Updates from Thursday, June 19
NFL's Albert Breer provides a synopsis of Erik Syverson, partner and intellectual property attorney of Raines Feldman, discussing the Redskins trademark cancellation:
1) Syverson said he'd view this as significantly different from the 1999 case, because of the shift in public sentiment, which matters here.— Albert Breer (@AlbertBreer) June 19, 2014
2) He emphasized that the appellate court never ruled that the evidence brought in 1999 was insufficient to prove "Redskins" is disparaging.— Albert Breer (@AlbertBreer) June 19, 2014
3) The 1999, rather, was reversed on a laches defense, a doctrine that says if you wait too long to take action, you lose the right.— Albert Breer (@AlbertBreer) June 19, 2014
4) Change of venue is important here too, per Syverson. Appeal goes to a different court due to realignment under the America Invents Act.— Albert Breer (@AlbertBreer) June 19, 2014
5) As we know, this isn't over legally. But Syverson says it could be the final straw. Businesses sometimes see these as opp's to change.— Albert Breer (@AlbertBreer) June 19, 2014
In what could be the first step toward getting the Washington Redskins' name changed, the United States Patent and Trademark Office has decided to cancel six trademark registrations attached to the controversial moniker.
According to official court documents, the Trademark Trial and Appeal Board ruled in favor of a plaintiff group led by Amanda Blackhorse and against Pro-Football, Inc.
Per Travis Waldron of ThinkProgress.com, the board decided that the trademarks were "disparaging to Native Americans at the respective times they were registered."
Mike Garafolo of Fox Sports describes how the Redskins believe the ruling will impact them:
Redskins statement says ruling will have "no effect" on their using the logo. Say they're confident they will "prevail."— Mike Garafolo (@MikeGarafolo) June 18, 2014
Mark Maske of The Washington Post provides more reaction from the team:
Daniel Snyder declined to comment on the ruling in the Redskins name case as he left the practice field today at the team's mincamp.— MarkMaske (@MarkMaske) June 18, 2014
Bruce Allen when asked whether the Redskins can continue to use their name: "Did you read it?... We're fine. We're fine."— MarkMaske (@MarkMaske) June 18, 2014
The Redskins later spoke on the matter in a press release from Bob Raskopf, the trademark attorney for the team, which reads in part:
We are confident we will prevail once again, and that the Trademark Trial and Appeal Board’s divided ruling will be overturned on appeal. This case is no different than an earlier case, where the Board cancelled the Redskins’ trademark registrations, and where a federal district court disagreed and reversed the Board.
As today’s dissenting opinion correctly states, “the same evidence previously found insufficient to support
cancellation” here “remains insufficient” and does not support cancellation.
This ruling – which of course we will appeal – simply addresses the team’s federal trademark registrations, and the team will continue to own and be able to protect its marks without the registrations. The registrations will remain effective while the case is on appeal.
When the case first arose more than 20 years ago, a federal judge in the District of Columbia ruled on appeal in favor of the Washington Redskins and their trademark registrations.
As the district court’s ruling made clear in 2003, the evidence ‘is insufficient to conclude that during the
relevant time periods the trademark at issue disparaged Native Americans...’ The court continued, ‘The Court concludes that the [Board’s] finding that the marks at issue ‘may disparage’ Native Americans is unsupported by substantial evidence, is logically flawed, and fails to apply the correct legal standard to its own findings of fact.’ Those aren’t my words. That was the court’s conclusion. We are confident that when a district court review’s today’s split decision, it will reach a similar conclusion.
Ian Rapoport of NFL.com gave some background on the old case referenced in the Redskins' press release:
The last time the #Redskins were denied trademarks was in 1999. 4 years later, they won on appeal. So… buckle up. Might be a while— Ian Rapoport (@RapSheet) June 18, 2014
Following the ruling, lead plaintiff attorney Jesse Witten expressed satisfaction with the result in a press release:
The Trademark Trial and Appeal Board agreed with our clients that the team's name and trademarks disparage Native Americans. The Board ruled that the Trademark Office should never have registered these trademarks in the first place. We presented a wide variety of evidence—including dictionary definitions and other reference works, newspaper clippings, movie clips, scholarly articles, expert linguist testimony, and evidence of the historic opposition by Native American groups—to demonstrate that the word 'redskin' is an ethnic slur.
In a statement, Blackhorse echoed Witten's sentiment and heralded the decision as a potentially huge step in the quest to have the "Redskins" name eradicated, per Waldron.
I am extremely happy that the (board) ruled in our favor. It is a great victory for Native Americans and for all Americans. We filed our petition eight years ago and it has been a tough battle ever since. I hope this ruling brings us a step closer to that inevitable day when the name of the Washington football team will be changed. The team's name is racist and derogatory. I've said it before and I will say it again—if people wouldn't dare call a Native American a 'redskin' because they know it is offensive, how can an NFL football team have this name?
While this ruling doesn't mean that a name change is inevitable, it certainly puts Redskins owner Snyder in a tough position.
That means outside parties can conceivably produce Redskins merchandise, which will hurt Snyder's bottom line as well as the NFL's. Kristi Dosh of Campus Insiders expanded on this:
Attorneys tell me one implication is Redskins won't be able to stop counterfeit merchandise from crossing the border.— Kristi Dosh (@SportsBizMiss) June 18, 2014
According to Michael McCann of Sports Illustrated, however, Snyder may still be protected at the state level:
Redskins losing federal trademark is significant, but team may still have trademark rights via state laws & court decisions. #futurelawsuits— Michael McCann (@McCannSportsLaw) June 18, 2014
Snyder has been defiant under pressure to change the name thus far, and Sunday Night Football announcer Al Michaels revealed in a recent interview that Snyder doesn't have any intentions of changing his stance, per Dan Steinberg of The Washington Post:
It seems to me as if he is going to hold on. I mean all of the sudden—I mean, for 70-some odd years this was a zero issue, and then it became an issue. I understand we live in this politically correct environment. It's crazier than ever; you know, senators want to weigh in on this, like there's nothing better to do in Congress. This becomes a big issue. I mean, I just think it's nuts. And I do know, I've talked to Snyder about it—not recently but when we were in Washington last year—and he basically said 'over my dead body.'
A wealthy man like Snyder may brush off the financial issues that this creates in the spirit of keeping the name, but he may now be under pressure from the NFL to make a change.
This situation is still fluid since an appeal is likely to come, but those who oppose the Redskins nickname have clearly landed the first haymaker in this prize fight.
Follow @MikeChiari on Twitter.