June 18, 2014

USPTO Cancels Redskins Trademarks: The United States Patent and Trademark Office has canceled the Washington Redskins trademark registration, calling the football team's name "disparaging to Native Americans." Federal trademark law does not permit registration of trademarks that "may disparage" individuals or groups or "bring them into contempt or disrepute." The landmark case, which appeared before the Trademark Trial and Appeal Board, was filed on behalf of five Native Americans.

posted by rcade to football at 10:44 AM - 22 comments

Obviously the Washington franchise (and the NFL) is going to appeal this ruling. If they lose, then things get VERY interesting...

The key point:

The ruling does not mean that the Redskins have to change the name of the team. It does affect whether the team and the NFL can make money from merchandising because it limits the team's legal options when others use the logos and the name on T shirts, sweatshirts, beer glasses and license plate holders.

We'll now see how much the Washington franchise really believes in the "historical" value of the name compared to their ability to make money off of that name. It's safe to assume that the money is going to trounce the "history" in a heartbeat.

What are the proposed alternate names?
Warriors? (Or will the NBA block them?)

posted by grum@work at 10:53 AM on June 18

In 2001, Daniel Snyder registered Washington Warriors, supposedly for a prospective Arena League team, but the attempt was abandoned and now others own the mark for football-related commerce.

posted by rcade at 10:59 AM on June 18

Sorry to Washington fans, but I think this is the right decision.

Since the 1930s, U.S. law has forbidden the registration of trademarks that are derogatory to groups such as races, ethnicities and religions. A trademark is a government granted monopoly on using a mark in commerce. In order to get that monopoly, you must follow the rules.

Over the decades many others sought trademarks that, like Redskins, were known slurs. They were denied but Redskins kept being allowed for renewal.

I'm glad the USPTO has ruled that the Washington's NFL team doesn't get to break the rules. Now we'll see if the courts are still willing to let the home team break the law.

posted by rcade at 11:01 AM on June 18

I'm opposed to the Redskins' name. I'm more opposed to big government thought-policing.

posted by TheQatarian at 11:27 AM on June 18

Red Tails! Tuskegee Airmen for a majority African-American city! P-51 flyby during national anthem! US Army Air Force insignia on helmets! Military appeal! Go from most racist to least racist overnight!

Everybody's opposed to thought policing. This isn't that, though.

posted by Hugh Janus at 11:56 AM on June 18

I'm more opposed to big government thought-policing.

There is no "thought-policing" going on here. The Washington franchise can still use that name if they want.

There are limitations on what you can "trademark", including not choosing something someone else already has trademarked, not choosing something that is offensive, and not choosing something that is disparaging to a group or individual.

There is NOTHING to stop the Washington franchise from continuing to use their current name, except their ability to use legal recourse if someone ELSE wants to use the name for their merchandise.

"Thought-policing" is light-years away from this discussion.

posted by grum@work at 11:59 AM on June 18

I'm more opposed to big government thought-policing.

I also am not seeing how this is thought police. A trademark is not speech, it is commerce. The team is free to continue calling itself the Redskins. It just loses special privileges the government granted to it as a registered trademark holder.

Why do you oppose the government refusing to grant a monopoly in commerce on a word that is a known pejorative?

Since a trademark confers significant commercial advantage to a mark holder, a government is obligated to enforce that advantage and punish violators. Any country that established trademarks would by necessity set up rules for words that are not allowed.

Our rules since the Lanham Act in 1946 have not allowed marks that bring groups into contempt. Yet the Redskins were allowed over and over to renew this mark.

posted by rcade at 12:05 PM on June 18

This is a great step, but are other parties really going to step in and flood stores with unofficial team merchandise? And would that stuff really sell?

My thinking is that the NFL will go to the team and tell them that their ability to generate a proper level of logo branded revenue has been irrevocably impaired, and that they have to come up with a new name so that everyone can go back to making money.

Betcha Snyder doesn't have any alternate team names in the top drawer of his desk.

The brisk way out for Snyder would be to pull a Sterling: "The Trail of Tears never happened. Anyone who thinks it did can go to hell. Magic Johnson is not welcome in my stadium. I want four billion for the team".

posted by beaverboard at 12:09 PM on June 18

This is a great step, but are other parties really going to step in and flood stores with unofficial team merchandise?

Given my last trip to a flea market, I'd answer that with a big yes. Anything that's popular generates a crapflood of imitators and legally questionable knockoffs.

posted by rcade at 12:23 PM on June 18

The Trail of Tears never happened. Anyone who thinks it did can go to hell. Magic Johnson is Jim Thorpe's descendants are not welcome in my stadium. I want fourteen billion for the team.

FTFY

posted by grum@work at 12:24 PM on June 18

Worth noting that the Redskins have been stripped of their trademarks before.

