A REDSKINS football team is Disparaging to Native American Persons and thus Cannot be Registered as a US Trademark

By Dennis Crouch

Blackhorse v. Pro Football, Inc. (TTAB Cancellation No. 92046185)

Today, the USPTO granted the cancellation of a group of trademark registrations that all include the term “Redskins” and that are owned by The Washington Redskins.

Under the law registration may be refused when a mark:

Consists of or comprises 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.

15 U.S.C. § 1052.

In the cancellation proceedings, the challengers (a group of Native American individuals), were able to establish that the mark was disparaging to Native American persons as used in relation to the Professional Football team and thus, as the USPTO writes in a press release “in accordance with applicable law, the federal registrations for the ‘Redskins’ trademarks involved in this proceeding must be cancelled.”

Perhaps the strongest defense put forward by the team owners was that the mark was old, well used, and the subject of significant investment. However, the Trademark Trial and Appeal Board rejected that argument – finding it inapplicable to the particular claimants here since none of them unreasonably delayed in bringing the cancellation action.

The TTAB decision was not unanimous – Judge Bergsman dissented – arguing that the petitioners did not provide sufficient evidence that the marks were disparaging at the time they were registered (1960s – 1990s).

Next steps:

  1. The team owners may ask for rehearing or may take the case to Federal Court where the Supreme Court may have the final word.
  2. A trademark registration is not required in order to use a mark. Thus, the team owners can continue to use the mark. In addition, trademark rights continue to be strongly protected by state law and thus, even if the decision sticks, the team may still have protection in the various states.
  3. Prof Rantanen also points out that the mark may still be protectable under Section 43(a) as an unregistered mark, but that the law is unsettled. One take is here: Renna v. County of Union, 2014 WL 2435775 (D.N.J. May 29, 2014).  

 

168 thoughts on “A REDSKINS football team is Disparaging to Native American Persons and thus Cannot be Registered as a US Trademark

  1. …and before this thread retreats fully into the archives, let me add a thought that Greg Aharonian shared today:

    Apparently, when a research at 3M (Minnesota Mining and Manufacturing, which I think is a cooler name), was trying to create a sticky-but-not-too-sticky adhesive tape for automobile painters, he hit upon some form of glue and cellophane. One version was not sticky enough for the car painters, who supposedly asked “Why so Scotch with the adhesive?”, i.e., why are you being so cheap – can’t you have some more glue? (The alternative history is that one of the car painters told the 3M salesmen to go back to his “Scotch bosses” and ask them to use more glue.

    If we are to cling and stick to every slight (or perceived slight) that language carries, we will need to remove a lot more words in their evolved sense from the trademark rolls.

  2. “Those redskins know this island better than I do me own ship.”

    – Captain Hook (from Disney’s Peter Pan, 1953)

    When he hatched his plan to kidnap Tiger Lily, Captain Hook would not have employed REDSKINS if it was a disparaging term. If the term was widely acceptable in the 1950s, it’s unlikely the term was seen as disparaging by the 1960s.

  3. As a member of the Cherokee Nation, I am happy to see this decision. There are a lot of commentors below that obviously didn’t read the opinion. Of course the Washington Redskins have never intentionally personally disparaged Native Americans. Basically, the word “redskin” was found to be disparaging at the time of registration. Now, if the Redskins had jettisoned the Native American tie, then they would have been ok, but the evidence showed that the term “redskin” as used by the Washington Redskins does and has always referred to Native Americans.

    I personally do not find imagery of Native Americans used as sports mascots offensive, however, you cannot have your team name be a disparaging term for an entire group of tribes and people that have been lumped together by their skin color. That’s just rude.

    Redskin is a pejorative when used to refer to Native Americans. You would never see a news article or story refer to Native Americans as redskins. The Washington Redskins tie their use of the term as a mascot to Native Americans. The mark should fall.

    There are differing opinions among Native Americans. I think that most Native Americans who don’t find the term offensive either 1) appreciate the imagery and honor of having Native Americans represented as a mascot (not including you, Chief Wahoo) and so overlook the slur or 2) accept that the Washington Redskins have essentially redefined the term to not be offensive.

    I do believe that the team means to honor Native Americans. But to many Native Americans the honor comes with too much vinegar.

    1. One of your last points is exactly what the majority opinion misses. The term “Redskins,” as used with the football team, was been completely refined. Even if that term were used in a derogatory manner in other contexts, it is not so when used with a NFL team — and the evidence failed to show that it was offensive at the time of registration. All of the media reports essentially ignore the valid points made by the dissenting judge.

    2. ipwatchdog.com has a good article on this decision regarding the legal basis of the decision. I remember reading this case in law school many years ago.

      There are many sides to this. It does appear that legally there is no basis to invalidate the mark. And, it also does appear likely that the mark is meant to take on a different meaning for the football team. After all, each of the football players is a Redskin (or Raider or Panther) so the name cannot be meant to be so bad as it is what they are calling themselves.

      But, in my opinion, in equity, this mark should go. The law may not support the mark going, but if some people that had their country taken from them and genocidal acts committed against them are offended by the mark, then I say get rid of the mark.

      Of course, what should really happen is the owner should just change the mark and say something like times have changed and now we realize that the mark wasn’t such a good idea. I remember Billy Kilmer. I bet ole Billy would support changing the mark. Wasn’t Riggins part Native American? I wonder what he would say.

