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 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.
I think you’re confusing copyright with trademark. Trademark covers logo, colours, fonts - is that correct, Acsenray?
This is so tacky I’m surprised I haven’t heard Dan Snyder say it.
Just want to say, I’m enjoying this informal seminar. Thanks for sharing your knowledge on this topic.
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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Note again: the issue is federal registration, not trademark protection broadly.
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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.
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?
Agreed - this is a really interesting read!
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.
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.
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.
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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.
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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.
- 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.
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.
Additional info —
The ban on registration of immoral or scandalous marks has been in federal statute since 1905.
I do like the idea of keeping the name Redskins, but changing the image from an Indian to a redskin potato.
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.
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.
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.”
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.