Washington Redskins

For almost 30 years, the NFL’s Washington Redskins were involved in litigation over their team name. Now that the owners have capitulated, they face new challenges: a swarm of trademark squatters that have scooped up rights to likely replacements.  First, a little background.

The Washington Redskins have been using the team name since 1933 and have had registered trademarks beginning in 1967. In 1992, Native American activist Suzan Harjo and other plaintiffs filed a petition to cancel six trademark registrations owned by the Redskins’ parent company, Pro-Football, Inc., on the grounds that the name “Redskins” was offensive to Native Americans. They lost the case under the equitable defense of laches – essentially, the court held that the plaintiffs waited too long to bring the case.  

A later case, Blackhorse vs. Pro Football, Inc., resulted in the Redskins’ trademark briefly being cancelled by the USPTO. While the case was on appeal, the Supreme Court ruled in Matal v. Tam that potentially-disparaging trademarks (such as that of the Asian-American band “the Slants”) are a permissible exercise of free speech. The lawsuit was dropped and the Washington Redskins’ trademark (registration no. 5377352) remained registered.  See our previous article (and others) about Matal and the Redskins’ trademark disputes.

Three decades of litigation failed to persuade the Redskins to change their name, but a cultural movement did. After the killing of George Floyd, shareholders pressured Nike, FedEx, Pepsi, and other companies to end their relationships with the Redskins.  The companies in turn put pressure on the Redskins to change its name, with FedEx threatening to walk away from the agreement under which it pays tens of millions of dollars per year in stadium naming rights. The team announced on July 13, 2020, that it would change its name, and later announced that it would be called the “Washington Football Team” for the 2020-2021 season.

A possible reason for the delay in announcing a permanent team name is the need for the team to obtain the trademark rights. Enterprising individuals have already registered or applied for trademarks for potential team names. In fact, one person (Martin McCaulay) has already either registered or applied for 27 trademarks, including the Redtails, Red Wolves, Red-Tailed Hawks, Veterans, and Warriors. He sells clothing and goods on websites set up for each mark. After some questioned his motives, he tweeted an image of an e-mail in which he offered the trademarks to the NFL for free. 

Trademark applications have been filed by others for “Washington War Hogs”, “Washington Braves”, “Washington Freedom Fighters”, “Washington Redtails”, and even “Washington Radskins”. Obtaining a trademark registration is not an easy task; for example, the USPTO has suspended examination of Mr. McCaulay’s application for the “Washington Warriors” due to prior applications by others for the mark, which may also fail – because the NBA’s Golden State Warriors already own the “Warriors” mark for use on clothing. 

At some point, the NFL’s Washington Redskins – er, Washington Football Team, will either find a name that isn’t already a registered trademark, or else it will pay for the rights. With Forbes putting the team’s value at 3.4 billion dollars, price shouldn’t be a barrier. Then the team can focus on improving from being ranked 31st out of the 32 NFL teams.  That challenge may make three decades of litigation pale in comparison… 

— Joshua D. Waterston, Esq.