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  #51  
Old 06-18-2014, 08:39 PM
Merneith Merneith is offline
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I think they should change the name to the Washington Idahos.
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  #52  
Old 06-18-2014, 09:15 PM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by Acsenray View Post
The previous action lost on laches because the court said that the petitioners had spent too much of their adult lives not petitioning for cancellation.
My major question on the difference between a registered and unregistered trademark has been answered so I only have a question about the quoted part above.

I am having a hard time parsing that. How was this group fighting this trademark deemed to have been ok on the taking so long to challenge this?
  #53  
Old 06-18-2014, 09:20 PM
Northern Piper Northern Piper is offline
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The plaintiffs in this case were all minors when the trademarks were registered and therefore laches does not apply until they reached the age of majority and could begin the action.
  #54  
Old 06-18-2014, 09:21 PM
Whack-a-Mole Whack-a-Mole is offline
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I think they should change the name to the Washington Idahos.
Saw this on Twitter. Think it is perfect:

Top Conservative Cat @TeaPartyCat 8h
#NewRedskinsName The Washington Supremacists
  #55  
Old 06-18-2014, 09:29 PM
Whack-a-Mole Whack-a-Mole is offline
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The plaintiffs in this case were all minors when the trademarks were registered and therefore laches does not apply until they reached the age of majority and could begin the action.
To be clear I believe you on this explanation. What follows is my incredulity at the rationale of the court.

How the hell can that be? I think it is safe to say there were adult native Americans living at the time who did not see fit to challenge the trademark.

Is the court suggesting that each new generation can challenge a trademark if they were not alive or of age to challenge it when it was granted? That seems crazy and would seem to make a joke of "laches" mentioned earlier.

Again, I am NOT arguing about the facts of what happened. Just expressing dismay at the reasoning. Hopefully someone can explain to me how it all really makes sense.
  #56  
Old 06-18-2014, 09:51 PM
Acsenray Acsenray is offline
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Redskins Trademark may be canceled.

An equitable doctrine like laches can apply only to individuals before the court.

In the earlier action, the appeals court counted the number of years from the petitioners' 18th birthdays and said "you've waited too long. You don't have standing to pursue this claim."

Since laches is a standing issue, there was never any consideration of anything else in the matter. The only question answered was that these petitioners couldn't go forward with their claims.

So in the current action they found younger petitioners, who wouldn't be barred by laches.

It's not really an injustice of any kind because once you do get past the standing issue and find one set of petitioners that can press the substance if the claim, the question is still the same -- "Were these terms disparaging at the time they were registered?"

Once that question gets a final answer -- whether it's yes or no -- you can't have repeated generations of petitioners going back for another try.

Last edited by Acsenray; 06-18-2014 at 09:53 PM.
  #57  
Old 06-18-2014, 10:04 PM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by Acsenray View Post
In the earlier action, the appeals court counted the number of years from the petitioners' 18th birthdays and said "you've waited too long. You don't have standing to pursue this claim."

Since laches is a standing issue, there was never any consideration of anything else in the matter. The only question answered was that these petitioners couldn't go forward with their claims.
But by this rationale it seems you will always have younger petitioners available to bring a lawsuit. There will always be someone who wasn't alive when the trademark registration was granted but upon reaching the age of majority wants to sue to have that undone.

Given this why couldn't I (or probably someone closer to 18 than me) be able to bring a lawsuit against Coca-Cola to remove their 1893 trademark grant (pretend for the sake of argument)?

Last edited by Whack-a-Mole; 06-18-2014 at 10:06 PM.
  #58  
Old 06-18-2014, 10:27 PM
Acsenray Acsenray is offline
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But by this rationale it seems you will always have younger petitioners available to bring a lawsuit. There will always be someone who wasn't alive when the trademark registration was granted but upon reaching the age of majority wants to sue to have that undone.
Standing isn't the sole legal doctrine that prevents a court from reaching the merits of a claim. There is, for example, the doctrine of collateral estoppel, or claim preclusion.

Say this current action goes all the way up and the valid final judgment is -- "no, these trademarks were not disparaging at the time they were registered."

