A bad decision that ignores the likely application of the First Amendment, seizing valuable intellectual property without compensation essentially because the government disapproves of its content. [Ilya Shapiro, USA Today, earlier on Redskins trademark battle, another pending case on “disparaging” trademarks and more]
8 Comments
If no other organizations end up using the name “Redskins” then I don’t see how the football team will suffer from loss of the trademark.
But if other organizations do end up using the name – then won’t the trademark ruling only have enabled its wider use ?
So what’s the point of the ruling anyway? Other than, I mean, as an empty gesture on the level of political grandstanding?
John,
I would think that one result of the ruling would be that people could now make knock off Redskin products without fear of trademark infringement.
Want a Redskin helmet that isn’t $300 from the Redskin shop? No problem. Want a jersy that isn’t $100? No problem. I can print them in my basement. I can sell them in my store without paying the ‘Skins anything.
Players get a big chunk of the money from the sales of trademarked items. It will be interesting to see what the players will do now that the ruling will hurt their pockets.
“Players get a big chunk of the money from the sales of trademarked items. It will be interesting to see what the players will do now that the ruling will hurt their pockets.”
1. Players only get money for player specific items like jersys, they wouldn’t get squat for a helmet.
2. Players have little to no say in the team name. If the owner remains intransigent about changing the name, the players can’t do squat about it other than refuse to play which will cost them even more money than knockoff merchandise.
3. Considering all the other pressure put on the Redskins owner to change the name, I give this at best a 50/50 chance of having any impact.
MattS,
According to the CBA, the players get two cracks at the money from sales. The first is in the calculation of the salary cap. Any money generated from any NFL Licensed product (including helmets) go into that calculation of the salary cap. Considering that you are looking at a major devaluation of 1/32 of the league’s control of a trademark, I think the players might have a bone to pick. (And for the record, the teams own the logo, but NFL Properties LLC controls on what the logos can be placed.)
Secondly, a percentage of the money from merchandise goes into a pool which is then divided up amongst the players. So even though Russell Wilson’s jersey sold the most last year, his “cut” is the same as lineman.
There is a bottom line hit to the players when the trademark is no longer protected.
I didn’t say they wouldn’t take any hit at all from the loss of trade mark, however if you think the players will take a bigger hit than the team itself, you are nuts.
Also, there is absolutely nothing that the players can do about the team name except refuse to play, which would be a hell of a lot bigger hit than the merchandising.
gitcarver, I agree. In fact I think that’s what I said.
I don’t get this at all. Were trademarks ever judged on “offensiveness?”
If I want to trademark a business name to protect someone else in the same “trade” from using that name, what difference is it to the Government if I call it, say “Tasty Donuts”, or “‘Shove some more crap into your pieholes, you fat pig’ Donuts” (for instance).
Where does the Federal Government USPTO office get to weigh in on the appropriateness of a name for a business? Isn’t it just their job to provide a registration?
Walter, you have your amendments all mixed up! You say:
A bad decision that ignores the likely application of the First Amendment, seizing valuable intellectual property without compensation essentially because the government disapproves of its content.
As for First Amendment issues, this is commercial speech (even though in 1946 SCOTUS plucked the Commercial Speech Doctrine out of thin air).
In Ohralik v. Ohio State Bar Ass’n (1978) the Court stated:
” We have not discarded the “common-sense” distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.”
The Fifth Amendment says:
No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
This was not a deprivation without due process. The case started out in the Trademark Trial and Appeal Board and was affirmed by a judicial order of a US District Court, so apparently there was due process of law, even though I believe that the decision is wrong. The Redskin’s remedy is to appeal it.
The Trademark Trial and Appeal Board, a branch of the USPTO held in June 2014 that “As explained below, we decide, based on the evidence properly before us, that these registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered, in violation of Section 2(a) of the Trademark Act of 1946, 15 U.S.C. § 1052(a). This decision concerns only the statutory right to
registration under Section 2(a). We lack statutory authority to issue rulings concerning the right to use trademarks.See, e.g., In re Franklin Press, Inc., 597 F.2d 270, 201 USPQ 662, 664 (CCPA 1979). https://www.washingtonpost.com/apps/g/page/local/redskins-trademark-order/1105/
The 70 page court order of Gerald Bruce Lee, USDJ may be found here: http://pdfserver.amlaw.com/nlj/ProFootball%20Blackhorse%20opinion.pdf
15 USC 1052(a) is as follows:
“No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—
(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; …”
We will see how the 4th Circuit and possibly SCOTUS handles this.