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Fumbled Patent: Is It Just A Matter Of Business?


I'm Audie Cornish. This is TELL ME MORE from NPR News. Michel Martin is away. So it looks like we can all start selling our homemade Redskins gear on the Internet. Anybody got requests? That was one of the many joking reactions from Twitter users yesterday - shout out to Josh Katzowitz - about the decision to cancel the Washington NFL team's trademark registration. The ruling came down from the U.S. Patent and Trademark Office, which said the trademark registration the team has had on that name since 1967 was disparaging to Native Americans. Lawyers for the team say they will definitely appeal. But given the political pressure on the team to drop the name, we wanted to know just how important this latest legal twist is. So we've called upon Professor Gabriel Feldman. He's director of the sports law program at Tulane University. And he joins us from member station WWNO in New Orleans. Welcome to the program.

GABRIEL FELDMAN: Thank you for having me on.

CORNISH: So first, clarify for us - I understand this was a rejection of the trademark on the name Redskins, not the logo. And if the decision is upheld, right, if Washington, say, loses its appeal, would they be able to stop people from selling their own team merchandise?

FELDMAN: They might. That's still a bit of an open question. And the ruling was with respect to the Redskin name, but also to - with respect to two different logos, not all of the logos they used. So there are some logos in there. But if this gets upheld on appeal - and remember, back in 2003, District Court reversed a very similar finding of the board - but if it's upheld on appeal, this doesn't mean that the team can't use the name. But what it does mean is it's more difficult for them to prevent other people from using the name.

CORNISH: So they'd have a tough time...

FELDMAN: But it's not just federal trademark law....

CORNISH: ...In terms of legal recourse?

FELDMAN: Yeah. I mean, beyond federal trademark law, there's also common law rights and state law rights that would allow the Redskins - or the team - to enforce exclusivity over the name. It's more difficult to do it and it's more expensive to do it, but it's still possible. So this doesn't mean the end of exclusivity. This doesn't mean that all of a sudden, everyone can just start making their own Redskins apparel. I don't think this means that Adidas and Reebok are going to pop up and start making that apparel because of, I think, pressure from the league. So it's certainly a hit to the Washington team if this goes forward, if this is affirmed on appeal. But it doesn't mean, right now at least, the end of the name.

CORNISH: All right. So given what you just said, how significant is this decision by the U.S. Patent and Trademark Office? Obviously they've been going back and forth with this office for a while.

FELDMAN: It's significant because it's just yet another ruling from a board, from an official government agency, saying that this is an offensive term to Native Americans. I think it does add to the political pressure that has been growing. The question is will it be enough to force Daniel Snyder them to change the name of the team? Will it be enough to force the other 31 NFL owners and the commissioner to say you have to change the name of the team, or to try to pressure them to change the name of the team? Will it cause fans or players or sponsors to turn on the team? I think it's going to take something along those lines to put economic pressure on the team to change the name. I don't think this by itself will force the change.

CORNISH: And for those of us who aren't familiar with the legal arguments here, does this in any way raise a First Amendment issue?

FELDMAN: No, it doesn't. There's no First Amendment here because the issue here - this is a question of just whether this is going to receive protection from the trademark board and registration, which will allow them to enforce exclusivity. This is actually saying that, in essence, more people can use the term. So it's actually in some ways encouraging others to use the term, not restricting people from using the term.

CORNISH: Let's take a step back for a minute. How important is the trademark business for any given pro sports team?

FELDMAN: Well, the interesting thing about the NFL is we have 32 teams, they're interrelated, they depend on each other to create the NFL. And they share, almost equally, the licensing revenue that comes from sale of their trademarks. So the 32 teams, minus really the Dallas Cowboys, share in the - it's usually about $3 billion a year. And so if there is a negative hit economically because this term is now deemed offensive and fans will stop buying the apparel, that not only hurts the Redskins, it hurts the other 31 NFL teams. But compared to the television deals, this is a relatively small amount of money. So no one's going to go out of business in the NFL if they sell less apparel. But it could have somewhat of an impact, both on the Redskins and the league and the 31 other teams.

CORNISH: Going even broader, if you hold the trademark right now for, say, the Florida State Seminoles or the Atlanta Braves or the Kansas City Chiefs, how closely are you watching this?

FELDMAN: They've been watching this all along. And I think it's, again, probably more about the political and public pressure, and the economic pressure. Because this legal ruling, although significant and expensive - and it's expensive to litigate it, it's expensive to go on appeal - it will then be more expensive to enforce their rights, I think the question is still will fans turn on them, will sponsors turn on them, will the conference, will the league, will the NCAA turn on them? That just makes it economically unviable to continue using the term.

CORNISH: Now, the Washington team has been going back and forth with the U.S. Patent and Trademark Office, as you've said. And I read that since, like, the early 90s, the office has actually rejected applications to use the Redskins' name in other places. So what are the chances of success for the Washington Redskins' appeal?

FELDMAN: Well, it's a great question. And it was the same question we had in 2003, when the District Court reversed the trademark board finding then. There are some different arguments here. And the real question's going to be whether the District Court is convinced that the plaintiffs brought forward evidence to show a substantial composite of Native Americans are offended or disparaged by the term. And we had two members of the trademark board find that it was sufficient evidence, one that found that it didn't. And then we'll see what a District Court judge says. But it's impossible to predict how that ruling will come down.

CORNISH: Give us a little background in the time we have left about the folks who have brought this most recent case.

FELDMAN: Well, what's interesting about this most recent case is one of the reasons the original case, brought back in 1992 by the Harjo class, was rejected was because the District Court, and part, one of the board, found that they waited too long to bring the claim. And so this new group was formed, in part, to represent a younger class of plaintiffs that didn't delay, that didn't wait because they were too young to wait. They could not have brought the claim earlier. So in many respects, it represents very similar arguments, similar claims as the first class, but as a younger class to avoid that delay argument.

CORNISH: Gabriel Feldman, he's an associate professor of law and the director of the sports law program at Tulane University Law school. Thanks so much for explaining it to us.

FELDMAN: My pleasure. Thanks for having me on.

(MUSIC) Transcript provided by NPR, Copyright NPR.

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