Seal of approval

Sorry, but it’s Still Illegal to Sell Unlicensed Redskins Merchandise

The seal above may not be protected by trademark law, but despite the trademark board’s recent decision, the Washington Redskins’ team logo and seal still are.

There are far too many areas of the law that aren’t readily accessible to non-lawyers, but intellectual property laws have to be in the top five categories of laws misquoted by laypersons.  The recent cancellation of the Washington Redskins’ trademark registration is just one of a long line of popular misunderstandings about IP law as even supposedly educated political leaders are erroneously stating that, “anyone can now sell team merchandise.

Such statements are, of course, patently wrong.  To understand why, we have to first look at intellectual property protections generally.  Original creations and ideas can be protected under three separate systems, patent law, copyright law, and trademark law.  These three areas of legal protection are independent; a piece of intellectual property need only be protected under one system in order for its owner to prevent others from using the idea.  While patent law tends not to overlap with copyright or trademark law, these latter two quite often overlap with each other despite offering slightly different protections.  When an item is protected by both copyright and trademark law, the cancellation of one system’s protection does not destroy the protections offered by the other system.

In the case of the Redskins’ logos, the team can still rely on copyright protections to go after anyone foolish enough to start making knockoff merchandise.  That team logo?  I guarantee that it’s copyrighted.  Use it in commerce and you’re going to be hearing from a lawyer even if all of the trademark protections have been stripped away because the copyright protections still exist in full force.

I say “even if” because, even assuming that the decision stands up on appeal, the government can only revoke the registration of the team’s trademarks, not the trademarks themselves.  Trademark, like copyright, is an outgrowth of the common law and does not rely exclusively on statutory provisions for its enforceability.  Registration of a copyright or a trademark makes things easier for the trademark or copyright holder by granting things like a presumption that the holder of the registration was using the mark first and allowing statutory damages (essentially a presumed amount of damages that can be awarded regardless of any actual damages from the defendant’s wrongful use), but registration is not a necessary precursor to protection under the law.

Even if the registration is ultimately cancelled (the registration remains in effect until the appeals process has ended, regardless of whether or not the appeal is ultimately successful), the practical effect on the team’s ability to prosecute people for making knock-off merchandise is relatively small — the common-law protections afforded to unregistered trademarks are hardly ineffective and it’s naive to think that the team would not use those avenues to prosecute people selling unlicensed merchandise.

I’m no fan of the team’s name, nor of its decision to double down on a name that offends many, but I’m also realistic about the likely effect of the trademark board’s recent decision and unfortunately that effect is likely nill.

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