The last place you want advice is from someone who stands to profit from it. Just like our resident ATOT patent attorney who can't see anything wrong with our current patent system. Of course, it's irrelevant how the client or system is irreparably harmed, as long as we get paid.
Took me just a few minutes to find support for this legal opinion, from a sports lawyer, just one of many. Obviously the freely available Internet cuts into many business profits for those who sell information at a premium.
Cha-ching, cha-ching (added by me)
Read More:
http://sportsillustrated.cnn.com/nf...kins-trademark-cancelled-uspto/#ixzz35FnXRREU
Because when I want legal analysis, I always turn to Sports Illustrated. It's a little-known fact that the Swimsuit Edition is routinely at the top of the list for publications most frequently cited in court decisions.
And yes, I'm all about the profits. That's why I'm sharing the information for free on an internet forum.
If I were in this for money, I'd let you all spout uncorrected bullshit and then laugh all the way to the bank as I collected massive fees for fixing all the legal mistakes that laypeople make. Anyway.
Taking the bits one by one:
Registration carries a number of advantages, including a legal presumption of ownership and the exclusive right to use the mark in connection with specific goods and services.
This does not mean what you think it means. Registration creates the presumption of ownership and the presumption of the exclusive right. It does not create the exclusive right. Given the history of the team, the value of these presumptions is virtually nil since the organization is of sufficiently high profile to establish both of these without the presumption.
As a result of the cancellation, the Redskins have far more limited federal trademark protection to stop counterfeits and other businesses from commercially exploiting their name in selling merchandise and apparel. In theory, the Redskins and their owner, Daniel Snyder, could lose millions of dollars as a result of the cancellation. Revenue sharing by NFL teams on licensing contracts means the 31 other franchises could stand to lose millions as well.
Notice how he explicitly says that the federal protection is more limited. Conspicuously absent is the fact that state protection (which is every bit as powerful as federal protection) remains unchanged.
As for the rest, well, in theory, if my aunt had nuts she'd be my uncle. People are quick to hype unlikely worst-case scenarios because they make good headlines and they grab readers. The reality is that while, in theory, the team "could" lose millions, such an outcome is about as probable as Scalia suddenly saying that his devotion to plain meaning was all a joke and that from now on all his decisions will be based on legislative intent. (For those who aren't in the legal profession, that means it's rather unlikely.)
The law cannot compel the Redskins to change the name. Instead, critics of the name can attempt to make it more difficult for the Redskins to profit off the name, and thus give the team financial incentives to voluntarily change it.
This doesn't say that the cancellation of the registration would make it more difficult for the team to profit, only that attempts to make profits more difficult are one avenue that critics can take.
However, cancellation makes it more difficult to enforce exclusivity under federal law since the Redskins lose legal presumptions, customs and counterfeiting remedies.
Again, note the conspicuous absence of mention of the fact that state law provides robust protections that are unaffected by the cancellation of federal registration. Mentioning such things runs against the narrative of the cancellation being a major step forward so such things are not mentioned.
There are also court decisions in those states -- better known as "common law" -- that may be favorable to the Redskins for exclusive use of the team name. Indeed, the Redskins likely enjoy some protection under common law so long as the mark -- the Redskins -- is used in commerce. In other words, even if the USPTO ruling prevails over a Redskins appeal, the Redskins may continue to enjoy legal protection through other sources of law.
And here we go. He's now agreeing with me. However, he's buried this information at the end of the article because it doesn't fit with what people want to hear. And, further, he has misleadingly used the phrase "may continue" when the truth is that it is much more correct to say that the protections "will continue."
Expect future litigation to determine the exact legal rights of the Redskins to enjoy exclusive commercial use of the team name.
And we're finishing with pablum that has no real meaning but makes the reader feel good by implying that somehow the state laws might be circumvented through further legal action. They won't be.
In the grand scheme of things, the cancellation of federal registration for the trademarks would be an annoyance, but nothing more. They would continue to be able to sue for infringement. They would continue to be able to collect awards in the same manner they do now. They would face a trivial amount of increased work to show that they've been using the mark in commerce, but the fact that the team is almost universally known in the US makes such showings roughly the same level of difficulty as breathing.
Yes, they will lose some international protections. But the overall international market for merchandise of an American Football team with an offensive name simply cannot be significant. And yes, they lose some customs enforcement of counterfeit merchandise at the border, but this doesn't make it legal to sell that merchandise just because it gets through. They will continue to be able to sue people selling the counterfeit merchandise in the US just as they've always done.
The professor at a third tier toilet law school who wrote that article is embellishing and pandering to his lay readers.
I don't expect you to be convinced. After all, "the man he hears what he wants to hear and disregards the rest." But folks like you are great for my own job security.
ZV