And gotten them back, as well (decision here for any jurists in the audience).

posted by Bonkers at 12:40 PM on June 18

The Redskins won that case because of laches. This new case got young plaintiffs who could not lose on those grounds.

posted by rcade at 12:46 PM on June 18

laches?

posted by NoMich at 01:54 PM on June 18

Laches is the principle that a person waited so long to sue it would be unfair to let them do it now. Susan Harjo was 47 when she filed suit against the Redskins trademark in 1992. Since the name had been around over 20 years of her adult life, the court decided she waited too long to make an issue of it.

So a new suit was pursued with Amanda Blackhorse as the plaintiff. She was 24 eight years ago when it was filed so it appears laches does not apply, since she couldn't have sued before the age of majority and that was six years earlier.

Personally, I think laches should not have applied at all, since trademarks must be renewed and each renewal raises the question of the allowance of a mark.

posted by rcade at 02:07 PM on June 18

"I'm really not that interested in where the word comes from, I know how it was used. And it's been used in a disparaging way for at least a couple of centuries. Up to and including the time I was growing up in Oklahoma."

posted by yerfatma at 02:08 PM on June 18

So you're saying we don't need to stinking latches?

posted by yerfatma at 02:09 PM on June 18

Not a lawyer, but from the opinion today:

As explained below, we decide, based on the evidence properly before us, that
these registrations must be cancelled because they were disparaging to Native
Americans at the respective times they were registered, in violation of Section 2(a)
of the Trademark Act of 1946, 15 U.S.C. 1052(a). This decision concerns only the
statutory right to registration under Section 2(a).

(emphasis mine)

So what they will have to prove is that the word was disparaging in 1967. Which will be very, very difficult to do (worth noting that the first District Court ruling that was thrown out by the Circuit Court actually did find that there was not substantial evidence of disparagement as well as a laches issue; the appeal only focused on the laches issue and it was remanded for that-see page 5 of the new ruling).

As Slate noted last year:

Of course, the names of many peoples who have been at war have been used with an intention to demonize or denigrate. That we can find Germans spoken of with malice during World War II, though, does not make German slang or offensive. But the informal usage of redskin seems to have made it especially inviting to the creators of frontier tales.

Such contexts and, more importantly, the violent history of U.S. Indian policy, help explain why the 1898 Webster's Collegiate dictionary labeled red-skin "often contemptuous," as Peter Sokolowski of Merriam-Webster has pointed out. But our lexicographical take on the word remained complicated.

Later volumes of Webster's, in fact, dropped the derogatory label. Webster's Second Unabridged in 1934 and Webster's Third Unabridged in 1961 applied no label at all to redskin. Not that either was famous for its sensitivity: Webster's Second defined Apache as "nomads of warlike disposition and relatively low culture."

Which is why I think this will also be overturned by federal court.

(edited to include link to today's opinion)

posted by Bonkers at 02:26 PM on June 18

So what they will have to prove is that the word was disparaging in 1967. Which will be very, very difficult to do ...

I don't see why that will be hard to prove, since "redskins" has been used as a term of disparagement against Indians for centuries. A quick search of Google Books limited to the 1960s found several books listing the word among other offensive racial, ethnic and national slurs.

They wouldn't have to prove that all uses are disparaging, just that it is considered a term of disparagement.

posted by rcade at 03:44 PM on June 18

Yay!

posted by danostuporstar at 04:10 PM on June 18

First off, it's the name that lost it's trademark today, not the logo. So Flea market vendors will not be able to sell items with their logo, only with the name. Also, the name is still registered, it's just not trademarked anymore. (Basically, you'll see the little circle with an R in it, instead of a "TM" after the name now). I don't think this will cost the Washington franchise very much money at all in the end (as far as marketing and merchandise). Basically, someone could use the Redskin name (since it's no longer trademarked) but since they couldn't use the logo and the name is still registered it would have to appear they are promoting someone other than the NFL team that currently resides in Washington, D.C.

I really like an idea that I heard on Olbermann (who I usually don't agree with on too many "political type of things"). He suggested that they keep the logos, the uniforms, etc. but change the name to the Washington Americans. The more I thought about it, the more I liked it. What a perfect way to honor the Native American (instead of pretending that you're honoring them with an abusive slur).

posted by jagsnumberone at 12:26 AM on June 19

I really like an idea that I heard on Olbermann (who I usually don't agree with on too many "political type of things"). He suggested that they keep the logos, the uniforms, etc. but change the name to the Washington Americans.

I keep coming back to this idea today. It's brilliant.

posted by rcade at 05:20 PM on June 19

Yeah, I would cheer for The Americans with no changes.

posted by Joey Michaels at 08:55 PM on June 19

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