An examining attorney for the United States Patent and Trademark Office has rejected an application to trademark “Washington Redskin Potatoes,” in part because the name could be seen as derogatory to Native Americans. That’s a decision that could foreshadow trouble for the Washington Redskins football team, as the Patent and Trademark Office is currently considering a case challenging the trademark protection granted to the team’s controversial name.
“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,” the decision, handed down on March 17, says. It concludes: “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 examining attorney’s decision cites dictionary definitions of the word “Redskins” that say it is “usually offensive” or “offensive slang,” and it also notes that groups like the National Congress of American Indians and the Oneida Indian Nation regard the word as a disparaging slur.
That it would be disparaging is not the only rationale for rejection — the examining attorney also cited the potential for a false connection to the Washington Redskins football team and confusion among consumers about whether the product is linked to the franchise — but it is the most significant given that the agency is currently hearing a case that argues the trademark for the team’s name violates the same law prohibiting the trademarking of disparaging terms.
The PTO has approved past marks for red-skinned potatoes and peanuts, but the application doesn’t appear to have anything to do with actual potatoes. The rejection notes that the applicant applied for the trademark to market “entertainment services” and all sorts of merchandise, from clothing to trading cards. That would only add to the confusion between the existing mark for the football team and this one, the rejection says, as “there is no evidence in the record of any connection between the Washington Redskins football team and the goods and/or services to be sold by applicant.” It’s hard to tell if it’s a serious trademark attempt or an attempt to spoof the team — many people have suggested during the name controversy that the Redskins should change their name to the “Redskin Potatoes” or their logo to a redskin potato to avoid offending people. Nevertheless, the PTO rejected the claim, and the connection to the football team and the name it uses (and thus, to Native Americans) is part of the reason why.
Examining attorneys review original applications, so this isn’t necessarily an indication of how the agency will rule in the case against the football team, which involves an existing trademark. But the Patent and Trademark Office’s Trademark Trials and Appeals Board already rejected the 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.
Invalidating the trademark protection is the most likely way the name will change. Without the trademark, anyone who wanted to sell merchandise related to the team could use the name, and though Redskins owner Daniel Snyder has said he would not change the name even if he loses the case, attorneys for the NFL and team argued in a previous case that losing it would cause “every imaginable loss you can think of.” Because the NFL splits merchandising revenue evenly among its 32 teams, that would cause losses throughout the league, and it’s hard to see NFL owners standing for that simply to let Snyder keep the name.
The Trademark Trials and Appeals Board heard arguments in the current case, which argues that the trademark protection given to the Redskins name violates the same law prohibiting the trademarking of disparaging terms, 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.
The current case, led by plaintiff Amanda Blackhorse, is similar to the Harjo case but seeks to fix the technicality that caused the decision to be overturned.
This is at least the twelfth time an examining attorney has rejected use of the word “redskins” in a trademark application since Harjo and other Native Americans first challenged the team’s trademark in 1992. An examining attorney rejected a similar application for “Redskins Hog Rinds” in December.
Note: We updated this post to make it clearer that the application wasn’t actually for potatoes or potato-related products.