Joel Feldman: ‘Redskins Should Have Hope On Appeal’
All right, it’s time for a law school lesson.
As you probably heard, the United States Patent and Trademark Office stripped the Washington Redskins of six of their trademarks Wednesday, saying that the term is offensive to Native Americans. The Redskins will obviously appeal this decision, but how did this whole thing initially come about? Why now? Why not sooner?
“The United States Patent and Trademark Office is given exclusive jurisdiction to grant federal trademark and registrations,” trademark and copyright attorney Joel Feldman said on The MoJo Show. “And when there’s a dispute over whether or not a registration should be allowed, there is an administrative tribunal called the Trademark Trial and Appeal Board that determines who’s right and who’s wrong.
“So you file a trademark application and the application gets reviewed by an attorney who works at the trademark office, and the attorney says yay or nay,” Feldman continued. “If the attorney says nay and the person wants to fight (it), then they can appeal that to the Trademark Trial and Appeal Board.”
Of course, even if the attorney says yay, that doesn’t mean that the applicant is home free. If someone else thinks the trademark is too similar to an existing one – or if he or she thinks it’s disparaging – he or she can file an opposition.
That’s just the name of the game when it comes to trademarks.
This one, however, is different. Native Americans have opposed the term Redskins since the 1960s, which made Wednesday’s ruling all the more special. Granted, this same ruling was overturned in the 1990s, but there’s reason to believe it could stand up against appeal this time around.
“It’s definitely a big deal,” Feldman said. “This is going to a different court than it went to before. It’s the same level of court – it’s a district court – but it will go to a district court in a different location this time, so it will be a different judge.”
“Now, realistically speaking, the evidence that was used in this recent case was more or less the same evidence (as the case in 1992),” Feldman continued. “(That case) was reversed on a lack of evidence, and the evidence is the same, so I wouldn’t say it’s no big deal. There’s plenty of money to be spent, and different judges could have different opinions, but there is definitely a basis for the Washington Redskins to have some hope on appeal.”
And what do trademark experts think of this particular saga? Are they closely following it, or is it just another day at the trademark-law office?
“It’s an interesting question,” Feldman said. “From a trademark-law standpoint, this probably isn’t that substantial of a case. Trademarks are refused all the time as disparaging. So for trademark law, this probably isn’t a set of facts that’s going to change the way we practice trademark law, but it’s certainly very interesting from a human perspective. And for that, we’re always happy to see an issue like this on the front page.”