Commanders’ trademark application denied, team to respond

The U.S. Patent and Trademark Office has denied the Washington Commanders a trademark for “Washington Commanders,” noting that the name is to be likely confused with an existing trademark and prior applications that were filed before the team tried to register the mark. 

The trademark office’s notice to the Commanders, sent May 18, gives the team up to three months to file a response to the initial decision. In the notice, the office said that the team’s trademark was refused because of “the likelihood of confusion” with the “Commanders’ Classic” — the name of a yearly college football game between Air Force and Army.  

The office also noted the existing applications of “Washington Space Commanders” and “Washington Wolf Commanders,” which were filed in August 2021 by Martin McCaulay — a Virginia-based man who has registered a litany of trademark applications. The office added the team needs to add a disclaimer for “Washington” since trademarks can’t solely claim geography. 

“The trademark office’s recent nonfinal office action is an ordinary course step in the standard trademark registration process,” a Commanders spokesperson said in a statement. “We will respond to the Trademark Office’s office action and are confident that our registration will be issued.”

The spokesperson said that there is “no likelihood of confusion between our Commanders marks” and the Commanders’ Classic college game. Further, the spokesperson said: “We do not believe that any trademark registrations that were obtained by squatters who attempted to capitalize on the Club’s name change should stand in the way of our registrations.”

In 2020, McCaulay denied being a trademark squatter — offering his trademarks to the NFL for free. Darren Heitner, an attorney for McCaulay, said then his client would “gladly do whatever is in his power to clear a path for the Washington NFL team to rebrand itself.” 

McCaulay, who is from Alexandria, started filing trademarks in 2014 in anticipation that Washington would one day have to change its old nickname that had increasingly come to be seen as racially insensitive.

In June 2021, the trademark office initially rejected Washington’s trademark application for “Washington Football Team” because of an existing mark application from McCaulay — only for the team to be eventually granted the mark. According to records from the trademark office’s online database, the Commanders received a registration certificate for “Washington Football Team” as of Tuesday. 

Washington’s application for the “Washington Commanders” was dated Feb. 2, 2022 — the same day the team unveiled its rebrand.

Josh Gerben, a trade attorney unaffiliated with the Commanders, said the initial denial for Washington likely won’t be a problem for the franchise in the long term. He said the issues were “workable,” noting that the name of a college football game is different from a professional football team and that the team could challenge the “validity” of McCaulay’s applications. 

In the short term, Gerben said the office’s refusal could make it more challenging for the team to enforce its name and logo to those who attempt to profit from unofficial memorabilia. But he said under U.S. laws, companies and individuals still have trademark rights for the use of a mark even without a federal registration. 

“As someone that works around USPTO refusals for a living, I would really like my chances here (for Washington),” Gerben said. “I would take this case on in a heartbeat. There are going to have a lot of opportunities to get this resolved.”