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Red Wolves, RedTails Trademarks Sought Before New Team Name (4)

July 13, 2020, 3:27 PMUpdated: July 14, 2020, 6:43 PM

Although Washington’s NFL team hasn’t yet announced its new name, several trademark registration applicants have been trying to guess.

The team announced Monday it would change its name. Applicants have been registering names since the team announced July 3 it would review its use of “Redskins,” in hopes of securing potentially lucrative rights to the name the team wants.

The team appears determined to move quickly in the face of mounting pressure, sports law attorney Edward Schauder of Phillips Nizer LLP said. That means it’s probably already reaching out to possible rightsholders to explore the availability of various names, but that details would be “top secret” so as not to tip off its intentions, he said.

“I don’t think they would have done even an announcement that they were going to do a name change if they weren’t in a negotiation with the owners of the name they’re interested in,” Schauder said. “A lot of lawyers are under a tremendous amount of pressure right now, trying to get this right. Because they can’t afford to get this wrong.”

Alexandria, Va., resident Philip Martin McCaulay applied to register two newly emerging fan favorites—Washington RedTails and Washington Red Wolves—last week, according to U.S. Patent and Trademark Office records. McCaulay also applied for Monuments, Veterans, Americans, and Renegades. He also applied for a batch of trademarks on potential team names in 2014, including the Red-Tailed Hawks.

McCaulay, however, said he would give the team the rights to any trademarks he owns for free. He said his bids to secure the trademark rights for the name started as a “bizarre hobby” that he did for fun, and that he also wants the name to change and to do his “little piece” to facilitate that, saying applications cost less than an average game ticket.

A California company, F1rst World Apparel, also filed for an apparel trademark on Washington War Hogs July 5. Other apparent bids to register team names filed since then—often “Washington” plus the name, filed under services classifications like “entertainment in the nature of football games” and various clothing and merchandise—include the Potomacs, Freedom Fighters, Tribe, Braves, and Radskins.

The team, then based in Boston, changed their name from the Braves to the Redskins in 1933.

‘Indefensible?’

The trademark office and courts “have developed a negative view on squatters” who file hoping someone later finds the registration valuable, law professor John T. Wolohan of Syracuse University said. If a new applicant or registrant does actively use the name in the categories they claim, they can still take time to legally dislodge, because it’s harder to show they never planned to use the mark properly as an indicator of who made a product, he said.

Schrauder added that the team’s sense of urgency to quickly pick a name before the season starts could make it more willing to pay a rightsholder. The name search is complicated by the need for approval from the league, sponsors, and licensees, who are all likely involved in discussions, he said.

Still, registrations and applications like McCaulay’s would be easy to attack—and may even raise questions of fraud based on the class of goods and services a registrant claims they intended to use, trademark attorney Marsha G. Gentner of Dykema Gossett PLLC said.

He “couldn’t possibly have intention” to use his marks to put on football exhibitions, Gentner said.

Bids for merchandise trademarks could also easily be axed as ornamental rather than an indication of who made a product, she said. Gentner said the Redskins likely wouldn’t pay a “ransom” for such a mark.

“Why choose the one that will give you a headache,” she said of the team, though she added that any nickname selection would likely bring litigation.

McCaulay filed an opposition last week against a February application for Washington RedTails by a pair of Washington-area residents, in which he said he’d told the NFL he’d give up his trademarks for free. He alleged RedTails infringed on his Washington Red-Tailed Hawks registration.

McCaulay said the NFL would easily get his marks canceled at the trademark office, and that his Red Wolves is probably doomed regardless because Arkansas State University has previously litigated to protect its Red Wolves nickname.

“I’m the poster-child for someone with a trademark registration that is the most indefensible of all time,” McCaulay said.

(July 13 story updated with additional reporting. Earlier version corrected Marsha G. Gentner comments in 11th paragraph to specify that speaker referred to staging football exhibitions. )

To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editors responsible for this story: Melissa B. Robinson at mrobinson@bloomberglaw.com, Keith Perine at kperine@bloomberglaw.com

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