This summer, the United States Patent and Trademark Office (USPTO) cancelled the registrations of five trademarks belonging to the Washington Redskins, finding that they were disparaging to “Native Americans.”
This argument has been going on for some time. The first major attempt (that is visible on the USPTO’s site) to cancel these trademarks was filed in 1992, and was not resolved until 2009. In that attempt, those who sought to have the Redskins’ marks cancelled were successful at the USPTO’s Trademark Board, but the Redskins went to the D.C. Circuit Court, which reversed the decision.
The problem is that the D.C. Circuit Court resolved the issue based only on the defense of laches – that the people wanting to have the marks cancelled had waited too long to complain. The Court did not address whether the marks were disparaging.
So now we do it again, and this time on the merits…maybe. The Trademark Board has gone out of its way to justify its position in a 177-page Cancellation which is fine reading for trademark practitioners. It appears that they are putting a lot of weight into the idea that 30% of all Native Americans find the term offensive. The case is in the process of appeal (again) as of October 2, and the Trademark Office’s website reports the marks as “Cancellation Pending”. We’ll see.