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Why government OKs gay slur trademark but not ‘Redskins’

A poll by the Washington Post was found to be "unethical" by a journalist for Indian Country Today. (AP)

The Washington Redskins had six federal trademark registrations canceled Wednesday by the Trademark Trial and Appeal Board, and there’s a lot of confusion over the impact this will have on the team and whether it can still use the name it has had for more than 80 years.

This is a victory for Native Americans and for people who find the team name offensive, derogatory or racist. But longtime Seattle trademark attorney and University of Washington law professor Michael Atkins said this ruling has little impact on the team’s bottom line.

“The football team can still sell jerseys and memorabilia with its logo and with its name,” he said. “It just loses the expanded rights it had enjoyed through its federal registrations.”

Under U.S. trademark law, you don’t need those federal registrations to have trademark protections, especially for a team that has been using the brand for eight decades. All a federal registration does is give the Redskins the presumption of exclusivity to the courts if someone starts using the Redskins name or logo, and the Redskins sue to prevent it. The Redskins would now have to prove they have exclusivity.

Atkins said the Redskins can still go after people who try to use its name or logo. That has not changed with this ruling but the team would risk the courts siding the same way as the appeal board.

Atkins said it’s important to realize that trademark law is a living thing. It is subject to public opinion and changing attitudes. What might not be offensive today could be tomorrow.

“Today, Redskins is insulting to Native Americans, and therefore it’s completely inappropriate for the United States government to credit the owner of that mark with all of the benefits of a federal trademark registration,” he said.

So the question becomes, what’s to stop this board from finding the Starbucks logo offensive to women or any other group finding a company name offensive years from now?

“If the definition to the general group of consumers in the United States is scandalous, immoral, insulting or degrading in some way, that’s when courts should enforce the change in meaning,” Atkins said.

The threshold can be a sort of moving target. Attitudes and feelings change over time as well as trademark law rulings. Companies need to be careful when choosing their names or logos and be thinking long-term when they do it.

Atkins used the example of the lesbian motorcycle club “Dykes on Bikes.” Its name was challenged because the word dyke was traditionally used as a slur and considered demeaning and derogatory.

But the club proved to the courts that the meaning had changed in the gay community and was now considered a word of empowerment and strength. The trademark court agreed, and the club name now has trademark registration protection.

“This is not the end of it, by any means,” Seed I.P. Law Group partner Kevin Costanza said. “It’s going to be a long time before, at least, the Redskins situation is resolved.”

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