The Challenge of Making Trademarks Match Changing Social Views

There has been much in the general and legal news about the challenge to the NFL Washington Redskins trademark registrations. Recently, a federal district court judge affirmed the decision of the U.S. Patent and Trademark Office (USPTO) Trademark Trial and Appeal Board (TTAB) to cancel the Washington Redskins’ trademarks as disparaging to Native Americans. In the much publicized case of Blackhorse v. Pro-Football, 111 USPQ2d 1080 (TTAB 2014), the Washington team and the National Football League faced a public relations problem. In this most recent TTAB decision, one in the series of actions against the Redskins, a group composed of representatives from five Native American tribes succeeded in convincing the TTAB that Native Americans find the Washington NFL team’s “Redskins” marks to be disparaging of them. While the NFL connection and the fame of the football team have drawn much attention to this case, the issue is larger than one case or one series of trademarks. The larger issue is whether there will be a new policy of trademark policing or a new recognition that there may have been mistakes made in some registrations because the majority of the public did not find the mark offensive.

Individuals on one side of this issue find it unsettling that an offended group is permitted to challenge existing, registered marks that have been in use for more than four decades as personally offensive and successfully strip away the trademark registration. Individuals on the other side of this issue find it unsettling that an organization was ever permitted to register the marks or that they were ever considered for use. What this conflict demonstrates is the evolving social value that is now in play when the USPTO trademark attorney reviews a new application or a challenge to an existing registration, or the TTAB reviews either decision. In other words, a trademark will not get a pass: because it is already registered; because it may apply to an individual who is a member of the disparaged class; or because the majority of the population does not find it offensive.