FanDuel - WFBC

November 16, 2009

Supreme Court Refuses to Take Redskins Case: On Monday, the U.S. Supreme Court refused to take the appeal of six American Indians who challenged the name of the Washington Redskins on the grounds that it is racially offensive and thus does not merit trademark protection. An appeals court ruled in Harjo v. Pro-Football, Inc. that they waited too long to challenge the mark. The group has another six plaintiffs ranging in age from 18 to 24 who filed a similar claim in a case that's not yet resolved.

posted by rcade to football at 01:15 PM - 32 comments

At least there is one government entity who is staying out of pro sports. Even though this is the one they probably should do something about IMO.

posted by jojomfd1 at 01:22 PM on November 16

As much as I despise the R******* name, I don't think this is the way to make the change happen. Forcing them to change the name has the short term benefit of fixing the problem, but my gut tells me that it creates long term issues.

I think continued public shaming and mockery will eventually win the day. Indeed, I think if more people were to consistently use The Hoser's "Washington Racists" designation to describe them in the public sphere, it would only be a matter of time before they changed if only to lose that label.

posted by Joey Michaels at 02:28 PM on November 16

A registered trademark is a government-granted monopoly to use a term in commerce. Since it is illegal under U.S. law to grant a trademark to a racial pejorative, and many trademark seekers have been denied on those grounds, I think a lawsuit is the right way to fight it. There's no inherent right here that's violated by taking the Redskins mark away from them. Trademarks are a privilege.

posted by rcade at 02:33 PM on November 16

Fair enough! That is a logical, legal argument, as opposed to mine, which is just based on a gut feeling. I think my concern is that if they're forced to change the name legally, they're never going to think they did anything wrong.

posted by Joey Michaels at 02:37 PM on November 16

There's no inherent right here that's violated by taking the Redskins mark away from them. Trademarks are a privilege.

While it's not been litigated or argued to my knowledge, one could make an argument that stripping trademark protection in such a case constitutes a government taking of property in violation of the Fifth Amendment, thus violating an inherent (constitutional) right.

posted by holden at 02:41 PM on November 16

I wonder what would happen if a new party sought a Redskins trademark for a category of commerce that has nothing to do with football.

posted by rcade at 03:24 PM on November 16

I wonder why all of the civil rights and celebrity activists are so silent on this subject.

posted by irunfromclones at 05:34 PM on November 16

Not being a lawyer or constitutional scholar I defer to all the legalese of the issue. Personally I don't understand the furor over it all. The NCAA tried to have the FSU Seminole's mascot and team nickname changed only to have the Seminole Tribe itself make it clear that they were honored to be represented by FSU. Why not have the KC Chiefs name challenged as well? Then we have the Jersey Devils whose name may offend the sensibilities of all the many denominations of the religious. Of course some Irish folks may be offended by Notre Dame's nickname. Do all of the Irish people fight? Lastly we can't have the Somali pirates mad at us,so perhaps the Raiders and Bucs better change their names too. Simply put, when and where does all the PC bullshit begin and end?

posted by wildbill1 at 08:28 AM on November 17

Maybe you should spend a little time learning about an issue before you deride it as "PC bullshit." The term "Redskins" is not an honorific -- it is a racial insult comparable to nigger or sambo. Would it be PC bullshit to take issue with a team that called itself the Sambos?

posted by rcade at 08:36 AM on November 17

You would have even more teams to address as well.. The Cleveland Indains, The Atlanta Braves, Minesota Vikings, Why not even the Greenbay Packers. My gosh when does all the race base claims end. This is now the United States of the Affended.

posted by twgibsr at 09:46 AM on November 17

The claim isn't simply centered around who may or may not be "affended." Native Americans are a suspect class, as they have traditionally been discriminated against and treated as second class citizens. If a couple of you want to learn about the issue, there have been three or four threads per year with some very intelligent dialogue. Most of us have been through this discussion a few times, though, and are fairly tired of answering "pc bullshit" claims and the like. I'd highly recommend looking back at a few before chiming in.

posted by tahoemoj at 10:05 AM on November 17

This is now the United States of the Affended.

Can someone explain to me why you PC Bullshit trolls all appear to be sixth grade dropouts? If I ever get a pro sports franchise, I'm naming it the Flyover State Okie Peckerwoods to see if you all whistle a different tune through your knocked out teeth when the one family shoe you've got is on the other foot.

posted by yerfatma at 10:18 AM on November 17

This is now the United States of the Affended

I think you meant OFFENDED but don't let a little thing like proper spelling get in the way of your ignorance when it comes to race relations and what it means to the people who's nationality is being made a mockery of.

posted by BornIcon at 10:23 AM on November 17

one could make an argument that stripping trademark protection in such a case constitutes a government taking of property in violation of the Fifth Amendment, thus violating an inherent (constitutional) right.