      1. Back in that day with the old Redskins I bet they would have said something like, “well, we don’t want to call ourselves Redskins if it is offending the native Americans. That takes all the fun out of it.”

      2. This: “But, in my opinion, in equity, this mark should go. The law may not support the mark going, ”

        I admit I have a tough time writing the words “I agree with NWPA” about anything, but I do agree here.

        I understand what the law says, and based on the dearth of evidence of disparagement (at the time(s) of registration), I think the law demanded a different outcome than we got here.

        .
        But overall, I do not think that any party should be able to appropriate and arrogate to themselves the commercial use of any identifying word of an ethnic or racial characteristic.

        That includes Indian names or other (“Fightin’ Irish” – why do the Irish fight so much? Oh, yeah, they’re all drunkards).

        Even as to those names used with “permission” – the shining example of the Seminoles comes to mind. The officials of the Seminoles have blessed the school’s use and together the two parties reported take much mutual pride in their association. But was every last man jack who can claim to be a Seminole consulted? (Perhaps I go too far here, but how do any “officials” or other governing bodies give permission for an entire group identity??)

      3. Your comment epitomizes modern America. “Yes, we know this is not in accordance with the law, but because we feel so strongly righteous about it, it doesn’t matter.” Do let me know how you and Barry are feeling tomorrow and every day thereafter so that I may know how to order my conduct for the day.

      1. Expression is not explicitly being controlled by mark cancellation.

        The commercial value is certainly being diminished, though. This may lessen the Washington Redskin’s use of the name, if the commercial value in it becomes diminished.

        But it actually frees others to use it in any way they choose (including commercially) – assuming the decision is not again overturned, of course.

          1. ““chilled” – feel better?”

            Not at all, actually.

            Perhaps you could come up with a rational explanation for how a decision by the government to stop prohibiting others (than the registrant) from using a word or phrase in commerce “chills” speech related to that word or phrase?

              1. That’s hilarious. Seriously. And you accuse NWPA of drinking koolaide?

                You remind me of marketers who, when confronted with patent expiry and the terrible, terrible spectre of market competition, whine at me to “just renew the patent!, waaa-waaa-waaaah!”.

                :-)

              2. How is pointing out a real chill “drinking the koolaid?”

                This is nothing at all like “extending the patent” as anyone should know that the patent deal, the Quid Pro Quo, is for a limited time.

                Try again.

              3. “try again”

                Okay, to be plainer for you. I disagree that loss of market exclusivity (and its attendant commercial effects) are not an example of governmental chilling of speech.

                Like the beat, the speech goes on (and on, and on, and on). It is not chilled.

                One’s ability to profit from the speech is affected; there we have no argument.

                P.S. see Mark’s follow-on post. Assuming he is correct, there’s even less of a commercial effect in registration cancellation than I would otherwise have supposed.

              4. Whoops! Oh, for the want of an EDIT key or at least a Preview function.

                I double-negatively gorked my second sentence; please read “are not” as “is”.

              5. You clearly do not understand the scope of what “chilling” means.

                The government is involved here, and even business speech does get some first amendment protection, so you do NOT get to glibly dismiss “chilling” just because that chilling has a commercial aspect.

              6. “even business speech does get some first amendment protection, so you do NOT get to glibly dismiss “chilling” just because that chilling has a commercial aspect.”

                Nice straw man. See straw man burn. Burn, burn, burn nice strawman, burn.

                P.S. I’m one of those guys who closely aligns with the righties on the Court when it comes to commercial speech, so not only did I not make the argument you tried to put into my mouth, I would not have.

              7. Please, it is in no way a rebuttal to anything I wrote. You put nonsense words into my mouth with “you do NOT get to glibly dismiss “chilling” just because that chilling has a commercial aspect.”

                I neither said nor implied anything of the sort.

                This is now past strawman and on to outright prevarication.

                Good day.

              8. Prevarication?

                B$

                Your words: “ I disagree that loss of market exclusivity (and its attendant commercial effects) are not an example of governmental chilling of speech.

                My reply is directly on point to this statement.

                If you had meant to say something else, by all means retract your comment and say what you meant to say.

              9. “My reply is directly on point to this statement.”

                Pure, unmoderated bunk. Your accusation that I somehow glibly dismisses chilling of speech merely because it is commercial is plainly a lie.

                Now, if you’d like to retract your statement “you do NOT get to glibly dismiss “chilling” just because that chilling has a commercial aspect” and admit you were putting words into my mouth, fine.

        1. hmmmm… something about government action that has the effect of “chilling” speech…

          …where have I heard that before….?

  4. I would just like to point out that the evidence has to show that the mark was disparaging at the time of registration — ’67 is the earliest.

    Most every comment here and on the airwaves thinks the issue the TTAB had to decide is whether the marks ARE disparaging NOW.

    Now tell me, please, just how a native American not even born in ’67 even has STANDING to allege that in ’67 they were disparaged?

    On standing, we have “Amanda Blackhorse is a member of the Navajo Nation. She testified that she considers the term REDSKINS in respondent’s marks to be derogatory and is offended by it.”

    So what? Why is this even relevant to the legal issue involved here? We are not cancelling the mark because society has changed and the mark has become offensive. That is not the legal standard.

