Offensive Trademarks May Not Last for Long

The NFL’s Washington Redskins recently had a taste of how fragile a trademark can be, especially if there are grounds for cancellation.

offensive trademarksThe team will likely appeal the decision, but questions arise: Can they win? When and why are federal judges allowed to cancel offensive trademarks?

Redskins lose federal trademark

The Redskins franchise has, for some time, been embroiled in a two-pronged battle to defend its name, both legally and in the public eye. The term “redskin” has been deemed offensive to Native Americans by many, even though the Washington football team has explained that the name is meant to honor Native Americans, rather than disparage them. Regardless of the Redskins’ insistence that the team’s name represents a positive portrayal of Native Americans, backlash against it has persisted and the organization hasn’t fared much better in courtrooms.

On July, 8, 2015, a federal judge ruled to cancel the team’s trademark registration, because the Redskins name was deemed offensive to Native Americans. The legal reasoning for the cancelation all goes back to the Lanham Act, which is the main federal trademark statute of law in the United States. The section of the Lanham Act pertaining to trademark registration cancelations and rejections, §1052, was used in the attempt to cancel the Redskins trademark.

What the Lanham Act has to say about disparaging trademarks

This section of the act notes that any trademark that “comprises immoral, deceptive, or scandalous matter” or “may disparage” certain individuals may be refused registration. This isn’t the only reason a trademark may be rejected, but it was good enough to lead a judge to cancel the Redskins’ trademark. The Washington football team is one of a number of sports organizations whose names reference Native Americans, and it remains to be seen whether “redskin” is the only one of those words deemed disparaging by the court.

It also isn’t the only reason a trademark registration may be refused. Sports teams’ and other organizations’ trademark registrations may be refused for a number of reasons. For example, if they contain the flag, coat of arms or any other insignia of the U.S., if they include the “name, portrait or signature” of any living person without his or her consent and if they consist of, or contain a mark that has already been registered.

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Anthony R. Caruso is a business transactional attorney in New York and New Jersey with experience in structuring, negotiation and completion of legal deals involving business, entrepreneurs, athletes and performers.

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