One could indeed make the argument. However, regulatory takings of personal property (as opposed to real property) are very rarely found to be unconstitutional. Additionally, takings are not unconstitutional if "just compensation" is paid.

Then we have the Jersey Devils whose name may offend the sensibilities of all the many denominations of the religious. Of course some Irish folks may be offended by Notre Dame's nickname. Do all of the Irish people fight? Lastly we can't have the Somali pirates mad at us,so perhaps the Raiders and Bucs better change their names too. Simply put, when and where does all the PC bullshit begin and end?

This is more than a little silly. The issue is not whether it's appropriate to use a racial, ethnic, or national name for a sports team. Rather, the issue is whether a particular mark "[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." 15 U.S.C. 1052. It would be frivolous to argue that any of the names mentioned are deceptive, scandalous, or disparaging (and I'm not aware of the TTAB or any court refusing to register a mark canceling a mark on "morality" grounds). "Devil" is one of numerous names used to describe supposed evil beings or spirits, and I don't think we're going to get a group of persons claiming actually to be devils to challenge the Devils's use of the name. Nor do I believe that any non-trivial percentage of Irish persons finds "Fighting Irish" to be disparaging? Nor can one say with a straight face that the use of "Raiders" or "Buccaneers" for a football team (as opposed to their actual conduct) brings the Somali pirates into disrepute.

Maybe you should spend a little time learning about an issue before you deride it as "PC bullshit."

Having knowledge of the issue doesn't necessarily remove it from the category of "PC bullshit." Indeed, having knowledge can push an issue further into that category. Interestingly, here, the petitioners' own survey evidence found that a significantly higher percentage of the general population found the term "redskins" to be offensive than did so-called "native Americans" (a term which is, itself, misleading and misdecriptive).

Given the basis for the Court of Appeals's decision, it's hardly surprising that the Supreme Court denied cert, concluding that the matter was not of sufficient "importance" to warrant review.

posted by zddoodah at 10:35 AM on November 17

don't let a little thing like proper spelling get in the way of your ignorance when it comes to race relations and what it means to the people who's nationality is being made a mockery of.

But by all means do allow something like a trivial misspelling to detract from the actual substantive issue.

posted by zddoodah at 10:36 AM on November 17

Given the basis for the Court of Appeals's decision, it's hardly surprising that the Supreme Court denied cert, concluding that the matter was not of sufficient "importance" to warrant review.

Where do you get that the Supreme Court made a value judgment on the importance of this issue when they denied cert? They denied cert without comment.

Further, as far as I know, it doesn't matter under trademark law what race of individuals find a trademark to be offensive. If Native Americans don't find it to be so for whatever reason, USPTO can (and did) find the term offensive anyway.

posted by bperk at 10:43 AM on November 17

But by all means do allow something like a trivial misspelling to detract from the actual substantive issue.

What "actual substantive issue" was that? And where were you the last n times we went over this?

posted by lil_brown_bat at 10:47 AM on November 17

Not that it's particularly germane to this discussion, but the New Jersey Devils are actually named after a local creature of legend rather than holding the religious connection indicated above.

posted by bender at 10:51 AM on November 17

Where do you get that the Supreme Court made a value judgment on the importance of this issue when they denied cert?

Rule 10 of the Rules of the Supreme Court of the United States (http://www.supremecourtus.gov/ctrules/2007rulesofthecourt.pdf) provides that a "petition for a writ of certiorari will be granted only for compelling reasons." It further provides (and the well-known reality of how the Court considers and rules on cert petitions confirm) that petitions are granted only (a) where the lower court decided "an important federal question" in a manner that conflicts with a decision by another federal Court of Appeals or a court of last resort of a state, or (b) where the lower court "has decided an important question of federal law that has not been, but should be, settled by this Court, or . . . in a way that conflicts with relevant decisions of this Court."

Therefore, the denial of cert -- even without comment (which is the case in almost all cert denials) -- tells us that Court believed that there was no conflict and/or that the issue was not sufficiently "important." The single issue presented for the Court's consideration in the cert petition (which you can read here: http://turtletalk.files.wordpress.com/2009/09/final-petition-for-writ-of-certiorari-2276866_1.pdf) was "[w]hether the doctrine of laches is applicable to a cancellation petition filed pursuant to Section 1064(3) of the Lanham Act." Although the petitioner argued that there is a split in the circuits on this issue, I'm not sure you'd find a whole heck of a lot of folks who would consider the applicability of laches to a Lanham Act cancelation proceeding to be, on the grand scale of things, "an important question of federal law."

posted by zddoodah at 12:28 PM on November 17

Further, as far as I know, it doesn't matter under trademark law what race of individuals find a trademark to be offensive. If Native Americans don't find it to be so for whatever reason, USPTO can (and did) find the term offensive anyway.