    The right of cancellation is held, if at all, by the people disparaged by the registration at the time it was registered. Those people said nothing and did nothing. They stood by. They should no longer have a right to sue.

    Newcomers who have grown thin skin should not have a right to assert a cause of action held by their ancestors when those ancestors did not complain.

    Now if the law were different such that if a mark BECOMES disparaging, then everything that happened in this case might be legitimate. But nothing seems right here. The action of the TTAB seems instead to elevate current equity and morality over the law.

    1. It’s called progress, knuckle dragger. Deal with it or move aside.

      Since when have progressives cared what the law was?

      1. Since when have progressives cared what the law was?

        You gotta love your patent txbxggers, folks. They never fail to amuse.

          1. I don’t think he is, anon.

            I am discussing the law, not the facts of this case. I will assume for the sake of argument that the term is in fact offensive today to a significant number of native Americans.

            It is just this, the proof has to be that at the time of registration was it offensive. Now, if there were contemporaneous complaints, that would be the evidence one should prove. DanH says that evidence exists.

            Next, who has standing? I think it has to be someone from that era. I don’t know how a contemporaneous offended person has standing if they are not legally harmed by a registration that was not offensive when registered.

            Now, times change and things that were not offensive then can become offensive now. Perhaps congress should consider changing the law. But the TTAB does not have that power.

            Prediction: Overrule on evidence. Overrule on standing. Overrule on laches.

            1. Reverse your time frames.

              Evidence (perhaps not conclusive) was submitted at time of filing.

              Currently, I would argue that a rational and reasonable person could not be offended.

              Your post has these two exactly reversed.

              You may very well still have a standing problem based on the alleged wrong. A past wrong may not be redressable today (for argument’s sake, assume that the word is no longer considered ‘bad’). The harm alleged then – to meet the statute was not the same harm concurrently experienced by the plaintiff. As you pointed out – that’s a physical impossibility. The plaintiff – claiming that statutory harm (in order to have a statutory violation) then does not have immediate harm and standing fails.

      2. You mistake political correctness for progress – don’t drink the koolaid, and do read 1984 (merely removing the words as a form of societal control).

    2. Now tell me, please, just how a native American not even born in ’67 even has STANDING to allege that in ’67 they were disparaged?

      I think you’re combining two separate issues, Ned. The standing comes from the harm that’s caused now. To determine whether the statute requires cancellation, there has to be evidence that it was disparaging in ’67. There was evidence on that point, including some dictionary evidence.

      1. “There was evidence on that point, including some dictionary evidence.”

        To state this more carefully, as characterized by the dissent the 1967 evidence consisted of the 2 dictionary definitions.

        The dictionary definitions (or at least one of them) included a usage guide that said the word is “often offensive” as applied to Native Americans.

      2. DanH, I assume you agree that any right of cancellation arose in ’67 upon registration. The people at that time who were disparaged did not act.

        People today complain, but times have changed. People seem to have a lot thinner skins today than then, and take offense when no offense was intended.

        I cannot see how the complaints of a different people, even though related, have to do with a legal claim that arose a long time ago.

        As I said, if the question of cancellation turned on whether people today were offended, the petitioners here would have standing. I just do not think the current petitioners have standing because the have not alleged to be related to anyone who was offended at the time.

        1. Ned – your argument may work if there was evidence that in the intervening time, redskin was no longer disparaging (and then maybe became disparaging again (at least to the petitioners)). Petitioners showed evidence that it was disparaging at the time and was always offensive.

          So they satisfied the evidentiary req. As to standing, there doesn’t seem to be any rule that requires the petitioner to have suffered the harm at the time of registration personally. And it makes sense to not so limit the challenge because the harm from a disparaging mark is ongoing.

            1. anon – Not really.
              Standing is just whether the petitioners can bring the challenge, right? So, you could read this as “assume they satisfy the evidentiary requirement.”

              My argument, like others have said, is that the standing requirement is separate from the evidentiary requirement. Since the evidentiary requirement is settled (as assumed), we know the mark is disparaging. By the statute and even the D.C. circuit opinion, it’s not apparent that standing is predicated on suffering the harm personally at the time of registration. The D.C. circuit said that the laches period starts when the potential petitioner turns 18 years old, not only from when the registration occurs. Thus, the D.C. circuit contemplated other potential petitioners that would have standing.

              I see “harm” as the continued registration of a disparaging mark (there is no time limit in the statute to bring an action under the relevant passage). If you see the “harm” as the initial registration, then that changes things, but since there is no time limit to bring an action, then I don’t think this is right.

              That’s the basis for why I note that there would be an interesting argument IF the mark was no longer disparaging or lapsed in its disparagingnessocity. The statute on its face would support cancellation of the mark, but the petitioners would arguably not have standing if the harm had passed (even if they personally felt affronted).

              I’m not sure why your flippant remark deserved such a lengthy explanation, as these ideas are easily perceived from my original comment.

              1. Standing is just whether the petitioners can bring the challenge, right?

                lol – take a remedial course – there are elements to be met in order to “can bring.”

                And again – your “as assumed” is, well, assuming (kind of like I said). You are assuming the conclusion you want. Still.

          1. TLG, if they suffer harm from the mark now, it should be cancellable based on that harm. The petitioners should not be required to prove that the mark that disparaging long ago, because it is self evident that virtually no one considered it disparaging when registered. But times change.

