No. First of all, it’s not the logos. These weren’t at issue here. The helmets with pictures of Indians, not at issue here. It’s the term Redskins. The marks are for the word. Although common-law rights are not necessarily as good as you get with a registration, I don’t think it’s a good risk for you to start making Redskins apparel because if the football organization were to go to court to try to force you to stop making counterfeit product they’ll probably win.
Are there any gray areas business-wise between this period where they have common-law rights but still in trademark protection limbo?
As far as Redskins merchandising, until the appeals process is over, I don’t think it means anything.
So all the celebrating by the petitioners, is it all premature?
I think there’s a lot more hype than there needs to be at this point in time. It’s still in the middle of the process.
Let’s say hypothetically, the Redskins organization loses the appeals process. I know they won their previous appeal, but what if they lose this time around. What happens to people who own Redskins apparel or merchandise?
That’s an interesting question. When they stop printing Kennedy dollars will it increase or decrease in value? It depends on the market. It’s a tough call. They’re not going to be “illegal” because they will have common-law rights in this term. They are not going to be able to take advantage of some of those rights that you get with a trademark registration, but assuming they want to continue to enforce this mark they have the ability to do that. Now politically and from a public relations perspective it may be not too bright to do that. But again, that’s a ways a way. My feeling is that when the season opens they are going to be the Redskins. That’s for sure.
So what does the common law protect you from as pertains to merchandising?
You get more benefits from a actual registration than you get from a common law. [With] common law trademarks you start acquiring rights in a trademark as soon as you start using the mark. If the Redskins were to take someone to court to try to stop the use of the term Redskins on unauthorized products they would have to convince the court that their mark was not disparaging and that they are entitled to trademark rights. How much deference the district court will give to the trademark trial and appeals board rule will be the question. Especially while the appeals process is still ongoing.