As noted, section 1052 does not use the term "offensive." The question on which the TTAB originally ordered the mark canceled was whether the mark "may disparage . . . persons, living or dead . . . or bring them into contempt, or disrepute." One of the tests for making that determination is how the group in question views the mark. That's why the challenge to the U. of Fl.'s use of "Seminoles" didn't go anywhere. If you review the TTAB's original opinion, you will see that about 36% of the "native Americans" surveyed by the petitioner's expert did find the term "offensive," and the TTAB found that to be sufficiently significant for purposes of the section 1052 challenge. Had the evidence indicated a much smaller percentage, it is unlikely that the TTAB would have reached the same result. I merely noted (because I find it somewhat interesting) that the survey indicated that non-Indians were more likely than Indians to view the term as offensive. I find it interesting because I think it says something about the false paternalism so often involved in these sorts of issues.

posted by zddoodah at 12:36 PM on November 17

where were you the last n times we went over this?

Beats the hell out of me (seeing as how you haven't provided any information regarding the dates/times of "the last n times we went over this"), and I don't see why that's relevant. As far as I know, this is a public message board where folks can and do come and go as they please.

posted by zddoodah at 12:39 PM on November 17

You'll have to pardon some members if they're a bit tired of having the same argument with a new cast of knuckleheads. Some previous threads if you like repeats.

posted by yerfatma at 01:27 PM on November 17

I find it interesting because I think it says something about the false paternalism so often involved in these sorts of issues.

If it says something, then come out and say it directly. I don't see anything paternal about the desire to stop treating Native Americans as a stereotype for degrading sports mascots. It's simple respect.

As for past discussions here, see Native Americans Ask Supreme Court to Sack Redskins Trademark for the last time the issue came up and was discussed at great length.

posted by rcade at 01:29 PM on November 17

Therefore, the denial of cert -- even without comment (which is the case in almost all cert denials) -- tells us that Court believed that there was no conflict and/or that the issue was not sufficiently "important."

Yeah, I think that "or" is pretty necessary. The court may have decided to deny cert because lower courts hadn't ruled on the issue enough, not based on whether the matter was of sufficient importance. There is no way to know why the Supreme Court accepts what they do, so I think it is a huge leap to declare that the Supreme Court found the issue not sufficiently important.

One of the tests for making that determination is how the group in question views the mark. That's why the challenge to the U. of Fl.'s use of "Seminoles" didn't go anywhere.

I'm not sure what you are getting at here. Are you saying that if Native Americans find the term Redskins offensive at a smaller rate than the general population, the term is not disparaging under trademark law? I thought it was merely additional evidence just as a general survey would be.

I don't think there ever was a trademark challenge related to FSU's use of the mascot.

posted by bperk at 02:02 PM on November 17

so-called "native Americans" (a term which is, itself, misleading and misdecriptive)

false paternalism so often involved in these sorts of issues

Not that you are rare, but you don't expect to find such a highly educated and refined racist. But then again, just look at how the British thought of the wogs in their empire.

Not that it will dent your racist reasoning, but since the American Indians have a deep and abiding distrust of whites in general and the government in particular, few if any would give an honest answer to such a survey or indeed respond to it at all. The results are scarcely the barometer of American Indian views that you want to believe it is.

I note also that racists always bring up the U of F's Seminoles as an example of how American Indians are ok with how they are "honored" or portrayed by whites. The image is not the type of rude caricature as used by the Cleveland Indians, nor is the mascot. The university negotiated to gain agreement for use of the name with the Seminole Tribe of Florida. The Seminoles officially approved the relationship and details of the images and costumes before they could be used.

I can excuse to some extent the rednecked, beer bellied, mullet headed, gap toothed, wife beater shirt wearing racists due to their lack of education. But it's apparent that in your case a higher education merely allows you to express your racist views in a more eloquent fashion than most.

posted by irunfromclones at 02:08 PM on November 17

I'm not one of those hardcore "eliminate all team names associated with Native Americans" types. I see two major issues in current U.S. professional sports.

One is Chief Wahoo, but we've already discusses an appropriate solution to him.

The other is the team name "R*******."

We've discussed this at length, but what's at issue here isn't the number of Native Americans who are offended by the word 'R******." I hope irunfromclones doesn't mind if I quote him from that Chief Wahoo link, but he summed this up better than I ever could (bold text was added by me):

In the case of Native Americans it bothers some and it does not bother some others. Just like everything. It is just the vocal ones, usually a minority ( and I am not saying the Native American issue is created by a minority of them) that create the illusion that it offends the entire group.

