Don Terry doesn't like the current name of the Washington football team. He hopes it goes away. And if that ever happens, he'll try to get paid.
Terry is a trademark prospector in the Redskins name squabble. He has registered "Washington Warriors" with the U.S. Patent and Trademark Office. According to Terry's filing, the trademark on the phrase would be used for: "Entertainment in the nature of football games; Entertainment, namely, organizing and presenting football games before live audiences and which may be broadcast via television, radio, global computer networks, satellite and wireless networks." It also lists player and cheerleader uniforms, and "printed event admission tickets."
In other words, he wants to own the name of the local football team.
He doesn't own the team, of course. Dan Snyder does. And Snyder owns the trademarks on the team's name. For now.
But Terry's timing is pretty good. His application for "Washington Warriors," though filed last year, wasn't published by the USPTO "for opposition" until Tuesday. If no petitions are filed during the opposition period, which lasts 30 days unless an opposer requests an extension, the registration will likely be issued to Terry. The day after the opposition period commenced, we now know, the USPTO stripped Snyder of six of his Redskins trademarks, potentially throwing his breadwinner's name out into the public domain, meaning anybody could sell Redskins jerseys and Redskins cheerleader uniforms.
Snyder has appealed the USPTO's ruling. But if the cancellations stand, or if Snyder has a change of heart, the Redskins owner might go looking for a new name. Terry's ready.
"I'd be honored if Mr. Snyder or anybody else approaches me about it," he says, "and we can talk."
Terry, who declines to give his age or his profession, says he's a D.C. native and has rooted for the local NFL team his whole life. But he's never been fond of the name, and he attributes his distaste to his family's "Native American roots." As the debate over "Redskins" heated up last year, Terry decided to, well, take ownership of the name situation. He and Carol Glass, another D.C. resident who Terry says is a like-minded friend, put some money together and registered their favorite substitute. Glass did not return a request for an interview made via Terry.
"I do believe it's time for a change, and I think ['Washington Warriors'] fits," Terry says. "It still honors a tradition that's been established, it can incorporate the current logo, and the current song—just put 'Warriors' in there and it still rolls. It's a win-win."
Terry would not disclose how much he'd want for the name, and neither would he say how much he spent on the prospecting. The minimum USPTO fee for filing a trademark is $325. The attorney of record listed on Terry's USPTO filing is Raj Abhyanker. He's the founder of LegalForce RAPC, also known as Trademarkia, a California-based online and storefront operation that takes a very non-intellectual approach to marketing intellectual property registration services (company slogan, found on spam emails, among other places: "Trademark Registration - Best Prices, Fast & Easy Process!"). Speaking at Stanford in 2012, Abhyanker said Trademarkia was "on pace to file over 21,000 trademarks this year, more than any other law firm in the history of the United States."
Terry's not the only name prospector to get in the game since this latest Redskins imbroglio began. In May, for example, a Philip Martin McCaulay of Alexandria, Va., registered "Washington Warriors," "Washington Bravehearts," just plain "Bravehearts," "Washington Original Americans," "Washington Sharks," "Washington Americans," "Washington Pigskins," and just plain "Pigskins." McCaulay's filings, however, indicate he just wants to use the names on wares related to a football team—clothing, footballs, and "foam fingers and hands" among them—but make no mention of using the marks on an entertainment enterprise. He announced a Kickstarter campaign last month to sell some of those wares. As of this writing, total sales of McCaulay's products had reached $0.
And in the fall, reports surfaced that a Maryland businessman named Aris Mardirossian had trademarked "Washington Bravehearts." Because Mardirossian's Potomac, Md., domicile is near Snyder's, skeptics thought he might be a shadow registrant for a potential substitute trademark, acting on the owner's behalf. But Mardirossian, who has also authored a book called God I Trust, America I Love and has unsuccessfully attempted to get trademark protections for various pig images and a family shield, has done nothing in recent months to further that speculation. "Bravehearts" is a dumb name, anyway.
Terry's pick, "Washington Warriors," has to be considered the clubhouse leader for the next name of a Snyder-owned football team for at least one reason: Snyder himself has picked it in the past for such a use.
He applied for "Washington Warriors" in March 2000, during his early days as owner of the Redskins. And his filing came within a year of the first time the USPTO stripped the Redskins of several trademarks. Snyder said at the time that the new name would be used for an arena football team, the plans for which he'd announced a year earlier. But he never made any move toward actually launching an indoor squad after that announcement. I always figured he was keeping the name on deck just in case the feds' decision held up and he indeed lost his marks. That never happened, however, as the USPTO's edict was overturned on appeal in 2003.
Snyder, with his trademarks out of danger, lost interest in "Washington Warriors." The government ruled that he'd abandoned that mark as of Oct. 31, 2004. The gold-arrow-with-feathers logo he'd introduced for his alleged arena franchise had already shown up on "throwback" outfits for his NFL squad by then.
The AFL decided it liked Snyder's hypothetical team name and applied with the feds for ownership of "Washington Warriors" in May 2007. That caught the Redskins by surprise, apparently, since the team went back and registered just plain "Warriors" two months later. The Arena Football League quit playing in 2008, and its "Washington Warriors" trademark was declared dead by USPTO in March 2009.
However, the Redskins still own "Warriors," and it's live.
What this means is that the odds are long that Terry will ever get rich off his adopted brainchild. Douglas Kenyon, a partner in the Raleigh, N.C., office of Hunton & Williams specializing in trademark law, said that this sort of prospecting on intellectual property is not a good bet, and it could end up costing him real cash.
"Under U.S. trademark law, an applicant for a trademark not yet in use must declare under penalty of perjury that it has a bona fide intent to use the mark in commerce," Kenyon said, speaking in general terms, not specifically about Terry's situation. "I'd say it's rarely very profitable and the downside risk of getting caught in expensive and time consuming litigation is significant."
Mitesh Patel, manager of LegalForce RAPC's trademark practice, agreed that futures trademarking is not usually a good way to go. "If I file for the exhibition of football games, I actually have to have football games," said Patel, again talking in general terms not specific to Terry's venture. "You can't squat on trademark rights without using it or showing proof that you're going to use it."
So if Snyder does ever decide he wants "Washington Warriors," he could petition his friends at USPTO to have Terry's grip on the phrase loosened, much like opponents of the Redskins marks did successfully. Or he could go into federal district court and file a suit attacking the validity of the registration. The apparent lack of intent to inaugurate a football team with that name could hinder Terry's ability to hold onto it.
Terry, however misguided his approach, seems genuine in his desire for his favorite pro football team to change its name. He didn't use the word "Redskins" once in our conversations. Of course, Terry's sincerity won't matter a bit to Snyder, who is reputed to be litigious—he filed a libel suit against me in 2010—but surely there's a small part of the owner who can appreciate the man's initiative. The owner has shown signs of being a trademark hoarder himself, after all. In January 2007, Snyder tried to trademark "You Are Here" for Six Flags while ushering the massive amusement park chain into bankruptcy. Really. "You Are Here." Didn't work.