Another hurdle in the Washington Redskins’ fight for trademark protection

Published 25 September 2014

In June, a group of five Native Americans successfully challenged the Washington Redskins’ trademark as disparaging.   Now, the five Native Americans asked a federal judge to dismiss the team’s counter-lawsuit to reverse the U.S. Patent and Trademark Office’s (USPTO) decision.1 

The Native Americans filed a motion2 in U.S. District Court arguing that the team does not have a legal right to sue the five Native Americans to reverse the USPTO’s ruling.

After the USPTO ruled in favor of the Native Americans, the Washington Redskins organization sued3 the five Native Americans arguing that “Redskins” is not offensive and that the USPTO erred in canceling the six Redskins trademarks.

The Native Americans now argue4 that they are not “parties in interest” who can be sued in a trademark case. They contend that they “stand to gain nothing or lose nothing.” The Redskins organization simply sued the wrong party and should of filed its challenge against the USPTO’s Trademark Trial and Appeal Board itself.

Before a federal lawsuit is heard, the judge must conclude that an actual “case or controversy” exists between the parties. A “controversy” exists when the parties to a case have an interest in the outcome. Here, the Native Americans argue that they have no legal or economic interest in wrestling control of the Redskins trademark for themselves. The Native Americans claim that a “controversy” only exists between the team and the USPTO, which the Redskins accuse of violating First Amendment and due process rights.

Interestingly enough, the Redskins decision not to appeal the USPTO decision to the U.S. Court of Appeals was presumably because that Court already rejected the team’s constitutional arguments in preceding case law.

If the District Court grants the Native Americans’ motion, the Redskins may be out of options to protect their trademark. A USPTO ruling is only appealable 60 days after the decision. Since the Redskins’ trademark revocation came down in June, the team exceeded the 60-day period to appeal. Although the revocation does not prohibit the team from using their name and logo, it does strip away any protection they have in the trademark from third-party use.

 

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