Trademark Sensitivity: Learning from the Washington Redskins
A brand must be respectful of the cultures, values, and ideals of others to be successful in today’s fast-paced global economy and marketplace. Over the past few days, the Washington Redskins’ legal battle with disgruntled Native Americans and sympathists has been the subject of national debate. After using its mascot of over seventy years, the NFL franchise may be forced to rebrand, stemming from the belief that the mascot is disparaging and offensive to Native Americans.
This battle has a larger impact than just a sports team’s name change. The struggle serves as a warning to any organization that seeks to trademark a brand. Avoiding this problem seems simple enough: be sensitive to the feelings and backgrounds of others. This does not mean that everyone must like your brand, but instead means that businesses of all types should be mindful of what different groups of people, large or small, hold dear.
Federal trademark law does not permit registration of trademarks that “may disparage” individuals or groups or “bring them into contempt or disrepute.” Generally, legal determinations require a majority. Here, 30% of a group is allegedly disparaged, and this constitutes substantial disparagement under the law. No matter how powerful and influential a company is, its trademark may still be challenged by a disparaged group. Even a national sports icon like the Washington Redskins faces rebranding. Remember to choose trademarks wisely. Be sensitive (but not hypersensitive) of how others may feel about your trademarks and branding choices, but do not plan in fear of a challenge to your trademark. Fearful planning may cause indecisiveness and a brand that, while inoffensive, is not marketable or representative of the goods and/or services of the business. While it is true that the Redskins faced this issue a decade before and prevailed, it would be foolish of another organization to believe that victory is assured. The Redskins may prevail again, but will always remain on guard for another challenge to their marks. Businesses should learn from the Redskins’ example and be sensitive and respectful of all groups and individuals. The NFL icon’s trademark cancellation may be a symbolic victory now, but the coming weeks and months will determine whether the Redskins will rebrand the team and seek federal trademark protection for the rebranding, or proceed absent such protection and be ridiculed for insensitivity.