By now, you’ve no doubt heard the news that  yesterday (June 18, 2014), the Trademark Trial and  Appeal Board (TTAB), an administrative body of the  U.S. Patent and Trademark Office (USPTO) cancelled  the Washington NFL team’s registered trademarks for  “Redskins.” The decision will not take effect until the  team owner, Dan Snyder, has exhausted his appeal  rights. But what does this mean from a practical  perspective for the team, for Mr. Snyder and for  people who want to use the name to make their own  t-shirts?   

Q. Does this mean the team has to stop calling  itself the “Redskins”? 

A. NO. The USPTO and the TTAB cannot use a  cancellation decision to make a trademark owner stop  using its trademark. Assuming the ruling is upheld on  appeal, the decision only rescinds the team’s rights to  certain benefits that come with federal trademark  registration, such as enlisting U.S. Customs and  Border Patrol Service to stop importation of infringing  or counterfeit merchandise, the right to use the  federal registration ® symbol and certain  presumptions which provide additional protection of a  trademark in court. The team can keep calling itself  the “Redskins” and using the trademark on all the  things it usually does (merchandise, jerseys, etc.).   

Q. So, I can sell “Redskins” jerseys now without  getting sued? 

A. Probably not. The cancellation won’t take effect  until the appeals have been heard, and even then, the  team still has “common law” trademarks that can be  enforced against infringers in courts. Common law  trademark rights are established by using a name in  commerce, in connection with your goods or services,  before anyone else. The team still has these rights,  and can enforce them under either state trademark  laws or possibly federal false advertising laws and  other similar statutes. Mr. Snyder seems to like going  to court, so if you do start selling “Redskins” jerseys,  prepare to be sued. 

Q. Hasn’t the team had the trademark “Redskins”  for a really long time? How can the government  decide now to cancel it? 

A. Yes, under federal statute. Under the 1946  amendments to the trademark statutes, there are  certain circumstances under which a federal  trademark registration can be cancelled at any time,  no matter when it was registered. One of the  circumstances is if it is found (based on the evidence)  that a term was disparaging of a person, or brought  them into “contempt or disrepute” -- when it was  registered. The TTAB determined that the term  “Redskins” was disparaging to Native Americans,  even when the first registrations were granted to the  team in 1967.   

Q. Hasn’t the team been down this path before,  and won? 

A. Yes and no. In 1992, a group of Native  Americans filed to have the same marks cancelled on  the same grounds, and the TTAB agreed that they  were disparaging. However, that decision was  overturned, after going back and forth on appeal. The  last appellate decision found that the group who sued  had waited too long to assert their rights under the  doctrine of “laches.” That is, if the group was so  offended by the mark, the court said, they should  have sued the team as soon as they were legally able  to do so, at age 18 or soon thereafter. The lower  appeal court had said the same, but also that it didn’t  think there was enough evidence to support the  decision that the term was disparaging back when the  marks were registered. However, because the higher  appeals court didn’t address the disparagement  question, it’s still open for consideration with a  younger group of petitioners.   

Q. What happens now? 

A. The team has said they will appeal the TTAB  decision. They can keep using the mark regardless  of this decision, although they may find the court of  public opinion is swinging against them. If they want  to maintain federal registrations, they can either  appeal this decision to the Federal Circuit or file a  new civil suit. Their federal registration will continue  in force until those appeals are exhausted. The last  one took about 7 years to work its way through the  various levels of appeals.