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Redskins name controversy heats up with federal cancellation of trademark

U.S. Patent Office deems name disparaging to Native Americans

By Childs Walker

The Baltimore Sun

5:58 PM EDT, June 18, 2014

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Though the Washington Redskins have faced down past legal challenges to their controversial name, the NFL team's defiant battle took a new twist Wednesday against a backdrop of growing political opposition.

Efforts to force a change of the Redskins nickname gained momentum when the U.S. Patent Office canceled the team's trademark on its name, terming it "disparaging of Native Americans."

The effect of the 2-1 ruling is symbolic for the time being, because the Redskins can retain their trademark while appealing the decision. But it could ultimately undermine the team's ability to prevent outside parties from using the name without permission — for merchandise or other commercial ventures. Even if the ruling stands, the Redskins would not be forced to change their name.

The controversy has intensified over the last year, with Redskins owner Daniel Snyder adamantly saying he will not change the name despite being urged by powerful lawmakers, including President Barack Obama.

U.S. Senate Majority Leader Harry Reid, a Nevada Democrat, has been one of the sharpest critics.  “Daniel Snyder may be the last person in the world to realize this, but it’s just a matter of time until he is forced to do the right thing and change the name,” Reid said Wednesday on the Senate floor.

Snyder did not respond to questions from reporters at the team's training facility in Ashburn, Va., on Wednesday morning.

The Redskins faced a similar ruling in 1999, but it was overturned in 2003 when a federal appeals judge said the plaintiffs had waited too many years to file the complaint. Wednesday's decision came in response to a 2006 complaint filed by a group of five younger Native Americans.

Amanda Blackhorse, one of the plaintiffs, called it "a great victory for Native Americans and for all Americans."

"I hope this ruling brings us a step closer to that inevitable day when the name of the Washington football team will be changed," she said in a statement.

Alfred W. Putnam Jr., chairman of Drinker Biddle & Reath LLP, the law firm that filed the case, called the decision a "milestone victory that will serve as an historic precedent."

But the Redskins downplayed the ruling as a repeat of the earlier, unsuccessful case.

"We are confident we will prevail once again, and that the Trademark Trial and Appeal Board's divided ruling will be overturned on appeal," said Bob Raskopf, an attorney for the team. "This case is no different than an earlier case, where the board canceled the Redskins' trademark registrations, and where a federal district court disagreed and reversed the board."

Raskopf pointed to several lines from the lone dissenting opinion on Wednesday's decision, in which board member Marc Bergsman questioned the plaintiffs' evidence of damage to the Native American community.

"The evidence in the current claim is virtually identical to the evidence a federal judge decided was insufficient more than 10 years ago," Raskopf said. "We expect the same ultimate outcome here."

But there are several reasons to think the case might not play out the same way, said Will Hubbard, co-director of the intellectual property program at the University of Baltimore School of Law.

Hubbard said the case is less likely to collapse on procedural grounds than the 1999 version. "It appears they won't have the same problem, because they've crafted the case more effectively," he said.

That means the Redskins would more likely have to win an appeal by arguing the plaintiffs have presented insufficient evidence of the name's power to offend.

"They will try to argue that these are isolated examples and not reflective of a larger consensus," Hubbard said. "The problem for the Redskins is there seems to be a fairly substantial amount of evidence here."

Even if they lose an appeal, however, the Redskins would have several legal avenues to continue operating under the same name. Most of their logos, for example, are protected by separate copyright laws that actually carry harsher penalties for illicit merchandisers. They could also use state trademark laws to protect their intellectual property.

"If they want to continue operating the same way for awhile, there are many claims they can make," Hubbard said. "I don't expect to see a sudden proliferation of knock-off shirts or anything like that."

But he said the Redskins could see the ruling as a chance to move forward on a difficult change they might ultimately make regardless.

"That's a business decision," he said. "I don't think it's a legal one."

Manish Tripathi, an Emory University marketing professor, estimates the controversial name costs the Redskins at least $1.6 million a year, based on studies he's conducted with research partner Mike Lewis. The name has also generated escalating negativity toward the franchise on social media, he said.

Tripathi concedes the losses are small potatoes for a franchise that generates almost $400 million a year in revenue.

"But this is just another data point that supports the growing negative feeling about the name," he said of the trademark ruling. "No one thing is going to break the camel's back. But if things keep bubbling up, we could see a tipping point."

The recent groundswell includes Obama's remarks to the Associated Press last year in which the president said, "I don't know whether our attachment to a particular name should override the real legitimate concerns that people have about these things."

Last month, 50 U.S. senators, including Reid, signed a letter asking NFL commissioner Roger Goodell to support a name change for the Redskins. Last week, a California-based Native American group aired a 60-second advertisement denouncing the nickname in a number of major television markets during Game 3 of the NBA Finals.

Tripathi grew up in Silver Spring and remains a Redskins fan. "But I'd like them to change it," he said. "I recognize that the name is wrong."

Several NFL fans in the Baltimore area said they expect the name to change some day, even if they don't feel strongly about it.

Mike McLeod, 40, applauded the trademark decision over an afternoon beer in Federal Hill. "It kind of forces Daniel Snyder," he said. "I think it'll have an effect because it'll affect the bottom line. That's all he's interested in."

"At the end of the day, if this is really offending people, they should change it," said 27-year-old Jess Aga, a physical therapist who lives near Annapolis. "But they're not trying to offend anybody. I think there are bigger issues."

Others in the sports marketing world see the Redskins suffering less from the controversy.

"The Redskins have a very old and loyal fan base and many of them would be outraged if the name changed," said John Maroon, president of Columbia-based Maroon PR and a former spokesman for the Redskins. "From a business perspective, if they did change the name, they would certainly lose a lot of their existing, long-standing fans and face their wrath but would gain a handful of new fans."

Maroon said the greatest impetus for change would be a more sustained outcry from Native Americans.

"It seems to me, at this point, we are yet to hear from the group that is supposed to be outraged, the Native American community, in a strong and concerted way," he said.

Even if the Redskins suffered a drop in marketability, the impact would be mitigated because the NFL's 32 teams share merchandising revenues and, more importantly, the league's multi-billion-dollar television deal equally.

The Redskins still perennially rank among the NFL's top five in home attendance and are worth $1.7 billion, third in the league according to Forbes.

childs.walker@baltsun.com

twitter.com/childswalker

Baltimore Sun reporter Trevor Hass contributed to this article.