            There is an assumption in the statutory framework that marks cannot become disparaging. That assumption might be and is probably wrong.

            But statutes are statutes. If the registration was not disparaging at the time of registration, long ago, the petitioners, born generations later, have not suffered any legal harm and do not have any standing.

            1. “because it is self evident that virtually no one considered it disparaging when registered”

              The PTO disagrees with you. Twice.

              “no one” – you’re talking about those that are disparaged, right? Not everyone in the world?

              I appreciate that the PTO may have been creative (hearsay be dambed) to align the elements, but it came up with the evidence that the term was and is disparaging and attributed it to the time period of registration.

              1. The PTO disagrees with you. Twice.

                And interestingly, the appeals court corrected the PTO the first time around, and as many have indicated, with the may faults with the evidence used, it is highly likely that the appeals court will correct the PTO the second time around as well.

                Creativity with evidence is not necessarily a good thing when you have a court to review that “creativity” under the rule of law.

                Do you know Mark Thornton, by chance?

    3. Newcomers who have grown thin skin should not have a right to assert a cause of action held by their ancestors when those ancestors did not complain.

      Actually, they did complain, Ned. Nobody listened.

      1. DanH, well such evidence of actual contemporaneous complaints is what this case needed.

        Since you seem to have that evidence, why don’t you cite it.

    4. link to washington.cbslocal.com

      Some interesting points in this story. Some tidbits – Annenberg did a survey of ~ 800 self-identified Native Americans and 90% said they didn’t find “Washington Redskins” offensive.

      But Ms. Harjo (mentioned by MM below in the history of these suits) says if a Native American supports use of “Redskins” that this is just “a classic case of internalized oppression,” Harjo said. “People taking on what has been said about them, how they have been described, to such an extent that they don’t even notice.”

      So she says they’ve been fooled by the palefaces into thinking they’re not offended.

      1. I should also add that Ms. Harjo had some criticisms of the Annenberg survey itself, arguing that unless the survey identified which tribe a person belonged to and asked whether the person was “culturally or socially or politically native”, then the person does not really represent a native opinion.

      2. “Raising awareness” and “recalibrating” what is and is not “offensive” (for everyone else) is one of the hallmarks of political correctness.

        But according to Malcolm, “political correctness” is apparently not “real.”

        Consider the source.

    5. This seems like a classic case of a “heckler’s veto” (search for the term in Supreme Court opinions by Rehnquist or OConnor) where the USPTO sided with the heckler.

            1. anon — stop being so callous. Think about those educated Native Americans that are trying to reclaim their dignity. The horror of the past, in this case, trumps the law. The SCOTUS should just take this case and invalidate the mark in equity.

              Why doesn’t Lemley write a paper that redefines offensive at the time the mark was issued to include changes that come in the future. Lourie could psychotically chant from Lemley’s paper and tear up a Redskin uniform in court.

    6. Wow, Ned arguing the law. Next thing we know Lemley will argue the law and the world will come to an end. I thought you anti-patent league members’ motto was, ” ’cause.”

  5. Our fellow trademark practitioners on both sides have made earned their keep through both cases (not certain however if they like the reputation generated from the cases).
    Wonder what happens to the practitioners if the Native Americans finally give up the war after losing at Appeal (again)?

    As a Native American – I like and vote to keep the name Washington Redskins. Go Skins.

  6. The Washington Redskins front office and owner Dan Snyder called a press conference for noon today. They announced that, recognizing that the name of their football team is offensive to the large majority of the nation, they are forced to change it.

    The team will now be known as the Maryland Redskins.

  7. Can we now cancel registration of all of the Native-American inspired marks in the automobile, clothing, beverage and foodstuffs industries?

    What about geographic indication marks for cities using Native-American inspired or copied names, can we cancel all them as well?

  8. Sorry, never mind, I think I now see from other comments that parts of this thread must have been deleted after moderation.

  9. Just a little while into this thread and the edits have taken their toll of some prime comments.

  10. The important question here is – how does Elizabeth Warren feel about this decision?

    1. That’s pretty funny.

      I am very happy it was cancelled. The dope owner should have changed the name a long time ago.

    2. Ward “Crimes Against Humanity” Churchill was seen laughing maniacally and rubbing his hands together in glee, mumbling over and over, “Next the Chiefs, next the Chiefs, next the Chiefs…”.

  11. Law-wise: On what grounds could this be overturned? I don’t see it happening.

    Political/Social take: I have and always have been against the Redskin name. In my work with Native Americans, I have seen many problems that those communities face– and the demonstrative lack of respect in American society, past and present, is the source of many of them. I have mixed feelings about “Florida State Seminoles”, “Central Michigan Chippewas”, and “Utah Utes”, but at least those schools are accountable to actual tribes. There is a relationship there, which means that the schools must listen and show respect to those tribes to continue to use those names. However, generic and stereotypical names (“Indian”, “Braves”, and especially the horrific “Redskin”) makes those sports teams and schools unaccountable to any Native American tribe. If they were, would Chief Wahoo ever be used?

    Anon: When you say, “political correctness run amok”, I take it, then, that not all political correctness is wrong. I must admit, I can’t draw the line. Someone once told me I should refrain from saying, “gosh, that ref is blind” because it is disparaging to blind people. I feel that that is a little too much… but I can’t say why it is appropriate to be sensitive in some situations and not be sensitive in others.

