What Impact on the General Consuming Public Does the TTAB Football Team’s Decision Have?

Wow!  I don’t know if I have ever seen so much reporting on a decision than the recent Trademark Trial and Appeal Board’s decision in the Blackhorse v. Pro-Football case in the U.S. involving the Washington DC R_____s.  From the local radio stations, to websites for newspapers and magazines, to local and national television news coverage, this decision is getting a ton of press.  Perhaps the timing and subject matter linkage of this controversy to the Sterling/Los Angeles Clippers controversy (and especially the National Basketball Association’s stern measures taken against LA Clippers owner Don Sterling) has propelled the R_____’ controversy to new heights. 

The role of race/ethnicity and its importance in U.S. society is likely one of the most divisive issues in the U.S. spanning debates involving health care, affirmative action, immigration, privacy (see Sterling), the role of government in our lives and distributive justice issues (and on and on).  And, here it is in all its glory—in an intellectual property law case—trademarks no less.  The public’s framing of the issue: Is the government going to be able to make wealthy Dan Snyder (and many adoring R_____’ fans) change his team’s name despite decades of use and the establishment of goodwill?  To some, this question strikes at the heart of what it is to be an American (oh liberty, we love you so).  Of course, the issue is not that simple, for so many reasons.  And, despite the TTAB’s decision, there will be an appeal and, oh of course, despite press accounts, Dan Snyder can keep using his mark and can enforce it under common law and even perhaps under federal law.  What?  Really?  Yes, really.  Should Dan Snyder change the name?  Yes, see the IPKat’s thoughtful counsel here.  I’ve also written a few posts on the subject and here is one. 

Time Magazine just published an article about 600 more federally registered trademarks that use Native American imagery.  The article helpfully includes images of those marks along with a naming of the owners of those marks.  Of course, the TTAB’s decision doesn’t directly impact those registered marks.  But, does all of the (negative) press about the TTAB’s decision indirectly (maybe directly) impact the value of those marks?  Will the general consuming public now believe that because a knowledgeable federal agency has “cancelled” the Washington R_____’ mark and essentially declared it “disparaging” to Native Americans that all of these other marks are also of a “disparaging nature”?  Does this mean that other companies owning “Native American” type marks should change their marks to something like a tree (those folks are smart)?  Will consumers be less interested in Land O Lakes butter?  I think the issues are more complicated than all that and require an inquiry into the nature of the goods and services and the exact mark at issue (and maybe its historical use).  Is the problem with the R_____’ mark the exact name itself along with association with a relatively violent sport?  Will the general consuming public be so discerning?  What should “Native American” mark owners do? 

[P.S.  I’ll be praying for England today—may Wayne Rooney find the back of the net for a hat trick (yes, a total misapplication and misunderstanding of my religion--and don't be confused, I'll pray more for the U.S. and Mexico).  With apologies to Uruguay.]

The Controversial Mark is Back in the News and a Bad Example to Boot

I’ve written about the infamous mark, here.  Miri Frankel just wrote a very nice post at the IPKat about how the United States Patent and Trademark Office has refused to register a mark with that you know what word in it.  And, the Washington Post recently published this article, “[football team] owner Dan Snyder makes visits to Indian Country amid name-change pressure.”  Apparently, Dan Snyder has been making secret trips to Indian Country to get a first-hand look at the living conditions of some Native Americans.  What?  Really?  I am very surprised I had not heard about this and some media outlets have covered some of the visits—although it is supposed to be a “secret.”  I am encouraged that Mr. Snyder is making this effort.  Here is a Snyder friend’s account:

A friend of the Snyder family explained it this way: “Why is he making these trips, and why so secretly? Certainly it’s been triggered by all the attacks on him as a racist for loving the name ‘Washington [].’ So there is no question there is a link. But his feelings about the pain and depression — depression is the word he has used with me — of Native Americans who have no jobs, who have obesity issues, whose children are suffering, is profound and real.”

The Snyders have made large charitable donations in the past, contributing millions to Children’s National Medical Center and the National Center for Missing & Exploited Children in Alexandria.

The friend, who asked not to be identified because the team did not authorize him to speak on the matter, said he told Snyder that he should let people know about these trips.

“And his answer to me was: ‘Don’t you dare. They will falsely accuse me of doing this for material reasons, and I don’t want to give them that satisfaction when, in fact, I know that’s not true.’ ”

One very interesting part of the article is a discussion about the power of social media and how “public relations issues” just don’t go away anymore--welcome to the Internet.  The article notes that issues take on a life of their own and may not be pushed away by a nice check.  Of course, this highlights the importance of carefully considering a mark before adopting it—and I suppose you should consider how the mark may be perceived in the future in an evolving society, to the extent you can.  Ultimately, I don’t think Mr. Snyder will be able to find an easy middle ground.  And, he will probably change the name—that may be all that is acceptable to those who will continue to push and push because this isn’t going to go away for him.  And, the fact that Mr. Snyder doesn’t change the name may provide “bad" inspiration for others not to change their troubling team names, such as the Arabs high school football team in California. (discussion here, and see their "design" here—top left of the page).  What do you think of that mark (word and design)?