Last month, an examining attorney for the United States Patent and Trademark Office (USPTO) has rejected a Washington State potato company’s application to trademark “Washington Redskin Potatoes,” in part because the name could be seen as derogatory to Native Americans. The ruling could mean trouble for the Washington Redskins football team, as the USPTO is currently considering a case challenging the trademark protection granted to the football team’s controversial name.Importantly, the potato company was not looking to use the name to trademark its particular brand of red-skinned potatoes. The USPTO has previously approved past marks for red-skinned potatoes and even red-skinned peanuts, but because the application was to market “entertainment services” and all sorts of merchandise, from clothing to trading cards, the USPTO found that in that context “red skin” is a derogatory term.
The examiner stated “Registration is refused because the applied-for mark includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs, or national symbols. Given that ‘REDSKIN’ in the mark is a derogatory slang term that refers to, and is considered offensive by, American Indians, registration of the applied-for mark must be refused” under the Trademark Act, a 1946 law that prohibits the trademarking of offensive or derogatory terms.
The examiner listed various dictionary definitions for the term and also cited the USPTO’s prior rejection of the football team’s trademark in 1999, a result of a case brought against the name by activist Suzan Shown Harjo. That ruling found the name in violation of the 1946 law, though a federal judge overturned the decision in 2003 due to a legal technicality, allowing the team to keep its trademark protection. The examiner in the potato case also found that it may cause confusion between the potato brand and the football brand.
A new case was brought by activist Amanda Blackhorse to try and remedy the errors that caused the reversal of the first case. In the Harjo case, the court held: “There is no evidence in the record that addresses whether the use of the term “redskin(s)” in the context of a football team and related entertainment services would be viewed by a substantial composite of Native Americans, in the relevant time frame, as disparaging.” Presumably, Ms. Blackhorse has now collected sufficient statistical evidence to establish that most Native Americans find the term “redskin” offensive when use in this context. If she has corrected the reasons the Harjo case was overturned, this potato ruling would establish that the term “red skin” is offensive and derogatory when used outside the context of an actual red-skinned food product
The Blackhorse case was heard by the Trademark Trials and Appeals Board in March 2013. There is no set timetable for a ruling, though it is expected soon. If the Redskins lose, they will certainly appeal as they did when they lost the Harjo case in 1999. Owner Dan Snyder has vowed to keep the name even if he loses the right to own the trademark in it. Of course, without trademark protection, any Tom, Dick and Harry could then make and sell “Washington Redskin” merchandise. I think other NFL owners (who all share in a cut of merchandising from all the teams) would have something to say about Mr. Snyder’s insistence on using a non-trademarkeable name for his team.