Over the past year or so, we’ve seen landmark shifts in sports. Not that long ago, these movements and actions seemed like long shots at best. An openly gay player suited up for an NBA team, another one was drafted by an NFL franchise. The Ed O’Bannon trial, which is playing out in court in Northern California, threatens the amateur model in college sports. A group of Northwestern players have voted on whether or not to unionize. The NFL settled a lawsuit, brought by former players, that claimed the league was negligent in its handling of concussions — though the amount of money the league ultimately doles out may change.
These are big moves. And now, finally, the easy one — the controversy with such a frustratingly common-sense solution that it should really never have been a controversy at all — got a nice win on Wednesday. If Daniel Snyder now doesn’t just give in and change the name of the Washington Redskins, a nickname that is clearly offensive to some segment of the American population, he will set an all-time record for ownership buffoonery. And if the other NFL owners, led by commissioner Roger Goodell — a man who has long taken pride in doing what he sees as the right thing — don’t squeeze Snyder hard enough so that he changes the name, they’re all officially a bunch of rich buffoons as well.
Goodell & Co. may put more pressure on Snyder, because Wednesday’s ruling by the U.S. Patent and Trademark Office canceling the Redskins’ federal trademark registrations could hit the owners where it hurts most: their wallets. Licensed merchandise creates revenue not only for the Redskins but also for all 32 NFL teams who share it. The ruling does not mean the Redskins legally have to change their name or stop selling Redskins merchandise. But the lack of federally registered trademark protections means counterfeiters selling T-shirts with the Redskins name could have more of a claim to cash that normally goes into the NFL revenue pie. “For the owners, this has gone from a moral to a financial issue,” says Warren Zola, sports-law expert at the Caroll School of Management at Boston College.
Practically, the ruling could challenge the NFL’s ability to enforce its trademark protection, says Christine Haight Farley, a trademark-law expert and professor at the American University Washington College of Law. If the ruling withstands appeal — and the Redskins are sure to appeal it — and a counterfeiter starts selling merchandise with the Redskins name, with a design that the patent office has deemed a canceled trademark, that person would likely receive a cease-and-desist letter claiming that while the trademark is unregistered, the Redskins have a common-law claim to the mark. The big question, says Farley, is, If the counterfeiter then challenged the Redskins claim in a federal court, would that court protect a trademark that another federal government entity has canceled and deemed “disparaging to Native Americans”? In some recent cases, Farley says, courts have not protected unregistered marks that have been denied registration under the trademark act. “A federal court may deny a remedy to a party who comes to court with unclean hands,” Farley says.
More important, really, is the timing and wording of the decision. The anti-Redskins movement has been boiling. In May, 50 U.S. Senators signed a letter asking the Redskins to consider changing the name. An effective anti-Redskins ad ran during the NBA Finals. And now the U.S. government has ruled that the term is indeed offensive. Last year, USA Today asked Snyder if he would consider changing the name it he lost the trademark lawsuit. “We’ll never change the name,” he said. “It’s that simple. NEVER — you can use caps.”
The government canceled the trademarks. It’s time for Snyder to cancel those caps.
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