By: Katherine Oaks on 07/03/14
Photo credit: Chris Staley https://www.flickr.com/photos/cmstaley/
On June 17, 2014, the United States Patent and Trademark Office canceled the trademark registration belonging to the Washington Redskins for the team’s name. While this decision appears to manifest decades’ worth of efforts to derail socially accepted racial slurs and derogatory labels, the true impact falls pitifully short of the name change petitioners and advocates are fighting for.
Not the First Time
This is the second time that the Trademark Trial and Appeal Board has been asked to address the legality of the name “Redskins.”[i] The first time was in 1992 when seven Native Americans filed a similar petition to the Board claiming that the name disparaged Native Americans.[ii]
In the 1992 case, the Board found there was disparagement, but on appeal to the United States District Court for the District of Columbia, the decision was reversed both for a lack of substantial evidence and because the doctrine of laches precluded the case from being considered on its merits.
In response, the DC Circuit Court sent the case back to the District Court to consider whether the affirmative defense of laches applied.[iii] Without addressing the actual question of disparagement, the District Court found that the 1992 case was indeed precluded.[iv]
Photo credit: https://www.flickr.com/photos/confrontationalmedia/
On to New Times
The current petition put forth the exact same claim of disparagement, and again, the Board found in favor of the Native American plaintiffs.[v] However, this decision could survive on appeal because the Board indicated in its decision that this proceeding “presents significant differences from the first.”[vi] Notably, the first case relied on the application of tribal sovereignty and Indian Trust Doctrine.[vii]
The instant case involved a simple two-step inquiry to determine whether or not the term “Redskins” is disparaging to Native Americans.[viii] First, determine the meaning of “Redskins” is as it appears in marks and is used “in connection with goods and services identified in the registrations.” And second, determine whether this meaning “may disparage Native Americans.”[ix]
The Board found that both parts of the test are supported by substantial evidence in this case because the name Redskins is clearly associated with Native Americans, as evidenced by a significant historical effort to express the connection between the two through publicity and imagery. Further, the petitioners brought forth expert reports, testimony, and a great deal of evidence to demonstrate that the label “Redskins” is considered by many to disparage Native Americans.
So, Now What?
The trademark registration remains legally intact until the respondents’ appeal is decided.[x]
There are three questions to consider at this juncture regarding the future of the Washington Redskins team name. First, must the team change its name in light of the Board’s decision? Second, if the team chooses to keep its name, what are the specific ramifications of the trademark revocation? Finally, and most ambiguously, if the Board’s decision is affirmed on appeal will the team change its name anyway?
The answer to the first is an emphatic no. Second, the only thing that would change pending the outcome on appeal is the protection that a federal trademark registration affords the team: the right to legally preclude others from using the name “Redskins.” The absence of a trademark registration opens the door for any and all manufacturers and vendors to produce and sell merchandise with the name “Washington Redskins” without fear of a lawsuit. Apart from the risk of merchandise competitors, the possibility of another NFL football team taking the name exists in theory, but in reality need not be considered.
The most important question remains, which is whether the team will find a new name in response to the Board’s decision. For one thing, having a federal agency declare an NFL team name “disparaging to Native Americans” makes keeping the name a difficult decision to defend. Critics cannot even agree that the name is racist.[xi]
Some say it is outrageous to claim “Redskins” does not disparage Native Americans, while others say to change the name would dishonor history and the majority of Native Americans who do not find it offensive.[xii]
Washington Redskins owner Daniel Snyder sees it all a little bit differently.[xiii] Snyder addressed fans this past year regarding the name, saying specifically that he remembers growing up a Redskins fan at a time when the head coach himself was a Native American who saw the name as a “symbol of pride.”[xiv] Times have changed and political correctness has swept this country with perfectionist fervor, the Redskins’ name is now considered by many to be racist and derogatory.
Even though there was no degrading intent behind the name when it was created, and it does not offend most Native Americans, should the name change anyway?
The bottom line is this; the law does not require Snyder to change the name. If he decides to change it, it will be out of respect for the less than 20% of Native Americans who are offended by the moniker.[xv]
To clarify, a name change will likely be the result of Snyder caving to public and political pressure.[xvi] After all, the NFL relies on its fan base and if the fans aren’t happy with the name, everyone loses. If Snyder keeps the name, that is well within his rights and the prerogative of the Washington Redskins.
