By now you all are very much aware that United States Patent and Trademark Office cancelled the registration of the mark for the Washington Redskins. Like me, you probably have seen countless news stories and articles on the subject. But, unlike me, you probably did not watch the stories cringing as much as I did.
In my post last week, I talked about how words and word usage matters when it comes to Copyright law. Guess what? It matters when discussing Trademark law too. However, you would not know it by the less than stellar reporting that went on this past week.
Here are the Top 3 Biggest Trademark Offenses to the Washington Redskins Story:
1. It is the United States Patent and Trademark Office. That is the name.
I get that space is limited, especially when it comes to print media. I get that you only have 140 characters in order to get out your tweet to the masses. But, can you please just stop simply calling it the “Patent Office” when you report this news story? A patent and a trademark protect separate and distinct intellectual property rights. Let’s not confuse society any more than it has to be by leaving out the word “trademark” when talking about the entity that made the decision.
As one of many examples, our friends at CNN never even initially called the entity that cancelled the trademark by its correct name. As CNN, reported and started out in its full article HERE, “Wednesday’s decision by the U.S. Patent Office to repeal six federal trademarks of the Washington Redskins on the grounds that the name is “disparaging to Native Americans” is, of course, a victory for the Native American community and our allies. [emphasis added]” Please do not think I am picking on CNN. Conduct a search for the story and you will see that most articles within their titles state “Patent Office revokes Redskins Trademark,” or some version of this headline.
I imagine there are many folks sitting around saying, “The Washington Redskins lost their patent.” If you must shorten it, call it the USPTO or the Patent and Trademark Office, but only after using its full official name. It is an important branch of the federal government. It’s a huge story and could have larger ramifications for other sporting entities. Is it too much to ask to get the name correct?
2. The trademark registration has been cancelled, but the mark has not been cancelled.
Wait isn’t that the same thing? No, actually it is not. Cancellation of registration means the Redskins name is no longer protected by the federal government as an exclusive trademark. Registration means that the entity who owns the mark has the exclusive right to use it and to prevent others from using the mark. Registration with the USPTO also means the USPTO recognizes your rights in exclusivity, thus preventing others from using your mark.
The trademark office cannot force the Washington Redskins to change their name/logo and their use of the name. Cancellation of the registration does not mean the Washington Redskins must immediately quit using their mark, but they might want to, if their appeal is not successful. The USPTO is merely stating the sports group has no protection from the federal government. Meaning, you could (in theory) start making your own Washington Redskins gear and there is little that could be done about it on a federal level. However, a word of caution is necessary before you run out and start making your own memorabilia. Just because there is not federal protection does not mean that there might not be some common law protection over the trademark.
So, while it does represent some type of victory as far as a federal body of law recognizing the offensiveness of the phrase, it does not mean the group must or even will choose to immediately change their branding and logo. The value of a trademark lies in you, as the owner, being able to stop others from infringing on the goodwill created by your logo and mark. Without exclusivity, the Washington Redskins are open to counterfeit goods and their brand not being as strong.
3. The cancellation of the registration is NOT infringing on the team’s rights to free speech.
Please don’t get me wrong – I love the First Amendment. It’s my favorite Amendment with our right to say whatever we want and worship, or not, in any way we choose. It really is number one for a reason. However, the federal government cancelling the registration has absolutely nothing to do with infringing the freedom of speech for the owners of the Washington Redskins team. For all the talking head news programs looking for a “new” and “different twist,” please do not pick this one.
The First Amendment prohibits the government for making any law abridging freedom of speech. Here, the USPTO is not creating a law. As discussed above, the Washington Redskins are not being forced to change their logo/brand. In fact, even after a possibly unsuccessful appeal, they may very well keep their current trademark/logo. It would not be wise from a trademark standpoint, but in theory, they could keep it. The USPTO is merely saying they will not give it protection to the mark by way of cancelling the registration.
With these guidelines in mind, go forth and report the news in an un-cringe worthy manner. Your resident intellectual property attorney will thank you.
What do you think of the cancellation? Is society making too much of this? Take part in the Comments section below and Stay Tuned In!
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