Things to think about with regard to yesterday’s TTAB decision cancelling the REDSKINS registrations:
1. The TTAB proceeding is not the main event.
The interplay between First Amendment protections and other laws leads to, uh, uneven results. A federal court can enjoin use of the mark WASHINGTON LOUIS VUITTONS, as infringing speech can be regulated. A court could possibly enjoin the use of WASHINGTON LET’S KILL ALL THE REDSKINS, to the extent it constitutes a true threat to commit harm, can be regulated. But a federal court can’t enjoin the use of merely offensive speech, such as WASHINGTON REDSKINS.
So Blackhorse v Pro-Football, like Harjo before it, cannot be aimed at the center of the target. It may be procedurally interesting, and symbolically significant, but it doesn’t affect use of the mark. So don’t get all that worked up about this decision.
2. The cancellation of the registrations would be a factor, but not a determinative one
First, if every novel issue in this proceeding gets appealed, we will not see finality of the cancellation for years.
Second, it is uncertain how a federal court would enforce the remaining common law rights. Of course certain Lanham Act rights would no longer be available (certain counterfeiting remedies, for example).
Also, some licensees require licensors to maintain registered rights. So interpreting those clauses will be fun, here.
An interesting aspect here (if the registrations are ultimately cancelled) is the increasing importance of registrations, when asking intermediaries to enforce tademark rights. You need a registration when utilizing the various dispute resolution policies of a Google, Amazon, eBay, ICANN, etc.
So cancellation of the regs would be an expensive nuisance.
3. How this dispute ultimately resolved
Unless the owner of the team has a vision on the road to Damascus, this ends when the NFL says to him: ‘enough’. When does that happen? Bear in mind that certain NFL revenue streams are shared equally by the teams so certain reductions in those streams are shared equally. So this ends when it costs the NFL enough money to outweigh whatever point it thinks its making by ‘standing firm.’. When you email Bob Raskopf at Quinn Emmanuel ([email protected]) and say:
I know you’re doing your job, so this isn’t directed at you personally. Please pass this information along to your client:
When I see that goods or services are ‘the official’ whatever of the NFL, I don’t buy them.
I told my kids they can’t buy NFL licensed merchandise (and besides, Tim Duncan and the Spurs are better role models).
When we watch NFL games, we DVR them and skip through the commercials.
So without speaking here to Washington’s owners beliefs in his position, he should include this in his calculus.
Your name here
[NY Jets fan throw in a P.S. here about their annoyance with the Jets passing over Manziel in the draft]