A Franchise By Any Other Name

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Before I get to Wednesday’s decision, I want to highlight where I have talked about the history of the Redskins franchise name before and some of the reasons they might want to change it here[1]. The piece about the Redskins is towards the bottom. In my post today I’ll be specifically talking about what changed this week, but if you want a little extra background please check that link.

On Wednesday the US Patent and Trademark Office canceled 6 trademarks the DC NFL franchise holds ruling them “disparaging to Native Americans.” It is illegal to trademark a disparaging term. I would like to emphasize this DOES NOT mean the team suddenly has to change its name. What it means is that it loses the right to put the ® after its name and instead must use the ™. I love providing you readers with unnecessary source material, so here is a link to the whole decision for those of you who enjoy legal jargon to start your weekend[2]. It is 177 pages.

The trademarks themselves are for names the team uses which contain the word ‘Redskin’. This includes Redskins, Washington Redskins, and Redskinettes(the team’s cheerleaders). It does not include anything having to do with the logo of the team. What the team in theory loses by this is the exclusive right to produce merchandise with its name. Joel Feldman, entertainment and media lawyer, had this opposing take in a recent interview, “The purpose of the Lanham act, which covers trademarks, is to protect consumers from deception so a court would probably not allow bootleggers to sell bootlegged merchandise that would deceive consumers even without the registration.”[3]

The NFL does have full profit sharing among the teams for merchandise sales(except the Dallas Cowboys, they have a separate contract) so if there really is a hit to Redskins merchandise sales it will be a shared burden between all the teams. This is important because as I’ve said before the only way the team name is being changed while Dan Snyder is their president is if the other NFL owners vote to force a change. The other owners don’t want to set a precedent that they aren’t really the final arbiters on matters involving their own teams, but a hit to the pocketbook may change some minds.

Merchandise is certainly not a huge moneymaker for the NFL though. The amount the NFL makes from commercials during just the superbowl almost outstrips the yearly gains from all merchandise(1.85 billion to 2.1 billion) and ticket sales are 25 times what merchandise sales are(51 billion).[4] The owners of NFL franchises didn’t accrue the amount of wealth they have by ignoring small hits to profits though, so we’ll see if it matters at all in the long run.

There was an attempt back in 1992 when seven Native Americans successfully sued to have the trademarks canceled, but that ruling was later overturned. After the ruling this week Redskins trademark attorney Bob Raskopf said, “We’ve seen this story before, and just like last time, today’s ruling will have no effect at all on the team’s ownership of and right to use the Redskins name and logo. We are confident we will prevail once again, and that the Trademark Trial and Appeal Board’s divided ruling will be overturned on appeal.” The Redskins are going to appeal this decision as well, and do retain all trademark rights while the appeal is running its course.

The reason the courts overturned the 90s decision was because they found it violated the Laches doctrine. Laches in this case is essentially a statute of limitations for trademark holders. It is in place to protect someone from filing for a trademark, it being granted to them, the organization putting a whole bunch of money behind the trademark, and then a suit coming down to pull the rug out from under them after there has already been substantial investment. In this case the court has ruled that Laches does not apply so Mr. Raskopf shouldn’t be quite as ready to draw parallels between the organization’s successful appeal in the past and the current situation.

This could be the start of dominoes falling, but when Dan Snyder says, “We’ll never change the name. It’s that simple. NEVER — you can use caps,” he means it. In his mind the name truly represents his childhood and cheering for the team he loves. I don’t think any amount of legal precedent or letters from congress are going to change his mind on the issue, and his mind changing is the only way the name is changing while he is president of the team.

As always, questions, comments, and concerns are welcome. Answers are guaranteed.

 

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