Redskins Trademark Registration Cancellation - doesn't mean the mark goes away

Image Keith Allison via CC 2.0

Image Keith Allison via CC 2.0

The Trademark Trial and Appeals Board (TTAB) cancellation of the Washington Redskins trademark registration does not mean the team has to stop using the trademark.  The TTAB lacks the statutory authority to stop the use of a trademark, even if the Board has the authority to cancel the trademark registration.

The team has already announced an appeal of the TTAB decision that the team's trademarks, including the word Redskins or the Native American image above, are disparaging. This is a historical repeat of 1999 when the team overcame a cancellation of the trademarks on the same disparagement grounds.

The TTAB decision was not unanimous.  Judge Bergsman dissented, meaning he disagreed with the other judges, stating the Board answered the wrong legal question. The actual question before the board was

a much narrower, legal question: whether the evidence made of record in this case establishes that the term “redskins” was disparaging to a substantial composite of Native Americans at the time each of the challenged registrations issued.

The dissent focuses on the fact the evidence submitted is not sufficient to show disparagement in the late 1960's and early 1970's.

By this dissent, I am not suggesting that the term “redskins” was not disparaging in 1967, 1974, 1978, and 1990 (the registration dates at issue). Rather, my conclusion is that the evidence petitioners put forth fails to show that it was.

This lack of evidence may just be the successful making of an appeal.

Here's a look at what other trademark lawyers have to say on the topic of cancellation.