Q&A with Phillip Free
Cancellation doesn’t prevent
use of Redskins trademark
Q: What do you expect will be the next steps from the Redskins organization?
A: Another group tried to cancel the trademark in 1999 and was unsuccessful. In that case, on appeal to the district court, the judge ruled the trademark couldn’t be canceled because of laches (in essence, the group waited too long to challenge the mark). If the trademark’s owners take this up on appeal again, I suspect they will argue the same thing because even more time has passed in this case.
Q: What has changed since this trademark was approved in 1967?
A: The political climate surrounding this issue has picked up steam. It will be interesting to see whether we see a different outcome this time. Sometimes it takes time on these sorts of issues for the challenging party to “punch through” and have success, as we've seen with gay marriage.
Q: What do you think the outcome of this case will be?
A: This will be one to watch. I don’t think the trademark was adopted as an intentionally offensive term, but clearly it is offensive to a portion of Native Americans. In fact, I have family members supporting the fight against the trademark who find the term very offensive. The challengers likely will argue the trademark has become increasingly offensive over time and that laches shouldn’t apply here because “critical mass” of opinion only recently has been reached about the nature of the trademark. This might give the court the rationale it needs to uphold the trademark’s cancellation.
Q: Would the government be ripe for a lawsuit by the Redskins to recoup the expenses they will face to change their product line? For years the trademark mass produced products with the Redskins name that the patent office approved.
A: The cancellation of the trademark doesn’t necessarily mean that the owners have to stop using it, although they may choose to do so. The ruling only means that the trademark registration has been canceled. The owner would no longer have the benefits the federal registration provides. There is no order that the owner can’t continue using the trademark on its products and as the team logo. Enforcement of the trademark against trademark infringers, however, may become problematic if it is deemed to be unprotected because of its offensive nature, although a state court judge could see things differently under state law governing unregistered trademarks. You could see an increase of counterfeit goods on the market if the trademark continues in use after cancellation of the mark. The government is likely immune from any type of suit for damages the trademark’s owner may bring.
PAULA BURKES, BUSINESS WRITER