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Redskins Ruling Could Stick This Time, Say Trademark Experts

The U.S. Patent Office has ruled that the Washington Redskins nickname is disparaging to Native Americans and the federal trademarks for the teams name must be canceled. Doug Pensinger / Getty Images

A ruling by the U.S. Patent and Trademark Office, declaring the team name of the NFL's Washington Redskins "a racial slur," has a good chance of being upheld, experts in trademark law said Wednesday.

Wednesday's 2-1 vote by the three-member appeal board marked the second time the team name was declared invalid. The board reached a similar decision in 1999, but its order was overturned on appeal.

The Redskins vowed Wednesday to appeal again.

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"We've seen this story before. And just like last time, today's ruling will have no effect at all on the team's ownership of and right to use the Redskins name and logo," said the team's trademark lawyer, Bob Raskopf.

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The last round of legal battles over the name ended when a federal appeals court ruled the Native Americans who originally went to court waited too long to sue. A different group filed the complaint this time, including some who only recently turned 18, gaining the legal right to sue on their own behalf.

The board's Wednesday ruling says, in essence, that the young tribal members sued as soon as they could, which overcomes the problem of waiting too long that doomed the earlier case.

Another factor working against the Redskins, says Michael Hobbs, a trademark expert at Troutman Sanders in Atlanta, is the court of public opinion.

"This is a very topical issue," Hobbs said. "You have people like [Senate Majority Leader] Harry Reid saying they're not going to games. So while you may have some similarities with the past decision, perhaps the landscape has changed."

Wednesday's decision applies only to federal legal protection for the team name. The board has no power to prevent the team from continuing to use the Redskins name.

"The team will continue to own and be able to protect its marks without the registrations," Raskopf said.

While the Redskins can use other legal forums to protect the use of the name in the lucrative sale of football merchandise, the loss of federal protection would be a blow, says Domenic Romano, a sports and trademark expert at the Romano Law firm in New York.

"One of the chief advantages of federal trademark protection is that you can stop products at the border. Customs officers have lists of federal trademarks, and they can prevent importation. With that barrier gone, you could have products flooding into the market."

The board acted on a complaint filed by five Native Americans, including members of the Navajo Nation, the Paiute Indian Tribe of Utah, the Kiowa Tribe of Oklahoma, and the Muscogee Nation of Florida.

Dictionaries show a clear trend toward labeling the term as offensive, and the executive council of the National Congress of Indians declared the term disparaging and racist, the board found.

Though the Redskins football team has a legitimate business interest in keeping the name, "It is difficult to justify a balancing of equities where a registrant's financial interest is weighed against human dignity," the board said.