And then another person comes along with a new cancellation petition on the same question, the court's going to say "Pro Football Inc. already has a valid final judgment on this question from before. Collateral estoppel applies. This claim is precluded." End of story.

Quote:
Given this why couldn't I (or probably someone closer to 18 than me) be able to bring a lawsuit against Coca-Cola to remove their 1893 trademark grant (pretend for the sake of argument)?

Maybe you could have someone try it -- once -- if it had never been brought up before. I can't off the top of my head rattle off every possible challenge to such a claim, because this is a complex question of civil procedure -- we're no longer talking about intellectual property law, which is what I know about.
  #59  
Old 06-18-2014, 10:40 PM
UltraVires UltraVires is offline
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IANATL but it would seem that these younger petitioners would have no standing because of no harm alleged. If the question is "was the trademark offensive in 1967?" and the Petitioner wasn't even alive in 1967, then he cannot claim harm from the 1967 registration.

He may claim that the ongoing existence of the trademark disparages him, but it seems that isn't the proper question. By allowing younger petitioners to bring this claim it creates an absurdity in the courts. As Whack-A-Mole noted, perhaps a 40 year old might not be able to bring an action against the Coca-Cola corporation because he has waited 22 years past his 18th birthday. But a 19 year old could bring litigation claiming harm from a registration that happened over 100 years ago?
  #60  
Old 06-19-2014, 07:40 AM
Acsenray Acsenray is offline
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IANATL but it would seem that these younger petitioners would have no standing because of no harm alleged. If the question is "was the trademark offensive in 1967?" and the Petitioner wasn't even alive in 1967, then he cannot claim harm from the 1967 registration.


The provision of the statute authorizing cancellation petitions, Section 14(3), doesn't require a showing of personal harm. It permits anyone at any time to argue that the term was disparaging to a substantial component of the relevant population at the time it was registered.

This has been limited by the equitable doctrine of laches to prevent some people from having standing, but there's no way to insert a personal harm requirement where it clearly was intentionally left out.

And why was it intentionally left out? Because the policy consideration behind the cancellation provision is that the law doesn't want a registration to continue to exist if it should not have been granted in the first place. The law wants to encourage people to challenge bad registrations.

And this doesn't just apply to the notion of disparaging or offensive terms. It also applies to other things that make a registration bad, like genericness. Indeed. With genericness, you aren't restricted to whether the term was generic at the time of registration. You can argue that it has become generic.
  #61  
Old 06-19-2014, 08:34 AM
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They would just be unable to stop unauthorized uses -- like bootleg T-shirts and other branded goods.
And even then they can still stop anyone from using their logo, colors, font, & cet. which are still protected by copyright laws. I'm not sure how much of a market there is for white t-shirts that say "Washington Redskins" in Arial font. I'm sure there's some, but I suspect their merchandizing isn't going to be hurt as much as everyone is assuming.
  #62  
Old 06-19-2014, 08:38 AM
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I see this as the same as taking away the trademark protection for the NAACP.

Not saying that has happened or will, but I know many Blacks that find the term Colored very offensive. With no regards to the history of the name, the original intent, or anything else, The fact is that term is offensive to many.
  #63  
Old 06-19-2014, 09:15 AM
Northern Piper Northern Piper is offline
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And even then they can still stop anyone from using their logo, colors, font, & cet. which are still protected by copyright laws. I'm not sure how much of a market there is for white t-shirts that say "Washington Redskins" in Arial font. I'm sure there's some, but I suspect their merchandizing isn't going to be hurt as much as everyone is assuming.
I think you're confusing copyright with trademark. Trademark covers logo, colours, fonts - is that correct, Acsenray?
  #64  
Old 06-19-2014, 09:52 AM
Marley23 Marley23 is offline
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I see this as the same as taking away the trademark protection for the NAACP.
This is so tacky I'm surprised I haven't heard Dan Snyder say it.
  #65  
Old 06-19-2014, 10:59 AM
RTFirefly RTFirefly is offline
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An equitable doctrine like laches can apply only to individuals before the court.

In the earlier action, the appeals court counted the number of years from the petitioners' 18th birthdays and said "you've waited too long. You don't have standing to pursue this claim."

Since laches is a standing issue, there was never any consideration of anything else in the matter. The only question answered was that these petitioners couldn't go forward with their claims.