    But can we agree that the line should not be drawn with the “how I personally feel about the word” standard?

    1. Sorry, the last paragraph is addressed to “Oh no”, not Anon.

      And my thoughts have nothing to do with the fact I’m a huge Eagles fan.

      1. The large american bird is offended by the way the American football team plays and has lodged a complaint to remove the trademark rights of that Philadelphia sports franchise.

        1. The Court dismissed the complaint without prejudice to leave the American bird to write its complaint in a recognizable language… the judge couldn’t understand “squuuuuueeeeeeee.”

    2. I must admit, I can’t draw the line.

      Apparently, others have the same problem.

      I have all the respect for the disadvantaged group of native americans (all tribes). They really got the short end of the stick.

      HOWEVER, I am an ardent sports fan and I have NEVER known anyone to take the name of a sports team as a denigration and slight for a disadvantaged group.

      This is just beyond that line that should be drawn.

      (and you are aware right that Chief Wahoo is used, right?) Were you aware (most likely not) that the origination of Chief Wahoo was to celebrate and honor the american indian? Political correctness has turned that around 180 degrees.

      1. I have NEVER known anyone to take the name of a sports team as a denigration and slight for a disadvantaged group.

        Nobody cares who you personally know because who you personally know does not matter. Why is that so hard to figure out?

        Political correctness has turned that around 180 degrees.

        “Political correctness” is just another dog whistle (like “ivory towerism”) that conservatives love to blow when their precious “freedum” to disparage this or that minority group is curtailed in some way.

        Were you aware (most likely not) that the origination of Chief Wahoo was to celebrate and honor the american indian?

        That’s nice. I’m pretty sure there are a million better ways to achieve that goal.

        I’m going to go way out on a limb and guess that Rush Limpballs will have some fresh talking points for you today, or more likely he’ll simply be repeating the same stale talking points you’ve re-posted here. Be sure to tune in!

        1. when their precious “freedum” to disparage this or that minority group is curtailed in some way.

          An absolutely WRONG misinterpretation.

          You are not paying attention.

          1. “thought police”

            You can think whatever you want about “redskins.” That hasn’t changed.

            All that’s changed is the government’s stamp of approval.

            Why not just be happy that you still have some unconstitutional b.s. stamped on the national currency?

            1. Why not just be happy that you still have some unconstitutional b.s. stamped on the national currency?

              /face palm

              You missed the parts in law school that discussed constitutional law, didn’t you?

      2. I don’t know you, Anon, but maybe the reason why you don’t know anyone who was offended is because you don’t have a diverse group of friends. Seriously, are questioning the sincerity of the plaintiffs here? Let’s say you happened to know them, would that change your opinion?

        Please, PLEASE, read my posts carefully. I said that if the Cleveland Indians were accountable to a Native American tribe, they would discontinue Chief Wahoo. Of course I am aware that it is being used.

        And I think you are dead wrong about the origin of Chief Wahoo. What is your support that this honored American Indians?

        1. As to Chief Wahoo: a friend from Cleveland, associated with the team and the particular person included in the original honoring.

          I am most assuredly NOT dead wrong.

        2. why you don’t know anyone who was offended is because you don’t have a diverse group of friends

          Not true at all – but thanks for the shot. ;-)

            1. Sorry J – must have missed that question.

              To answer you directly, no. Even knowing the plaintiffs I would fail to see the nexus between a sports team loved/h@ ted or even ignored and the idea that the team name is meant to be disparaging.

              The word just does not have that meaning in the context for which the Trademark serves (and yes, the purpose of the mark seems to have fallen off the table in this discussion).

              1. So I’ll consolidate our discussions here, because I’m getting a bit dizzy.

                This is my problem with those who disagree with me on Native American mascots… the argument gets reduced to “I don’t see/have a problem with it, I don’t get why other people do, so let’s keep the status quo. If we don’t have some ‘common sense’, then this whole thing will get out of control.” That is a fair summary of your argument, right? (I don’t want to be guilty of building a straw man.)

                The other side feels as strongly, but inopposite, as you do. The plaintiffs, and many others, are sincerely offended. And Native American imagery in sports, beyond dispute, has at times been degrading (please look up the guys who dressed up in red face to an Indians game).

                From my first post, I’ve pointed out the play between what is best interpretation of the law and best interpretation for society. I think the societal question is most important for American Indian tribes. The schools of Utah, Central Michigan, and Florida State have had an ongoing relationship with local tribes. Illinois (Fightin’ Illini) and North Dakota (Fighting Sioux) have not. Do you really think that the latter schools, with the complete disrespect shown, can claim they are honoring American Indians? There is your nexis, right there.

                Honor is not lip-service (or bribing, as Snyder has done with his charitable organization). It requires ASKING. Who has Snyder asked? Would he ever ask anyone, fully prepared to change the name if they said no? The answers are “no one”, and “no.” If they were renamed the “Powhatans”, with permission of that tribe, then this wouldn’t be an issue (and that is why there is no slipper slope!)

                The idea to compare Native American mascots to animal mascots being removed… well, that just shows how “devalued” Native Americans are in this country.

              2. The word just does not have that meaning in the context for which the Trademark serves (and yes, the purpose of the mark seems to have fallen off the table in this discussion).