[i] See Amanda Blackhorse, Marcus Briggs-Cloud, Philip Gover, Jillian Pappan, and Courtney Tsotigh v. Pro-Football, Inc., 2014 WL 2757516 (Trademark Tr. & App. Bd.) (June 18, 2014) (concluding name “Redskins” disparages Native Americans under two part test regarding meaning and effect).
[ii] See Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96 (D.D.C. 2003) (reversing Board’s holding that “Redskins” disparaging because affirmative defense laches precluded case from being heard on merits).
[iii] See Pro-Football, Inc. v. Harjo, 415 F. 3d 44 (D.C. Cir. 2005) (remanding case to District Court to rule on whether laches did indeed apply).
[iv] See Pro-Football, Inc. v. Harjo, 567 F. Supp. 2d 46 (D.D.C. 2008) (finding laches did bar case from being heard, when remanded from D.C. Circuit Court).
[v] See Blackhorse v. Pro-Football Inc., 2014 WL-2757516 (Trademark Tr. & App. Bd.) (holding “Redskins” disparages Native Americans under two part test).
[vi] See id. at 7 (“While this is the second petition asserting a claim of disparagement against the same six registrations and the parties stipulated to the same record, this proceeding presents significant different differences.”).
[vii] Id. at 7 (indicating first petition relied on Indian Trust Doctrine as governing law). The case at hand also noted that the previous case was too complicated due to the broad amount of issues that needed to be addressed. Id. Further,any hearsay objection in the present case was waived, different than in the first proceedings, “which has resulted in a qualitatively different evidentiary record for us to consider.” Id. at 7 (referring to footnote 32).
[viii] See Blackhorse v. Pro-Football Inc., 2014 WL-2757516 (Trademark Tr. & App. Bd.) (holding “Redskins” disparages Native Americans under two part test).
[ix] See id.at 7 (articulating two part test for disparagement).
[x] See Vargas, Theresa. Federal agency cancels Redskins trademark registration, says name is disparaging (June 18, 2014), available at http://www.washingtonpost.com/local/us-patent-office-cancels-redskins-trademark-registration-says-name-is-disparaging (clarifying that trademark registration remains in full force pending outcome of appeal).
[xi] See Huffman, Joshua, Should Washington Remove R-Word from Team Name? (ATS) (June 24, 2014),http://profootballspot.com/_/nfl/nfc-east/washington-redskins/with-trademarks-cancelled-should-redskins-change-name-r3020 (containing view by one spokesperson, Alex Crowe, who said “[T]he name is racist. Let’s just get that out of the way” while another Charles Barr hesitated on racist nature of term and instead asked why there is outrage about “Redskins” but not “Yankees?”).
[xii] See id. Alex Crowe, Chicago Bears Lead Writer distinguished the Redskins name from those of the Atlanta Braves, Kansas City Chiefs, or Florida State Seminoles as those similarly referenced Native Americans but were not inherently disparaging. Id. See also Blackhorse v. Pro-Football Inc., 2014 WL-2757516 (Trademark Tr. & App. Bd.) (noting that record showed only 17% Native Americans found “Redskins” disparaging).
[xiii] See Vargas, Theresa and Liz Clarke. Redskins owner Dan Snyder makes visits to Indian Country amid name-change pressure (Dec. 21, 2013), available at http://www.washingtonpost.com/localredskins-owner-dan-snyder-makes-visits-to-indian-country-amid-name-change-pressure (discussing team’s position in light of pressure to change name). “As the push for a name change picks up support from new groups and bold-faced names by the week, the team’s management has been vocal about not dropping the 81-year-old moniker, citing tradition and evidence that most Native Americans aren’t offended by the word.” Id. at 2 (emphasis added).
[xiv] See Huffman, Joshua. Should Washington Remove R-Word from Team Name? (ATS) (June 24, 2014), at 3,http://profootballspot.com/_/nfl/nfc-east/washington-redskins/with-trademarks-cancelled-should-redskins-change-name-r3020 (referring to historical trajectory of Washington Redskins, vehemently claiming original intent of owner and team was not racism or disparagement).
[xv] See Huffman, Joshua. Should Washington Remove R-Word from Team Name? (ATS) (June 24, 2014),http://profootballspot.com/_/nfl/nfc-east/washington-redskins/with-trademarks-cancelled-should-redskins-change-name-r3020 (compiling opposing views on issue to demonstrate question is no where close to black and white).
[xvi] See Maske, Mark. Senate Democrats urge NFL to endorse name change for Redskins (May 22, 2014), available at http://www.washingtonpost.com/sports/senate-democrats-urge-nfl-to-endorse-name-change-for-redskins (addressing intentional congressional pressure to change team).