For more than 80 years, that team has used the nickname "Redskins." For much of that time, the franchise has made significant use of Native American* imagery. Its helmet logo includes the profile of an Indian chief. Its cheerleaders have, at times, been referred to as the "Redskinettes,"** and have worn the "native garb" of a cartoonish squaw. Its marching band--the only one of its kind in the NFL, if memory serves--wore feathered headdresses for many years.
* - I have usually opposed the use of the term "Native American" when what is meant is "Indian," not because "Indian" is better--it's worse--but because "Native American" really ought to refer to people who are born here regardless of race. It is much better to use the name of the individual tribe, in my view, but sometimes that's not possible. I really like the term they use in Canada--"First Nations person," which manages to be sufficiently generic to be useful while being respectful and descriptive as well. But "Native American" seems to be the preferred term, so I'll use it.
** - A term that is even more epically offensive than its root.
From a technical standpoint, this decision is a lot of flash and very little substance. The TTAB, which is what we trademark lawyers call it, has the power to cancel trademark registrations. But the cancellation of a trademark registration does not obligate the owner to stop using the trademark. Neither does it make it possible in any real sense for someone else to use that trademark without repercussions. In fact, I am hard-pressed in this case to find any real hardship that this decision will have for the Washington NFL team.
The reason for that is that trademark rights are obtained primarily through use of the trademark. Most people are familiar with the concept of "common-law" marriage (still legal in nine states and D.C.): A man and woman living together as husband and wife in those states are considered legally married even if they did not obtain a marriage license. Similarly, a person or business can obtain trademark rights by simply using a trademark, even without getting a formal registration--and, by the way, that's true in all 50 states.
Registration is optional. Getting a federal registration for your trademark is a good idea, because a federal registration will allow you certain advantages and presumptions. For example, you can sue infringers in federal court without any difficulty. (Being in federal court is often an advantage in intellectual property cases, because the judges tend to be more informed about intellectual property issues.) Registration also gives you the presumptive right to use the mark in all 50 states, whereas your common-law rights only extend to the geographic areas where you actually use the mark.
For the Washington NFL team, that means that the common-law rights they have likely extend to every geographic area in the U.S., because their games are regularly broadcast everywhere. So these registrations--and their cancellation--are mostly symbolic.
Some commentators have expressed dismay that the government can cancel a trademark registration because it is offensive. But the USPTO routinely refuses registrations (and occasionally cancels ones that are already issued) because they consist of or comprise:
immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute[.]That language is from section 2(a) of the Trademark Act of 1946. An attorney I used to work with once had to deal with a refusal to register his client's mark because it included "immoral, deceptive, or scandalous matter." The mark was for a nightclub in Charlotte, the name of which was "Ira G. Phartz." My colleague managed to convince the examiner that the name was not pronounced like that and got a registration through.
Anyway, as the TTAB held, the term "REDSKINS," even when used as a trademark in connection with a football team, is indeed offensive to, and disparaging of, Native Americans. I am in complete agreement. The word is a racial slur, even if the people who use it aren't intending it as such. It is long past time for the Washington NFL team to find some other name, just as numerous other teams have done. We need only look to fair Jonesboro, Arkansas, and Arkansas State University, which dumped its "Indians" mascot a few years ago in favor of "Red Wolves," and the result has been very positive for them.
I'm not a particular fan of the Washington NFL team, although I did follow them when I lived there and for some time after. But I have followed the Atlanta Braves for 32 seasons. I don't find "Braves" to be disparaging, although there are some aspects of the imagery historically used at Braves games--Chief Noc-a-homa, I'm looking at you--that are pretty much as bad, and some aspects, like the tomahawk chop and the accompanying cheer, that are close enough to the line, if not over it, that they really ought to be abandoned.
I would fully support a name change for the Braves.
And for the Washington NFL team, it's a no-brainer.
In fact, it would probably be a huge moneymaker, as fans buy merch bearing the new logo.
I suspect that for Dan Snyder, the owner of the team, it's really more about ego. More than anything, he seems to resent being pressured to change the name. I have never understood the mindset that causes some people to dig in their heels when confronted with their bad behavior. I have always been willing to excuse the missteps of others because they may not have realized they were causing offense, but decent human beings change their behavior when they realize it is harming others. Time is running out for Dan Snyder to prove he deserves that label.
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