                You say that as though “the context for which the Trademark serves” is relevant. I don’t see that in the statute. Do you have any legal authority to support this argument?

              3. And to answer your question, why George Preston Marshall picked that name is disputed. But given he had a history of racism, was it likely meant to honor anyone?

              4. J,

                To your post at 6.2.2.2.1.1.1, you make one (huge) mistake.

                You apply a least common denominator to general speech and run the risk of silencing a use of a term that may have a valid – separate non-disparaging meaning, and you do so with no relation whatsoever to the goods/service which informs the meaning of the term. You have obviated step one of the two step test. While step one may not control, it also cannot be written out of the equation so presumptuously – not when other meanings of the word exist.

                As to “red face” for Tribe games, well, if you find that offensive, then you really do have thin skin. There is NO connection between “red face” with disparagement that might be found with the historical “black face.” None. Imagined slights should count for nothing.

                Slippery slope.

                You are still engaging in a slippery slope when you attempt to control non-tribe generic references. I “get” the degree of respect you invoke when you give examples of particular tribes. But that is clearly not at issue here, so it is a kind of strawman in its own way. You lack a nexus with the non-specifics which is the point of the discussion. Honor may not be lip service, but likewise it is not kowtowing (oops – is that offensive?) to political correctness. You seem to want to make a big deal of asking – but on a generic term, for whom is there to ask? What if the Arapaho think it great, but their rivals, the Shoshoni thought it disparaging? What then? How far down would we slide?

                Finally your comparison to animal mascots is inane. You take my jest and miss the point. With some teams, the offensive is far more than the team name.

              5. Your first paragraph just reiterates a slippery slope that I don’t believe is there. By your logic, there should be no words that are taboo. A man I love and respect once told me that the N-word was not about black people but about “slobs.” So because there are two meanings, in his mind, does that make the word ok to use? What is “general speech” as you call it.

                If you want to use a slippery slope argument, its not enough to say, “In my mind we are in the ideal spot, so let’s just stop it here,” you have to argue that the progress down the “slope” has been a bad thing from the beginning. There is a reasonable argument to be made that no word should be taboo… but I don’t want to make that argument, because I don’t agree with it. I rather live on the slope, because on the slope ethnic slurs are expunged from normal use in society. The slope is not as slippery as your 1984 mind makes it out to be. I see “Redskin” as a word that originated from the government-sponsored genocide of a race of people, as the plaintiffs do. You choose to believe otherwise, but evidence goes the other way according to the PTO.

                Either “red face” strikes you as offensive, or it doesn’t. I’m not going to try to convince you otherwise. “Perceived” slights are, in fact, slights to the person perceiving it. Just because you don’t perceive it doesn’t mean it isn’t there.

                I don’t think you “get” it if you say it is “clearly not at issue here.” The respect for tribes and native american history and culture is exactly the point, and the behavior of sports organizations determines whether it is respect or not. My point is using a generic term (which is what Redskin is at BEST… I find it as a slur, but I’m engaging you on your ground) means there is no accountability for what that organization does. It can mock American Natives till their hearts content, and all they have to do is get anecdotal evidence of people feeling they are being “honored.” Generic terms are NOT ok, because it makes all the tribes the same. Illinois lost their mascot because the guy would dress in Lakota outfits, overlooking the distinct history of the Illini tribal bands. Can we agree that the Illini bands had the right to be offended by that behavior? Can you blame them for not giving them permission for further use?

                As far as some tribes disagreeing… well, that is why I have mixed feelings about Native American mascots. I hate the tomahawk chant that the Florida State Seminoles use. (Did you see it being used against Elizabeth Warren?) But at least there are always the ongoing conversations and ultimately Florida State is accountable to someone. And listening is respecting.

                Let me back up on the animal thing… I wasn’t referring to your jest, because your argument is more substantive. But in my many years arguing the issues, people will make the direct correlation between losing “Redskins” with losing all mascot names. Conflating the two is insulting… but not one you have made, I’m sorry for my carelessness in suggesting it.

              6. J,

                A horrid reply. “A man once told me“… Really? We are NOT talking about “a man,” but about an actual other (non-disparaging) definition.

                My first paragraph reiterates a slippery slope that you do not think is there…? Can you restate that? I lost track of what you were trying to say. Maybe because I am NOT actually using a slippery slope argument…

                You might want to also check out the percentage of “actual” american indians in the stated poll – or did that have to be a different group of “active” american indians, or an even different group of “active and offended” american indians…

                Open your eyes to the manipulation of the politically correct.

                “Feel strongly” is a red herring. Focus instead on the “why” of the feel strongly.

                Likewise, you quite miss the point of the “perceived” slight comment. It is you that runs to the slippery slope with your answer there.

                As to “Generic terms are NOT ok, because it makes all the tribes the same. – you are really going to have a problem with the census form then. Or pretty much anything in life. How dare you label me as a “Hispanic” or an “African-American” – that’s NOT ok, because it makes all “African-Americans the same. I’m an African-American with roots from the Georgia area and traced back to the Igbo tribe by way of the Poruguese – nothing at all like the Dahomey – How dare you!! – get the picture?

                You also miss badly on the redface comment – it is NOT whether I am offended personally – it is the FACT that no such historical mirror of the blackface exists. Someone now painting their face red to go a sporting event is ONLY someone painting their face red to go to a sporting event. You CHOOSING to be offended has no historical ties to anything and is only your choice to be offended.

