The Washington Commanders are in the process of being sold, but potential buyer Josh Harris could already have his first problem as the new owner: the team’s name.
The U.S. Patent and Trademark Office denied the trademark application for the Commanders on Thursday, possibly putting the team’s new nickname in jeopardy after one season.
Josh Gerben, a trademark attorney based in Washington D.C., said it’s rare for a professional sports team to apply for new trademarks in a world where trademarks are being filed more than ever before, but he wasn’t surprised by the USPTO’s action.
“They’re trying to get a trademark registered on a single word like Commanders for the name of a sports team. That also comes with all the merch that goes along with that, and there’s some initial issues the PTO cited,” Gerben told USA TODAY Sports.
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Why was the Commanders trademark denied?
The trademarks were denied because of the existence of a trademark for “Commanders’ Classic” and prior applications involving the “Commanders” name, according to USPTO documents.
With the “Commanders’ Classic,” the USPTO cited it “likelihood of confusion” because Commanders’ Classic is used as the name of the annual college football game between Army and Air Force, most recently played at Globe Life Field in Texas in 2022.
The second reason is because of “prior-filed applications” involving a longtime Washington fan in the D.C. area. Martin McCaulay, filed for the trademark “Washington Wolf Commanders” and “Washington Space Commanders” in August 2021, which “precede applicant’s filing date.”
Gerben added it’s worth noting the USPTO cited McCaulay’s filed trademarks because they aren’t registered trademarks, indicating the team would get refusal for the name if it were registered.
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What does this mean for the Commanders?
Without the registered trademark, Gerben said an issue Washington could have trouble trying to take down unlicensed merchandise from second-party dealers like on Amazon, Etsy and eBay.
“The Commanders may find it more difficult, if not impossible, to do that type of enforcement, that could ultimately lead to more unlicensed goods being sold, which in turn could mean less revenue for the team and less profit sharing,” Gerben said.
The Commanders may not have an unlicensed merchandise issue because the team does have certain rights, Gerben said, “but the registration certainly provides a supercharge of any rights that you might have.”
Will the Commanders have to change their name? What’s next?
The next step for Washington could be to write a written response to the USPTO, which Gerben said acts like an appeal, to argue the Commanders nickname wouldn’t cause any confusion with the Army-Air Force game.
“It’s meant to protect consumers from being confused as to who’s offering them a particular product or service. So the question here, at the end of the day, is would a consumer actually think that these two are somehow related, And I think that there’s some pretty good arguments that probably not,” Gerben said.
As for McCaulay, he told The Washington Post in July 2020 he would be open to speaking with Washington ownership about the trademark, and “has no intention to stand in the way of the Washington NFL team,” according to a letter from an attorney retained by McCaulay.
Gerben added the Commanders should be confident about eventually getting the trademark, which could be months to possibly years away. The team and Harris could choose to change the name to something else once the new ownership gets approved, but that would involve going through the name change process all over again and if they want a fresh start with a new name. But the USPTO decision wouldn’t have much influence on another name change, Gerben said.
“I certainly understand why the USPTO would cite those registrations at this point,” he said. “I just think that there’s going to be good arguments the Washington Commanders can make against against that.”
