Did you hear the Washington Redskins lost their trademarks last week? And that now anybody can sell commemorative Redskins jerseys without paying royalties to the team? Unfortunately, you probably have, but it's just not true. What did happen is that the Trademark Trial and Appeal Board (TTAB) issued a decision to cancel federal registrations for six REDSKINS marks. However, the TTAB decision does not:

Some of the confusion surrounding last week's Trademark Trial and Appeal Board (TTAB) decision to cancel six REDSKINS trademark registrations in Blackhorse v. Pro-Football, Inc., stems from a lack of familiarity with the TTAB itself, and its parent, the United States Patent and Trademark Office (USPTO) (USPTO Cancellation No. 92046185, June 18, 2014). For more on the Blackhorse decision, see Legal Update, Finding Disparagement, TTAB Orders Cancellation of Six REDSKINS Trademark Registrations.

The USPTO is the federal administrative body that grants and administers federal trademark registrations. The TTAB acts as a court within the USPTO to decide disputes about eligibility for trademark registration.

These registrability disputes include:

The two principal types of inter partes proceedings are:

Once the TTAB makes a final ruling in a dispute, any party dissatisfied with the decision can request its review by either:

A TTAB decision does not get implemented, if at all, until any appeal is decided. For this reason, the REDSKINS trademark registrations remain in effect pending judicial review of Blackhorse.

Trademark registrations can be valuable. Some of the benefits of having a trademark registered with the USPTO, which are at stake in a cancellation proceeding such as Blackhorse, include:

For more information about trademark registrations in general, see Practice Note, Acquiring Trademark Rights and Registrations.

Because the USPTO's jurisdiction extends only to trademark registrations and not to trademark use, the TTAB's decision-making authority is likewise limited to the registration of trademarks. Accordingly, the TTAB can keep a mark from being registered or cancel a trademark registration, but cannot:

For any of these other remedies, a party would have to file suit in federal or state court. For more information on trademark infringement and dilution claims, see Practice Note, Trademark Infringement and Dilution Claims, Remedies and Defenses. As the USPTO emphasized in its statement following the Blackhorse decision, the TTAB does not have the jurisdiction to force anyone to "cease use of a mark, but only to determine whether a mark may continue to be registered."

For this reason, the TTAB's Blackhorse decision does not prevent the Redskins from using the REDSKINS marks. And in the US, it is use of a trademark in the marketplace that creates trademark rights. Because the owners of the REDSKINS trademarks have been using those marks for decades, they have accrued substantial common law trademark rights in those marks. The Redskins can enforce these common law rights against infringers, even without owning any trademark registrations. For more about trademark rights, see Practice Note, Acquiring Trademark Rights and Registrations.

If you are considering an opposition or cancellation proceeding against another party's trademark, see Practice Note, TTAB Oppositions and Cancellations: Practice and Procedure.

If you are concerned that someone might be contemplating an opposition or cancellation proceeding against your trademark, see Practice Note, TTAB Oppositions and Cancellations: Grounds and Defenses.

For a table of key TTAB cases and federal decisions on appeal from the TTAB, see Practice Note, Trademark: Case Tracker (TTAB).

For more on the Blackhorse decision, see Legal Update, Finding Disparagement, TTAB Orders Cancellation of Six REDSKINS Trademark Registrations.