 1967.  The mark is now accepted by the general public and a multi-million dollar brand.  The courts are hesitant to take away a mark if those offended by the mark did not challenge the mark at an appropriate time when they had the chance.


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Richard J. Symmes, Esq
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