Will pork rinds prove fatal for Redskins?

Although she officially hung up her blogging katboots a week or so ago, there is no evidence of any diminution in recent guest Kat Miri Frankel's dedication -- or in her enthusiasm in pursuing the cause celebre of the Washington Redskins brand to the very end. Here's Miri's update:

Pork Rinds May Be Death Knell For NFL Redskins Team

In September, when the IPKat published this blogpost and corresponding reader poll about whether the US National Football League (NFL) team currently known as the Washington Redskins should change its name due to increasing popular belief that the term “Redskins” is a derogatory term that is offensive to Native Americans, the response was emotionally charged: there was a near 50-50 split between those agreeing that the term is offensive and those suggesting that the team name is historical and should be preserved.

"Ha, ha ha! Hee, hee, hee!
Those folks in the USPTO
can't register me!"
In her initial post, this former Guest Kat wondered whether the NFL team would successfully be able to register a trade mark for “Redskins” today. That question has now been answered by the USPTO with a resounding “no.” The answer comes in the context of a trade mark application by an individual who applied to register the mark “Redskins Hog Rinds” for pork rind snacks. On 29 December the USPTO issued a refusal to register the mark on the grounds that

“the applied for mark Redskins Hog Rinds consists of or includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols.”

Such marks are unregistrable under Section 2(a) of the Lanham Act if the meaning of the mark “may be disparaging to a substantial composite of the referenced group.” The USPTO thus considered the view that Native Americans take towards the term “Redskins,” and found that a substantial portion of the Native American population considered Redskins to be offensive. Significantly, the National Congress of American Indians condemns use of the term and refers to the NFL team as the “R*dskins” or the “R-Word” team.

The USPTO also pointed to prior attempts by Native Americans to force the NFL team to change its name (see earlier Katposts here and here) as further evidence that the term “Redskins” is disparaging to a substantial composite of the referenced group. As a result, the USPTO concluded that “[g]iven that ‘Redskins’ in the [Redskins Hog Rind] mark is a derogatory slang term that refers to, and is considered offensive by, American Indians, registration of the applied-for mark must be refused….”

Notwithstanding this initial refusal, the USPTO gave the applicant an opportunity to revive the application upon a showing that “Redskin” or “Redskins” either has special significance in the pork rind industry or is a “term of art” for the industry (for example, the State of Washington is home to a type of potato known as a redskin potato, and related trade marks have not – at least thus far – been challenged). If the applicant is unable to make such a showing, the refusal will become permanent.

Anyone wanting to risk
using the R-word as a
brand must be ... nuts
Now that the USPTO officially recognizes that “Redskins” is too offensive to trade mark, the Washington football team may have difficulty overcoming the trade mark cancellation proceeding pending with the USPTO’s Trademark Trial and Appeals Board (TTAB) unless it is able to convince the USPTO and TTAB that the term has gained significance in the sport of football due to the historical use of the term by teams at all levels of play from grade schools to the professional league. However, even if the Washington Redskins’ federal trade mark registration is rescinded on the grounds that it is disparaging, the team may still continue to use the mark – it would merely lose the legal rights and protections afforded to federally registered trade marks. On the other hand, if the team loses its trade mark registration, it might then reconsider its determination to keep using the name in favour of a mark that is federally registrable.