So in the current action they found younger petitioners, who wouldn't be barred by laches.

It's not really an injustice of any kind because once you do get past the standing issue and find one set of petitioners that can press the substance if the claim, the question is still the same -- "Were these terms disparaging at the time they were registered?"

Once that question gets a final answer -- whether it's yes or no -- you can't have repeated generations of petitioners going back for another try.
Just want to say, I'm enjoying this informal seminar. Thanks for sharing your knowledge on this topic.
  #66  
Old 06-19-2014, 11:18 AM
Acsenray Acsenray is offline
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I think you're confusing copyright with trademark. Trademark covers logo, colours, fonts - is that correct, Acsenray?

Yes. Those are all trademarks. Copyright law is irrelevant to this.

But it is true, the team probably has other registered trademarks that it could continue to enforce, or I'm guessing they do.

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Originally Posted by Tread View Post
I see this as the same as taking away the trademark protection for the NAACP.

1. Note again: the issue is federal registration, not trademark protection broadly.

2. In theory, one could try to do that if: (a) the NAACP holds a federal trademark registration, and (b) one could show that at the time if registration, a substantial component of the relevant population (African-Americans) considered the registered term disparaging.

Indeed, the term "NAACP" was registered in 1982.

However, there is no registration so far as I can tell for "National Association for the Advancement of Colored People."

I would guess that neither term, taken as a whole, was considered disparaging by a substantial component of African Americans in 1982.

I think they would argue—and I'm guessing that they would be successful—that both terms, particularly the abbreviated one—are significantly different in the perception if the relevant population from the term "colored people" by itself.
  #67  
Old 06-19-2014, 12:37 PM
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I'm a fan of the Cleveland Indians, so I'm hoping that this will make them a little nervous about Chief Wahoo. I HATE that damned thing.

Ascenray, in your opinion, should other teams be worried? Like the Indians or the Braves, etc.? Or is the fact that their names are not disparaging (though they may be offensive) too protective?
  #68  
Old 06-19-2014, 12:51 PM
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Just want to say, I'm enjoying this informal seminar. Thanks for sharing your knowledge on this topic.
Agreed - this is a really interesting read!
  #69  
Old 06-19-2014, 12:54 PM
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I'm a fan of the Cleveland Indians, so I'm hoping that this will make them a little nervous about Chief Wahoo. I HATE that damned thing.

Ascenray, in your opinion, should other teams be worried? Like the Indians or the Braves, etc.? Or is the fact that their names are not disparaging (though they may be offensive) too protective?
Wow. I thought the team had given up the Chief Wahoo image, but there it is at the bottom of their MLB home page. Damn.
  #70  
Old 06-19-2014, 12:59 PM
UltraVires UltraVires is offline
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The provision of the statute authorizing cancellation petitions, Section 14(3), doesn't require a showing of personal harm. It permits anyone at any time to argue that the term was disparaging to a substantial component of the relevant population at the time it was registered.

This has been limited by the equitable doctrine of laches to prevent some people from having standing, but there's no way to insert a personal harm requirement where it clearly was intentionally left out.
To pick a nit, laches is an equitable defense and has nothing to do with standing (although I see what you mean). It basically says "You could have brought this suit X number of years ago, but you didn't. I relied on your silence to my detriment (in this case, have marketed the Redskins trademark to such an extent), so it would not be fair to me for you to bring this case after so much time has passed."

So, it's clear from this prior decision that there is an element of examining the particular person who brings the claim. Standing, as in the showing of a particular harm against a petitioner, is a necessary element in every federal case. The Constitution requires it, and courts may not hear abstract cases. So it would seem to me that if Joe Doe, Petitioner, born in 1986, brings this trademark suit, he cannot possibly allege harm from a trademark registered in 1967 when the law specifically limits the question of whether it is disparaging or not to the year 1967.

I would also argue that such a delay violate the substantive due process rights of the trademark holder because as Whack a Mole said, it distorts the intent of Congress by allowing such a challenge (hypothetically) thousands of years in the future. Suppose in the year 2214, the name "Coca-Cola" is a disparaging term for people of South American descent. The trademark holder would be violated due process because he cannot call witnesses to testify as to its meaning in 1893, and most of the evidence of the contemporary meaning of the term is lost.