                Your choice. Think about that.

                As far as “As far as some tribes disagreeing… well, that is why I have mixed feelings about Native American mascots” – it’s not even one tribe disagreeing with another – I provided a quote from a person of Cherokee heritage and another person of Cherokee heritage posted feeling differently. This should tip you off that we are in the land of political correctness.

                As to losing mascots, I think you (again) reach too hard to find an insult. No one is really equating losing a mascot with the same exterior value of losing what the mascot happens to portray – be it person or animal or even inanimate object. You quite miss the FACT that mascots are generally chosen for POSITIVE attributes. That some people may be ‘offended’ even by positive attributes should again tell you that political correctness has usurped the soapbox.

              7. Generic Native American terms are not ok for use of mascots. You need to be a more generous reader- what I meant by saying “generic terms are not ok” is very clear in context of the paragraph.

                I think our discussion on this topic is exhausted because I think you have an extreme view of what is offensive and what is not offensive.

                Redface doesn’t have a history? Sigh*, because racism must have a history to be offensive? Just read this article of pro-Wahoo people who think putting on redface is going too far: link to espn.go.com

                But since we are in “history makes it offensive” discussion, do you know what DOES trace its origin from state sponsored genocide of Native Americans? Let’s make it like Wheel-of-Fortune, I’ll give you the R, S, T, L, N, and E… you can pick 3 constants and a vowel if you want:

                R E _ S _ _ N

                But I guess we have to overlook THAT history if there any other alternate definition of the term. We just have to assume the propensity-to-be-racist guy meant it in a good way.

              8. J,

                Your comment finally cleared.

                I find your demand that I be more of anything to be disparaging and unfounded. Why should I have to conform to how you see the world? Who died and made you arbiter of all that is fair and reasonable?

                That paragraph was in “jest” but goes to show the danger that you seem oblivious to. No tin ject, however, your view of the Wahoo red-face incident is not accepted. I doubt that you played sports at any level, otherwise you would realize that face painting is simply not a disparagement (and occurs for nearly every single type of mascot – such is mascot and content neutral.

                You may want to take it as such, but you then place yourself at the mercy of the lowest common denominator of human sensitivity.

                Likewise, I do reject your view that my view is “extreme.” I find your view to be extreme. Now what?

                Luckily, in this country we DO have a law that serves to protect BOTH our views (and the ability to express those views). Critically – and this is the point that the politically correct just don’t seem to be able to grasp – that protection is FOR speech and AGAINST the curtailment of speech.

                Guess which side I am on. You want to call that “extreme,” well, at least my “extreme” permits speech. Your extreme is far more dangerous in NOT permitting speech. Thanks, but I like my side much better.

                You misconstrue the argument about redface and the lack of parallel to blackface. You would be better off simply acquiescing the point instead of showing a desperate reach as you do. It comes across as a bit pathet1c.

                Your history lesson also misses the mark as the legal question at hand does not go back to the dawn of time or whenever you might find it convenient. As I posted elsewhere, it is those that desperately hold onto h@t eful meanings that feed that h@t e – and that’s part of the evi1 of political correctness. In a very warped, but real way, political correctness needs the venom in order to feed itself, and serves a dangerous self-perpetuation. As I pointed out (and is clearly visible in your link, the Chief Wahoo incident has only one party bringing the venom – and it is NOT the man going to cheer on his baseball team). You seem to want to be blind to the actuality of the scene.

                To me, that again paints your extremist side in a far worse light.

                Your final shot is likewise pathet1c, as once again you seek to “piggyback” from the anti-black to the anti-red, where in viewing the founder’s actual background, such is groundless. This appears to be yet another move of desperation on your part.

                The tally is not looking good for you J.

        3. The style is clearly typical of 1940s cartoon work. We don’t tolerate any 1940s cartoons anymore…

          It’s all a red herring of the INTENT, anyways. It’s still offensive.

          1. The point J – is that ANY word is – or can be – offensive to someone. You labeled it s slippery slope, but as I pointed out – the bucket of grease is in your hands.

            I guess the advice of grow a thicker skin may itself be offensive to thin-skinned people…

            1. ANY word is – or can be – offensive to someone. You labeled it s slippery slope, but as I pointed out – the bucket of grease is in your hands.

              We have nothing to fear as long as really, really smart, persuasive and credible people like you and Rush Limbaugh are around to guard our precious freedum to trademark sports team names that are less offensive than “Redskin”!

              THANK YOU FOR YOUR VIGILENCE. God is great.

              1. It’s not a non-sequitur, TB. I’m just mocking your “slippery slope” nonsense.

                NEXT THING YOU KNOW THEY’LL TAKE THE ATLANTA BRAVES TRADEMARK TOO!!!!!!!

                To which my response is: so what? Who cares?

                Get a life, man.

              2. THANK YOU FOR YOUR VIGILENCE. God is great.

                Apparently Malcolm’s post at the Ministry of Truth was not enough power for the man, and he is also angling for the top position at the Ministry of Religion.

          2. Interesting quote:

            It is my opinion that mascot and other uses of Native American tribe names, terms, etc., causes the world to acknowledge and respect us. The use of these Native American names for our weapons systems, mascots and products brings honor and recognition to Native Americans.