Which in itself is an illusion. It's just a vocal minority of blacks that object to Little Black Sambo, right? I am a Native American (Cherokee), and I partake in many of the Nations forums and discussions. The vast majority of us are offended by the Indians logo and the Washington Redskins name. But we know that it demeans you more by continuing to use and defend them. Other than the logo, we don't have a problem with the name Cleveland Indians. I have more of an issue with people making accusations of it being overly PC just so that they can excuse their racism. It took years of lobbying, discussion, boycotts, and economic sanctions before the University of Illinois removed one of the more blatant, stereotypic, offensive mascots in all of sports- their "Chief Illiniwek". What still amazes me is how even highly intelligent and very well educated people could possibly believe that a half naked white boy dressed in buckskin and a chief's headdress jumping wildly up and down somehow "honored" Native Americans. I am however, highly gratified by the general response in this and many other spofi threads on this theme by the majority of contributors. You may keep your scalps.

To whit, using "R*******" as a team name is demeaning to Washington, its demeaning to the NFL and, ultimately, its demeaning to the USA.

No matter how you slice it, we don't have teams named "Yellowskins" with a Chinese mascot or "Blackskins" with an African mascot. "Redskins" is purely an insult. Ask yourself - if you were in a business meeting with a Native American that you'd not previously met, would you be comfortable calling him a redskin to his face? Do you think that would help you in your business relationship? If the answer is "no, I probably wouldn't do that," then chances are you recognize that the word is insulting.

Logically, then, it stands to follow that that word shouldn't be a team name.

As I said, it demeans Washington and the NFL to continue using it. It makes them seem like that guy in your office who insults everyone without realizing it and then takes offense when they're offended. Nobody wants to ask that guy out for a beer after work.

posted by Joey Michaels at 02:45 PM on November 17

I merely noted (because I find it somewhat interesting) that the survey indicated that non-Indians were more likely than Indians to view the term as offensive. I find it interesting because I think it says something about the false paternalism so often involved in these sorts of issues.

Having met Suzan Harjo, I don't particularly give a tinker's damn what the survey allegedly "indicated". An intelligent, sincere, thoughtful Native American woman who is not inclined to seize opportunities to take offense, finds the use of this term offensive and gives cogent arguments as to why that is, and that's enough for me. I don't feel the need to demand that a plurality of Native Americans express similar sentiments, and then prove to me that they're not under the influence of "false paternalism".

yerfatma gave you a link to previous threads, and Joey Michaels has quoted from a post in one of them. Now I'll give a paraphrase of a sentiment that many expressed in those threads: if you feel that those who object to Native American stereotypes are creating a tempest in a teapot, how to you justify your own treatment of a sports team mascot like it was the Holy Grail? You're treating the equivalent of a golliwog like it was something to cherish and be proud of. You just don't know how primitive that makes you look.

posted by lil_brown_bat at 06:37 PM on November 18

I don't particularly give a tinker's damn

Hey!

posted by yerfatma at 08:40 AM on November 19

My apologies, yerfatma...didn't realize we had any of the Traveling People among us.

posted by lil_brown_bat at 08:41 AM on November 19

I don't think they're trying to protect a mascot from extinction so much as they are rebelling against what they see as being bullied because of some people's sensitivity. That's my opinion because that's where I came from on this argument. It took me deciding that I don't have a say in what people find offensive for me to see the other side on this issue.

It's all still frustrating. I grew up near the Menominee and Mohican reservations in Wisconsin and I don't recall ever hearing 'redskin' used a slur. I didn't know the word was problematic until it came up here. From seeing the threads here I definitely wouldn't use it again but I wouldn't have thought anything of it's usage a few years ago. I'm mostly frustrated with how something becomes a slur. What does it take? Is it just when people use a term with hatred behind it? There doesn't appear to be anything in the actual word that would suggest a negative connotation.

posted by tron7 at 11:30 AM on November 19

I'm mostly frustrated with how something becomes a slur. What does it take? Is it just when people use a term with hatred behind it?

...and do so persistently enough that it acquires negative connotations in the minds of others. I'd say that's a pretty good definition.

posted by lil_brown_bat at 01:01 PM on November 19

From seeing the threads here I definitely wouldn't use it again but I wouldn't have thought anything of it's usage a few years ago. I'm mostly frustrated with how something becomes a slur. What does it take?

When Washington changed its mascot to Redskins in 1933, there had been more than a century in which Americans talked about Native Americans like this: The Danger of Employing Redskins as Movie Actors. It didn't become a slur. It was a slur from the first time it was used.

posted by rcade at 10:17 AM on November 20

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