It's only fair that such a challenge to Redskins should have been in 1967 or shortly thereafter so as to accurately gauge its offensiveness at the time.
  #71  
Old 06-19-2014, 01:06 PM
Acsenray Acsenray is offline
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Originally Posted by jsgoddess View Post
I'm a fan of the Cleveland Indians, so I'm hoping that this will make them a little nervous about Chief Wahoo. I HATE that damned thing.

Ascenray, in your opinion, should other teams be worried? Like the Indians or the Braves, etc.? Or is the fact that their names are not disparaging (though they may be offensive) too protective?

The Indians seem to be slowly phasing out the prominence of their Chief Wahoo trademark. There was some upset among some fans earlier this year when the team designated the block C logo as its primary one. I think they're looking to back away from this issue before it gets too hot for them.

I'm not sure they're guaranteed to make it through unscathed, though, because in team names referencing Native Americans in general have become frowned upon—doesn't the NCAA have a rule about it now?

But under Section 2(a), I suspect that "Indian" or "Brave" by itself is far less likely to seem disparaging than "Redskin." And if Chief Wahoo and Chief Knockahoma aren't prominently used then maybe they'll survive any potential challenge.
  #72  
Old 06-19-2014, 01:22 PM
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It's only fair that such a challenge to Redskins should have been in 1967 or shortly thereafter so as to accurately gauge its offensiveness at the time.

1. It's certainly possible that a higher court might say that there is no fair way to judge the evidence today in terms of how it would have been viewed in 1967-1990. That hasn't happened yet, but I certainly wouldn't rule it out.

2. As far as the due process argument is concerned, you'd have to argue that cancellation of a trademark registration is a deprivation of property under the Constitution.

It's possible, but I don't know that that's a slam dunk, especially if you still hold enforceable trademark rights.

3. I was wrong to say that no demonstration of harm is required. I was reading too quickly this morning when I responded.

The reason that the petitioners are all Native Americans is precisely because a petitioner has to be a "person who believes that he is or will be damaged."

They are arguing that they are being damaged today by the sanctioning of the use of a disparaging term, but their burden of proof on the substantive issue is that the term was disparaging in 1967-1990.

That might seem weird but it's not fundamentally unworkable in a legal context.

It will be interesting to see whether the appeals result in clarification on these points or whether they simply reject the evidence as being inconclusive like last time.
  #73  
Old 06-19-2014, 01:23 PM
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The Indians seem to be slowly phasing out the prominence of their Chief Wahoo trademark. There was some upset among some fans earlier this year when the team designated the block C logo as its primary one. I think they're looking to back away from this issue before it gets too hot for them.
Yeah, they've definitely been using it less and less. I'd like to see them completely retire it. I would be in favor of a name change, too, but it's not nearly the priority for me that getting rid of Chief Wahoo is.
  #74  
Old 06-23-2014, 08:49 AM
Acsenray Acsenray is offline
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Additional info —

The ban on registration of immoral or scandalous marks has been in federal statute since 1905.
  #75  
Old 06-23-2014, 02:48 PM
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I do like the idea of keeping the name Redskins, but changing the image from an Indian to a redskin potato.
  #76  
Old 08-22-2014, 03:07 PM
Jonathan Chance Jonathan Chance is offline
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Just a quick bump to move the debate forward:

The Washington Post editorial page has announced that it will no longer use the word to refer to the NFL team.

The decision doesn't apply to the rest of the paper, but I can see that blowing in the wind.
  #77  
Old 09-05-2014, 11:23 AM
What the .... ?!?! What the .... ?!?! is offline
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I do like the idea of keeping the name Redskins, but changing the image from an Indian to a redskin potato.
Good one!

I came to ask a question in the same vein....... what change might we eventually see? The same logo but the name "Warriors" (or maybe "Noble Savages" ) ?

.....or are those pushing for the name change going to want the logo changed too because it is so closely linked to the name they don't like?
  #78  
Old 09-05-2014, 02:03 PM
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Good one!

I came to ask a question in the same vein....... what change might we eventually see? The same logo but the name "Warriors" (or maybe "Noble Savages" ) ?

