Washington’s NFL Team and U.S. Customs

by Winthrop & Weinstine, P.A.

Last week the NFL franchise that plays football nearbut not in — our Nation’s Capital, was dealt another significant legal and public relations blow that would have any rational brand owner working overtime on its re-branding efforts.

Professor Christine Haight Farley, at American University’s Washington College of Law, summarizes the Amanda Blackhorse decision here. And, our friend John Welch over at the TTABlog describes it as an “impressive opinion by Judge Lee” of the Eastern District of Virginia.

The timing couldn’t have been better, given the topic of discussion this past weekend at the 2015 National Native Media Conference in Washington, D.C. on “Race, Journalism and Sports: The Dilemma of the Washington NFL Team Name.

It was an honor to share the panel table with such an amazing and impressive group to discuss this important topic, including Presidential Medal of Freedom recipient Suzan Shown Harjo (President of The Morningstar Institute), award-winning journalist Tristan Ahtone, Christine Brennan (Sports Columnist at USA Today), Mark Memmott (Supervising Senior Editor, Standards & Practices at NPR), and Professor of Law Christine Haight Farley (American University, Washington College of Law).

Keith Woods, NPR’s VP for Diversity in News and Operations, did a fabulous job of moderating the lively panel discussion and questions from those in attendance. After the ninety minute panel discussion with Q&A, Mr. Woods incite-fully concluded, noting the team’s actual name — a recognized racial slur — had only been said twice, yet it wasn’t difficult to avoid using it, and in doing so, no meaning was lost in the process. So, let’s all just stop using it.

From the legal perspective in Blackhorse, once the team has exhausted appeals, and the decisions to cancel the federal registrations containing the racial slur have been affirmed, the team will no longer be able to use the federal registration symbol — ® — because the revocation of the federal government’s previous and improper imprimatur and approval of it will be final.

Another consequence, among others, will be that the federal registrations containing the racial slur, currently recorded with U.S. Customs and Border Protection, for the purpose of preventing counterfeits from entering the country, will be a nullity and removed from recordation.

My question, why aren’t they a nullity already? The two registrations that purport to protect the racial slur, are service mark registrations, not trademark registrations — they only cover entertainment services, no clothing, no merchandise.

In addition, the team currently has no federal registrations that include the racial slur — for any products, goods, or merchandise — that it could record with U.S. Customs as a trademark. In any event, isn’t Dan Snyder more concerned about counterfeit clothing and trinkets than counterfeit entertainment services, even assuming there could be such a thing.

So, did U.S. Customs and Border Protection drop the ball when they recorded the team’s service mark registrations, when they were improperly designated as trademark registrations? Anyone aware of the process of removing improper recordations?

So, how helpful can U.S. Customs personnel be to Dan Snyder and his team, in this very moment, when he has nothing helpful containing the slur recorded with Customs, and he can’t get any, while he continues to kick the can down the road, by exhausting all appeals in this case?

Yet another consequence of losing the R-Word registrations he does have will be for the USPTO to stop doing the team’s bidding by refusing registration of another’s application on the ground of likelihood of confusion for recent marks like “Washington Redskin Potatoes.”

Lanny, given all this, will Dan Snyder ever go lower case on his promise to never change the name?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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