USPTO Cancellation of Redskins trademark does not mean the end of the mark/name

Posted on June 18, 2014 by Sean O'Connor

The media is treating the TTAB’s cancellation of 6 of the Redskins’ trademarks as if this is the end of the name/mark (pending appeal).

http://nyti.ms/1l2Wela

But, as the TTAB itself points out, federal registration is not the totality of trademark protection. Should the Redskins desire to continue using the marks/name–even if they appeal the TTAB decision and lose–they can enforce under state registration and/or common law rights. This is certainly more onerous than having nationwide federal rights. And it runs the risk that there might be some senior users in particular jurisdictions. But there are plenty of state-based marks used as brands out there. A good sign is whether the mark is identified by “™” or “SM” rather than ®. The latter may only be used for federally registered marks.

http://www.uspto.gov/news/USPTO_Official_Fact_Sheet_on_TTAB_decision_in_Blackhorse_v_Pro_Football_Inc.pdf

Thus, whether one likes the name or not, nothing about this TTAB decision itself forces Dan Snyder and the Redskins to abandon the mark/brand.

About Sean O'Connor

Sean O’Connor is Professor of Law at George Mason University, Antonin Scalia Law School. He is also Founding Director of the Innovation Law Clinic and Executive Director of the Center for the Protection of Intellectual Property (CPIP). With a diverse background in music, technology, philosophy, history, business, and law, he specializes in legal issues and strategies for entrepreneurship and the commercialization of innovation in biotechnology, information technology, and new media/digital arts.
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