No question, the PTO got it right.
The PTO’s administrative law branch, the U.S. Trademark Trial and Appeal Board, finally decided the REDSKINS trademark is too offensive to continue to justify the expanded rights that stem from federal registration. So it canceled the team’s six registrations on the ground the mark is “immoral or scandalous.”
The mark has been so offensive to Native Americans for so long, it’s a shame it took the government this long to strip the mark of the additional rights it had granted.
However, its doing so in no way means the team has to stop using the mark or that others can sell merchandise bearing the trademark without liability. Both of those things were widely reported, but they’re wrong. Unless and until a court makes the same determination the TTAB made, the Washington Redskins can continue to enforce their common law rights in their mark — rights that date back decades. Hopefully someday soon a court will decide as the TTAB did, but it is not obligated to do so. Unlike other federal agency decisions, U.S. courts do not defer to PTO decisions.
For that reason, the TTAB’s decision is mostly symbollic. Since we recognize common law trademark rights in the United States — rights that automatically arise through trademark use — cancellation of the team’s registrations doesn’t cancel the mark itself.
KIRO interviewed me about this issue on the radio. Text of the story is viewable here. Unlike other news coverage, KIRO didn’t overstate the decision’s limited implications.