Eric Macramalla Discusses the Latest in the Washington Redskins Trademark Case

Eric Macramalla, legal analyst at the Sport Network (TSN), joined Jeff Thurn on Friday’s edition of Overtime on ESPN 99.1.

The United State Patent Office recently canceled the Washington Redskins trademark registration for being 'disparaging of Native Americans.'

Thurn asks Macramalla how the Redskins case that canceled their trademark registration happened?

"Well, I guess the first thing I would say here Jeff, is the trademark registrations haven't been canceled. They've been ordered canceled. They are still active and in good standing. They will stay active as long as the Redskins are appealing, which could be a year or two or more. As far as this coming out of left field, there was a similar cancellation proceeding filed years ago, and that appealed by the Redskins ended being successful in a procedural ground in court. So, it was never really decided on its merits. Is it a total surprise. I think no, only because there's been such momentum and traction that has led to this latest rise in the discussion with respect to the Redskins name. So, something was going to happen. Someone on my show a couple weeks ago asked me what could they do? And I said one thing they could do was a cancellation proceeding as far as largely symbolic, but it could have some type of impact."

Macramalla discusses what happens if the case doesn't go the Redskins way?

"I'm glad you asked that because there's been a lot of misinformation out there. People think if their registrations are canceled, the Redskins can't use it as a team name and can't stop other people from using it. All that is categorically and unequivalently incorrect. If you have no trademark registrations, and if you are the Redskins, you can still enforce your mark against other people who are using it. If there's some guy making jerseys without the Redskins permission with their logo, you can still stop them and the Redskins can refer to what is a common law trademark. It's different than a registered trademark. What a common law trademark is just simply trademark rights that you acquire simply by using your mark in the marketplace by selling jerseys, tickets, television, and all that kind of stuff. Those are enforceable trademark rights. As a lawyer I rely on more often than actual trademark rights. So, the Redskins, No.1, would not lose the ability to stop some guy in Wisconsin from selling Redskins stuff without their permission. No. 2, they still have trademark rights and are pretty strong because they are marked as famous. And No. 3, they wouldn't have to change their name. This cancellation proceeding deals with a very narrow area of law and that narrow area of law is it deals only with the register-ability of the trademarks and nothing else. It has very little impact and that's why I said moments ago, it's kind of symbolic than anything else because the Redskins still have a lot of firepower if they want to protect their marks."

To hear more of Macramalla’s interview with Thurn, listen below: