Jeremy Sheff on Washington Redskins Trademark Issues
The Redskins just lost some legal protection of their name. Here's what it means
By Joseph Stromberg
But even if the team loses its appeal, they'll only lose the registrations — not the actual trademarks. A person (or organization) gets a trademark by using it in commerce, and registration is simply an extra step that confers extra protections. "The Lanham Act gives the senior user of a mark the right to prevent others from using a mark that is likely to cause confusion, regardless of whether the mark is registered," says Jeremy Sheff, an intellectual property law professor at St. John's.
This protection falls under the category of common law trademark rights, and it means that even if the Redskins' trademark registrations are cancelled, they'll still be able to go after other people using the marks on merchandise on the grounds that they're confusing customers. They may not, however, be able to collect monetary damages from infringers (as they currently can), and it would be difficult to enforce these rights in response to people making products overseas.
It's theoretically possible that a judge would restrict the team's common law rights on the basis that the marks are disparaging, but unlikely — and we probably won't find that out until the team actually sues someone using the name.
"There's a chance that the Redskins mark will eventually be found not only unregisterable, but unenforceable," Sheff says. "But I don't think it's a strong one."