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DOJ: Patent Office Was Right to Revoke Redskins Trademark

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By Christopher Coble, Esq. on March 25, 2015 3:55 PM

As more football players are trademarking their names and catch phrases, one team has been losing its battle to keep the trademark on its controversial mascot.

The United States Patent and Trademark Office (PTO) cancelled the Washington Redskins' trademark last June, based on the mark being "disparaging to Native Americans." On Monday, the Department of Justice threw its support behind the decision, saying the perspective of Native Americans to the team name outweighed the NFL franchise's alleged intent to honor them.

Where the Case Stands

The team, referred to in court documents as the notably R-word free Pro-Football, Inc. (PFI), appealed the USPTO decision by suing the Native Americans who filed the original complaint. PFI claimed the cancelling of the trademark infringed their First Amendment rights and attacked Section 2a of the Lanham Act, the trademark law that refuses registration of marks that "disparage ... persons, living or dead, institutions, beliefs, or national symbols."

While the appeal is pending, PFI retains their trademark rights to the team name. The next court hearing is scheduled for June 24.

Where the Case Might Be Going

Though non-binding, the DOJ memo is a strong show of support for the PTO's decision. The DOJ contends that a refusal to issue a trademark does not infringe on free speech, because the team is still free to use the mascot name, but "simply ... barred from enlisting the [PTO] in support" of its speech.

The DOJ also countered PFI's accusations that the Lanham Act is overbroad or vague, contending that the Trademark Trial and Appeal Board's definition of a disparaging trademark -- "one that may 'dishonor by comparison with what is inferior, slight, deprecate, degrade, or affect or injure by unjust comparison'" -- is a "comprehensible normative standard."

As noted above, if the PTO decision is upheld, PFI could continue to use the mascot name. But they would lose their ability to enforce any trademark rights against other parties also using the name. This may not force team owners to change the name, but it may encourage them to do so, in order to have a protectable mark.

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