THE “R” WORD

A little knowledge can be a dangerous thing. News of the federal cancellation of the Washington Redskins trademark registration has resulted in repeated misinterpretations of the “whats and wherefores” of trademark law.  News commentators, deferring to their so called expert attorneys, sportscasters and social critics, have breathlessly charged up Mount Misunderstanding only to hurl their viewers even deeper into an already fiery volcano.  In one instance, a banner headline read, “Patent Office Cancels Redskins Trademark”.  Flip the channel and you heard a trusted CNBC financial analyst wonder aloud what would happen “now that the Redskins trademark has lost its patent”.

The origin of the confusion lies in failing to first correctly identify the type and then the purpose of the intellectual property involved. Trademarks and patents are as different as a hand is from a foot.  Even though both body parts serve us they do so in vastly dissimilar ways and for wholly different reasons. 

A patent identifies an innovation that either allows us to do something we were unable to do before its invention or in some way or another enhances our ability to accomplish a task. It has life only by virtue of a government license that, for a limited period, recognizes its utility.  In other words, it forbids would be competitors from making, using, or selling the product or process without the explicit permission of the inventor, e.g., a pill that instantly grows a thick and lustrous head of hair.  But a trademark is the name, logo or symbol that both identifies and distinguishes that product or service from all others (e.g.,HairBeBack). Unlike a patent, a mark is capable of being renewed until the end of time.  It better be; you’ll need it to promote your brand. Consequently, the US Patent & Trademark Office (USPTO) has two divergent functions. (A third form of intellectual property, copyrights, is handled by the Library of Congress.)

So what’s the big deal?  That NFL team in the District of Columbia officially lost its name and logo, right?  Wrong. The USPTO cannot and does not cancel trademarks; it can only cancel their federal registration.  Because the US is a common law nation, a trademark becomes legally protectable by its mere use  (e.g., selling HairBeBack across state lines).  There’s also the option of registering the mark with an individual state or even abroad. So contrary to the June 18 New Yorker (Magazine) News Desk, even though team owner Dan Snyder, will still be able to use the name “Redskin”, if you gleefully jumped down that live volcano and emerged with a thousand just printed t-shirts with the Redskins logo or decided to call your semi-professional beach volley team the Redskins or planned to open a chain of Redskins Auto-body shops, you’ll likely face the wrath of Snyder along with his legion of savvy trademark attorneys in court.  And you’ll lose. 

Then again, Snyder may also lose albeit in his case, in the court of public opinion aka the commercial marketplace.  Although the Redskins name and logo read exactly the same as before its registration’s cancellation, it nonetheless has undergone a dramatic alteration. Recall that in our previous visit, I not only described trademarks as identifiers but as magic wands with an immense power to shape both our perceptions and purchases despite the fact that we’re typically unconscious of their influence in shaping our feelings.

Despite Snyder’s mighty effort to maintain the mark’s status quo, the Redskins name and logo are no longer limited to identifying the NFL team that takes on the Dallas Cowboys at least once a season.  Depending on a person’s point of view, it’s either become a symbol of bigotry or one that illustrates the oppressive and unfair result of governmental tampering in the marketplace. With the nation’s increasing tolerance and respect for racial and ethnic differences, it’s reasonable to believe that not as many  folks — fans or otherwise — will be caught proudly wearing Redskins paraphernalia.  We may be witnessing a nationally known brand steadily losing its marketshare along with its shrinking value as a source of revenue for both Snyder and the NFL .  Consequently, no matter the outcome of the team’s formal appeal, the former glory and might of the “R” word may also and up being permanently lost in that raging inferno.

John Banks-Brooks, Associate

ZG Worldwide

June 2014
("Paying The Price," by John Bank-Brooks.)

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