.....or are those pushing for the name change going to want the logo changed too because it is so closely linked to the name they don't like?
I believe they want the logo to go too. Also, many Native American activitists consider more neutral names like "Indians", "Braves", and "Chiefs" as offensive (but not as egregious as "Redskins") and want their use ended as well. That's also why "Warriors" probably wouldn't work as a replacement unless the team did what Golden State did and go out of its way to eliminate any connection the name might have with Native Americans (e.g., adopt an Ancient Greek warrior motif).

Incidentally, I read that Dan Snyder is now demanding a new publicly funded football stadium. The current one-FedEx Field--is only 17 years old. I guess that's too old for him.
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  #79  
Old 09-05-2014, 02:31 PM
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Incidentally, I read that Dan Snyder is now demanding a new publicly funded football stadium. The current one-FedEx Field--is only 17 years old. I guess that's too old for him.
Because he didn't build it, it was built by Jack Kent Cooke (whose name Snyder took off of it after he bought the team).

If they do have to change the name, I can only pray they don't put it up for public vote. "The public" are morons; that's how we ended up with the freakin' "Washington Wizards."
  #80  
Old 06-19-2017, 07:34 PM
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Just a quick bump to move the debate forward:

The Washington Post editorial page has announced that it will no longer use the word to refer to the NFL team.

The decision doesn't apply to the rest of the paper, but I can see that blowing in the wind.
Just a quick bump to move the debate forward.

How's the wind?

By that I mean:

(A) The Supreme Court, 8-0, struck down the "disparagement" clause with respect to trademark registration as violative of the First Amendment, and

(B) In the three years since you found an answer "blowing in the wind," I don't think the Post has actually stopped using the name elsewhere. Certainly the sports pages have not, and reporting on the Supreme Court's decision also unabashedly uses the name.
  #81  
Old 06-19-2017, 08:00 PM
Skywatcher Skywatcher is online now
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Because he didn't build it, it was built by Jack Kent Cooke (whose name Snyder took off of it after he bought the team).

If they do have to change the name, I can only pray they don't put it up for public vote. "The public" are morons; that's how we ended up with the freakin' "Washington Wizards."
I can see it now: Gridiron McStadiumface.
  #82  
Old 06-19-2017, 09:50 PM
Acsenray Acsenray is offline
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Because he didn't build it, it was built by Jack Kent Cooke (whose name Snyder took off of it after he bought the team).

If they do have to change the name, I can only pray they don't put it up for public vote. "The public" are morons; that's how we ended up with the freakin' "Washington Wizards."
If I recall correctly, "Wizards" was not the top vote-getter in the public poll. It was the name that Abe Pollen preferred. Those public votes are phony anyway; there's nothing binding about them.

Anyway, Washington has to keep up the tradition of having the worst nicknames:

Redskins: Racist and offensive
Wizards: WTF does this have anything to do with the local area?
Capitals: Boring, unimaginative, and WTF, like a team of seats of government whose logo is a building?
Nationals: Boring, generic, and untrue (they're not the national team, or even a national team of any kind)

So, I've always supported "Americans" for a new name for the Redskins: Boring, generic, and blandly patriotic.

Last edited by Acsenray; 06-19-2017 at 09:51 PM.
  #83  
Old 06-20-2017, 10:51 PM
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Nationals: Boring, generic, and untrue (they're not the national team, or even a national team of any kind)
It's a reference to the Washington's entry in the first professional league.
  #84  
Old 06-21-2017, 06:00 AM
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I still don't see why the team name didn't go back to Senators when they moved the Expos.
  #85  
Old 06-21-2017, 06:22 AM
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I still don't see why the team name didn't go back to Senators when they moved the Expos.
Two reasons:

1. People in the Washington area objected because the District of Columbia isn't represented in Congress.

2. The Texas Rangers, who were the last team to play in Washington as the Senators, still own the rights to the nickname.
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Old 06-21-2017, 06:31 PM
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I know all that. It's still a fucking dumb name.
  #87  
Old 06-24-2017, 02:53 AM
Enuma Elish Enuma Elish is offline
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I still miss the name: Baltimore/Washington Bullets. Though if you google it, it comes up with Wizards responses!
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