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Redskins’ Trademark Registrations May Survive

Tuesday, January 19, 2016
By Thomas E. Kenney

There is an old adage in sports that sometimes a team wins even when it doesn't play. While the Redskins lost in the opening round of the playoffs, they recently scored a victory in their fight to retain their REDSKINS registered trademarks - in a court case in which they are not even a party.

In late December, the Federal Circuit Court of Appeals ruled on the trademark application filed by "The Slants" - a rock band whose members are Asian-Americans. The United States Patent and Trademark Office (“USPTO”) refused to register THE SLANTS trademark because it determined that the mark was disparaging to a substantial composite of Asian-Americans.  

However, the appeals court overruled the USPTO, holding that the statutory provision prohibiting registration of disparaging trademarks was an unconstitutional infringement of the applicants' first amendment rights.

Although the Redskins were not a party to The Slants' appeal, the decision could greatly assist the Redskins in their quest to salvage their own eponymous trademark registrations. The Redskins' marks were canceled by the USPTO pursuant to the same statutory provision invalidated by the appeals court in The Slants' case. Even though the Redskins' appeal is pending in a different appeals court - The Fourth Circuit - that court may well follow the ruling of Federal Circuit and determine that the USPTO’s cancellation of the REDSKINS trademark registrations was unconstitutional. Unquestionably the issue ultimately will be decided by the United States Supreme Court.  We will blog further updates when developments warrant.

The lawyers at Pierce & Mandell routinely represent clients seeking to secure trademark registration for themselves or to deny such protection to their competitors and potential competitors. We offer a free consultation to anyone interested in learning more about their trademark rights.

The Trademark Owner’s Dilemma - Vigorous Enforcement of Rights or Bullying by Thomas E. Kenney

Wednesday, May 27, 2015

An article entitled “The Trademark Owner’s Dilemma - Vigorous Enforcement of Rights or Bullying” by Thomas E. Kenney recently appeared in the Spring 2015 edition of Massachusetts Bar Association’s Complex Commercial Litigation Section Newsletter.





The League Championship of Branding

Friday, February 01, 2013
By Thomas E. Kenney

Sunday, of course, is the “Big Game”, or perhaps you prefer the “Professional Football Championship”.  I will not use the term “Super B---“ – I do not want to receive a nasty letter from the NFL’s trademark law firm.  That name is reserved for the use of the league and its “corporate partners”.

Putting aside the legality of the NFL’s “take-no-prisoners” approach to enforcing its trademark rights (Fair Use Doctrine anyone?) lies an important message about the power of brand and branding.  Despite popular misconceptions, the NFL is not really about football – or at least not about football as you and I understand the term.  The NFL is not about tackling or touchdowns, blocking or blitzes.  It is ultimately about one thing and one thing only – delivering viewers for the advertisers that pay the millions that drive the sport.  The competition on the field is merely a vehicle for getting eyeballs in front of tvs every Sunday.  

Sunday’s game, and the seemingly endless pre-game and post-game festivities, represents the league’s grand stage.  Advertisers pay millions per minute to hock their wares to the largest television audience of the year; most of the viewers care not who wins the game and many cannot name a single player on either team.  In fact, on Sunday there will not be a game as much as an event.  The biggest entertainers in the world perform as Americans celebrate from cost-to-coast with chicken wings, nachos and beer.  Many have called on this Sunday to be declared a national holiday so everyone can participate in the party.

And there lies the secret genius of the NFL.  Sunday’s game/event will be huge success – whether the game itself is competitive or decided by halftime.  The advertisements have been sold, the record viewership all but guaranteed, the league’s coffers once again bursting at the seams.  Don’t let the scoreboard fool you – the real winner on Sunday will be the NFL; thanks more to its relentless protection of its brand than anything that happens on the field.  

If you are interested in maximizing the value and power of your brand, please contact the Intellectual Property Law team at Pierce & Mandell. We work with our business clients to develop, screen, protect and enforce their intellectual property rights.

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