A federal judge has just ruled that the U.S. Patent and Trademark Office had the right to cancel the Washington Redskins trademark protections because those trademarks might disparage Native Americans. There will be more appeals, and it should be noted that no one will be able to legally use the Redskin trademarks without the team's or the NFL's permission until those appeals are resolved. But there are a number of reasons why I don't think the bean counters at Redskin offices need to be worried just yet. And the #1 reason is the NFL is probably a much more vigorous and powerful ally than even the U.S. government when it comes to copyright and trademark protection. Political cover, however, is another matter.
Merchandising revenue in the NFL is shared evenly by all 32 teams except the Dallas Cowboys, who opted out of that sharing agreement. (One exception: team merchandise sold at designated stores and at home stadiums does not have to be shared). The NFL lumps ticket sales and merchandising revenue figures together in the same accounting column, but the league-wide sale of official team clothing and other items brings in about $1.2 billion per year. For years, that sharing agreement has probably cost the Redskins money because they've been one of the top 10 most popular teams in the league and they only got 1/31 of all the merchandising revenue. But now it will come very much in handy as I expect the formidable power of the NFL to scare the heck out of any serious vendor who tries to sell non-officially recognized Redskins items. As long as the Redskins are a part of the NFL, the league will do whatever it can to protect one of its members no matter what the courts say.
Don't believe me? Ever wonder why TV commercials and newspaper ads use the words "big game" when they're obviously talking about the Super Bowl? That's because the NFL will slap you with legal action if you use the Super Bowl name to advertise the sale of big-screen TV's, bar happy hours, and even a church dinner. And again that's for just mentioning the name of the game, let alone daring to sell any unauthorized merchandise that has any Super Bowl or NFL team logos or words on it. The NFL is even more aggressive when it comes to counterfeiting and the FBI and other law enforcement agencies often help lead raids on counterfeiters and shut them down. Simply put, the NFL is aggressive and doesn't give anyone a pass when it comes to its properties. Just because the federal government won't enforce a trademark, it doesn't mean the NFL won't make your life miserable if you try to undermine one of its collective revenue streams.
So while it may eventually be legal to sell a non-official Redskins t-shirt or hat at your store, it's not going to be a good idea if you're also looking to sell any other NFL merchandise. And even if you're okay with only selling Redskins items, you better be very sure the NFL logo or anything like it doesn't appear anywhere on any of that merchandise because the lawyers will be calling you if you slip up. I don't think any major or even small retail chain will want to take that chance.
That leaves smaller Internet sites and the already illegal counterfeiters who will likely benefit to some degree if the Redskin trademarks become permanently void. Take whatever money they bring in and divide it by 31 and then you'll have the amount of money the Redskins will have lost if this trademark decision holds up. We're not talking seriously big money here. So on that score, it's going to be the NFL to the rescue.
But while the NFL can easily crush these kinds of retail challenges, the political challenges could prove more serious. It must be made clear that the Patent Office's move was the Obama administration's attempt to put financial pressure on the team. The White House and the Left in general wants to win this fight not only to get the Redskins to change their name, but to prove that they are stronger than even the mighty NFL.
Poll after poll shows very few Americans right now are really interested or angered by the Redskins name or logo. That's good, because they shouldn't be. The team is certainly not looking to name its own players after a slur after all. But attitudes do change quickly as we've learned recently based on the Confederate flag issue and after the gay marriage ruling. And politicians are always looking for controversies like this to take advantage of. There are certainly more important issues than a football team name, but context and perspective aren't usually something protest movements and politicians care too much about.
So imagine if President Obama decided to grant a live broadcast interview to ESPN and he let it drop during that interview that he really thinks the Redskins should change their name. Then imagine presidential candidate Hillary Clinton, while also claiming she's a lifelong Redskins fan, echoing that sentiment on the campaign trail a day or two later. Wouldn't a decent segment of the public and the general news media fall in line and add pressure to the Redskins and the NFL if that happened? Before you answer, remember that the movement to force a Redskins name change was re-energized when President Obama said something similar in a print interview with the AP in 2013.
Then everything will come down to simple math that even the NFL can't ignore. Changing the team name will be costly in the short run. But if those costs become smaller than the lost revenues from some kind of sudden turn in public opinion, the team and the league could soon come to value finances over power.
In that scenario, the NFL would come out fine and the Redskins under a new name would come out fine too. But the American ideals of protecting Free Speech and preserving 1st Amendment rights over ephemeral or trumped up controversies decidedly would not.