The Washington NFL Team’s Newest Opponent: The “Trademark Hog”

By: Kyle Tatich

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Inspired by the 2014 South Park episode regarding the Washington Redskins and its trademark controversy, Virginia’s Philip Martin McCaulay began filing applications with the United States Patent and Trademark Office (“USPTO”), hopeful for a potential payday if a name change became necessary for the NFL’s franchise in Washington, D.C. That day came in July 2020, following a wave of anti-racist protests sparked by the death of George Floyd on May 25. The July announcement that Pro Football Inc. and majority owner Dan Snyder would move on from the 86-year-old nickname of “Redskins” launched McCaulay and his many trademark applications and registrations into the national spotlight.

Over the past six years, the self-described “trademark hog” filed intent-to-use applications for marks such as the “Washington Redtails,” “Washington Redtail Hawks,” “Washington Redwolves,” “Washington Monuments,” “Washington Americans,” and “Washington Veterans,” among nearly 35 others. Of the aforementioned marks, the “Washington Redtail Hawks” and the “Washington Americans” are the most notable to have received official registrations after review by a USPTO examining attorney. This means that at a minimum, the mark met the threshold required by the Lanham Act for registration—that McCaulay was actually using those marks in commerce and in conjunction with the goods and services described in those applications. On August 19, 2020, McCaulay filed an application to register the mark “Washington Redtails” in connection with a website providing information about the sport of football. This website has been in use since February 12, 2015, as seen through the USPTO-provided specimens, and provides information about the redtails, professional football in Washington, D.C., and a proposed flag football league that begins next year. Notably, this proposed local league would feature teams with nicknames identical to many of the marks registered by McCaulay.

But how much do McCaulay’s registrations impact the Washington NFL Team’s process for finding its new mark? Probably not much. It’s important to recognize that the “Washington Americans,” mark was granted registration for use in the sale of various clothing items. Similarly, the pending applications for “Washington Redtails” are (1) for a website of information about football (a sharp contrast to entertainment in the form of professional football games), and (2) a subsequent application for cups and mugs. McCaulay has a website where consumers can purchase clothing, cups, and mugs with his marks, making it likely that an examiner will approve this application because he has shown a bona fide intent to use the mark for the purpose identified in his applications.

Because McCaulay will not be able to demonstrate a bona fide intent to use any mark in conjunction with entertainment services or providing events within the realm of professional football games, the Washington NFL Team should not have to worry about competition in that regard. Even if McCaulay successfully registered his marks in connection with a flag football league in Washington D.C., it’s likely that the marks would not apply to “entertainment services in the nature of professional football games and exhibitions,” as described in the 2016 registration granted to the Raiders Football Club, LLC in connection with its mark, “Las Vegas Raiders.”

However, if the franchise decides it likes the nickname “Redtails,” or any other mark with a registration or pending application, it may be wise for the franchise to seek an assignment of rights attached to that mark. Otherwise, it’s plausible that the organization, if it files an application, would have its application denied based on the existing registration—and subject itself to potential infringement litigation. That is precisely why Philip Martin “trademark hog” McCaulay may have become the newest—and most formidable—opponent to the Washington NFL Team.