We have previously blogged (1,
2) about the Washington Redskins professional football team and allegations made by third parties that the term “REDSKINS” is disparaging. Thus far, the Washington Redskins have refuted these allegations and have indicated that they have no intention of changing their name.
As reported by The Washington Post, the U.S. Patent and Trademark Office recently issued an initial refusal of a trademark application to register “REDSKINS HOG RINDS” for “pork rinds.” The Trademark Examiner, in refusing registration, concluded that the term “REDSKINS” is disparaging. In support of this conclusion, the Trademark Examiner cited dictionary definitions referring to the word “REDSKINS” as “offensive slang” and a “disparaging term” for Native Americans. In addition, the Trademark Examiner cited a number of news articles indicating that Native Americans find the term to be offensive.
While some have erroneously portrayed this latest decision as a death knell to the trademark rights of the Washington Redskins, the truth is that decisions of a Trademark Examiner have little precedential value. To the chagrin of many trademark attorneys, the U.S. Patent and Trademark Office typically decides issues according to the specific facts of each case, and not necessarily with regard to the manner in which similar issues have been resolved in the past. In addition, in this case the decision is an “initial refusal,” meaning that the Applicant will have an opportunity to argue against the decision and to appeal any final refusal, if appropriate.
More importantly, those who petition to cancel the existing “REDSKINS” trademark registrations before the Trademark Trial and Appeal Board will generally be required to show that the term was disparaging at the various points in time when it registered.
Significantly, however, the recent decision may be indicative of the changing perception of the term “REDSKINS” in society. The fact that the Trademark Examiner was able to cite to numerous reference materials indicating that the term is disparaging may foreshadow the obstacles that similar applications may face in the future.
Please continue to check this blog frequently for updates regarding this burgeoning trademark issue.
