The NFL team is changing their name. Will a “Trademark Troll” profit from it?

The Washington Redskins announced this week that they will be changing their team name after mounting criticism that the name is offensive to Native Americans. However, one fan has already jumped on trademarking potential options for new team names for the Washington NFL franchise.

The fan, Philip Martin McCaulay stated to the press that he wants the team to change their name and trademarked options to prevent anyone else from hogging the names so that he could preserve them for the team. Some of his trademarks include: Washington Americans, Washington Monuments, Washington Redtails, Washington Veterans, and Washington Red Wolves.  Each of these trademark applications have been filed in July 2020 as intent-to-use applications in International Class 041 for “Entertainment in the nature of football games.” 

Interestingly, this same individual filed a number of applications in 2014 for some of these same trademarks, but in different classes of goods, such as, “providing a website featuring information relating to the sport of football,” “Athletic shirts; Sports caps and hats,” and “Duffel bags; Sack packs, namely, drawstring bags used as backpacks; Tote bags.” 

McCaulay has received backlash from people accusing him of being a trademark troll—a term that refers to a person or entity that tries to register a trademark without intending to use it. The fan noted that he sent an e-mail on July 4th to the team offering the names for free. However, McCaulay noted in recent tweets that he might move in the direction of monetary gain, as the team had not replied to his previous free offer. McCaulay is now calling himself “Trademark Hog” on twitter and recently suggested that the team make a charitable donation in exchange for a trademarked name.

The possibility of McCaulay seeing any profit depends on intent to use the names. For instance, if the team happens to select a name already trademarked by McCaulay, the court and trademark office may look at whether McCaulay trademarked the name with the intent of actually using it in commerce.

It is not uncommon to file a trademark application before the trademark is actually used.  When an intent to use application is filed, the applicant’s submission acts as a sworn statement that they have a good faith (bona fide) intention to use the mark in commerce.  That statement is typically sufficient evidence of good faith, and the sworn statement would only be evaluated if the application record clearly contradicts this statement.  However, when a trademark is approved, it is published for a period of 30 days, whereby any party with a “real” or “legitimate” interest in the proceeding may file an opposition.  At that time, the applicant’s good faith could be questioned.

McCaulay appears to be aware of this risk and now has a website where he sells merchandise like glasses and shirts with the various names he has trademarked.  However, it is somewhat unclear how he thinks he could use the marks for the applied-for class of goods – “Entertainment in the nature of football games.”  I do not think that simply putting the mark on glasses or clothing would satisfy that element.  The USPTO will require proof of the mark being used in the applied-for class once he files the statement of use, and I think he is going to have a hard time submitting a specimen that would satisfy that.  Putting the mark on clothing or glassware is not going to cut it.  And, on the off chance that any of his marks did approve and were then opposed, then he would also have to prove his initial intent. 

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Law 4 Small Business, P.C. (L4SB). A little law now can save a lot later. A Slingshot company.

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