            -Mark Thornton, Cherokee

    3. J, grounds for overturning:

      1. insufficient evidence that at the time of registration (’67) the marks then were disparaging.

      2. laches or something like that.

      I wonder how the Supreme Court has dealt with very stale claims? It simply cannot be that if is born and grows up that one is entitled to bring a claim that some registration is offensive millennia after it has been registered simply because one acts promptly after coming of age.

        1. Survey the stadium (preferably before a game) or after a winning game ;-) and see exactly how many fans yell that term in a disparaging manner…

            1. dis·par·age verb \di-ˈsper-ij, -ˈspa-rij\
              : to describe (someone or something) as unimportant, weak, bad, etc.

              Yes – intent is present in the definition – especially when more than one meaning may apply – and even more so when in the context of football in which the name is used, a non-disparaging meaning is intended.

              1. Since we are both looking at Merriam Webster online dictionary…

                As a transitive verb… “to lower in rank and reputation, degrade.” Doesn’t require intent. And I haven’t done research on this particular law, but I’m pretty sure that you can’t trademark something offensive just because you intend it to honor someone or something.

      1. 1. Clear error standard. Can you say that the PTO made a clear error? Read the case, there is evidence for the PTO’s finding. If it is overturned, then the appellate court is doing the PTO’s job.

        2. Laches assumes that a PERSON/party delays. I’m unaware of any other equitable defense that would be relevant.

        Think about your principle… could a law, that would otherwise be unconstitutional, be upheld simply because it was 40 years old? Even if you reject the analogy… how old does the registration have to be for immunity to being challenged?

        I see (1) as much more likely than anything else… but it would be substituting the appellate court’s judgment weighing the evidence.

        1. New test:

          – Choose ANY popular and well known trademark name.
          – Start social media wave associating that trademark name with some “protected” group (whatever works).
          – File and revoke the trademark.
          – Repeat ad nauseum.

          1. Argument style:
            1) Exhaust any reasonable argument
            2) Revert to slippery slope
            3) Repeat ad nauseum until legal blog turns into a YouTube commentary

            1. 1) – you missed my many other posts, which are far from exhausting reasonable arguments
              2) – well, we are stuck on 1) aren’t we?

              As to slippery slope, you might want to explain how that fits this situation, as it appears that “your side” is the one applying grease to the slope and taking a clearly-non-disparaging SPORTS meaning and turning it into something else.

              1. Comment wiped out – and completely on the up and up…

                anywho, a fact is a fact J – it remains a fact whether I say it or not.

                The term has multiple meanings. What is the meaning in the context of its use as a trademark?

            2. Argument style:
              1) Exhaust any reasonable argument
              2) Revert to slippery slope
              3) Repeat ad nauseum until legal blog turns into a YouTube commentary

              LOL. Don’t forget “the Gestapo” and Jane Fonda.

  12. would also take Dan Snyder’s side

    LOL – taking a side is NOT an indication of belief system.

    If you were an actual lawyer, you would know that and not attempt to misrepresent such.

    You are clearly NOT seeing the legal position actually being taken here. Open your eyes.

    1. taking a side is NOT an indication of belief system

      ROTFMLAO — except when you say otherwise, of course.

      My comment plainly was not directly at those who merely “took sides” based on some technical legal argument. For better or worse, those earlier comments and mine are now vanished into the ether so I don’t see much point in revisiting.

      In a nutshell, let’s just say I wasn’t surprised to see a certain group of regular commenters here voicing their displeasure with this result. That was consistent with a long-running and well-supported theory of mine.

      1. My comment plainly was not directly at those who merely “took sides” based on some technical legal argument

        Given as you routinely get my political leanings DEAD WRONG, you need to try again.

        Plainly.

  13. Laches?

    Why isn’t there a statute of limitations or repose for this kind of complaint? It seems remarkable that anyone can seek to cancel a mark generations after adoption and use for this kind of reason.

    1. Why isn’t there a statute of limitations or repose for this kind of complaint?

      I believe that there are such limitations which is why the earlier case was lost on appeal. There were new plaintiffs in this case to address that issue.

      1. MM, I understand — laches is a personal defense. An SOL is not. It operates against the public.

        But the big issue here, to me at least, is that this is a stale claim and should not have been allowed.

  14. PC gone amuck. Personally, I’ve never heard the term “redskin” used disparagingly. I’ve never read the term “redskin” used disparagingly. Perhaps this was the case 100 years ago, but the only people offended by the term today are those that are offended by just about anything and/or those looking for cause to champion (for reasons other than the cause).

    Disclaimer: I have a strong dislike of their football team.

    1. Personally, I’ve never heard the term “redskin” used disparagingly.

      Nobody cares what you personally heard.

      Why is that so hard to figure out?

      1. …and yet, someone else cares even moreso for another individual’s fee-fee’s.

        You kind of miss the point here Malcolm.

        1. someone else cares even moreso for another individual’s fee-fee’s.

          Spit it out, Billy. Who’s “someone” and who is the “other individual”?

          You kind of miss the point here Malcolm.

          Pretty sure it’s you and Dan Snyder who are “missing the point here”. Of course, being completely out of touch with changing times has never kept you from mindlessly wagging your tongue before so nobody should expect you to stop now. And by all means don’t forget to scream at those kids who stepped on your lawn.

      2. Nobody cares what you personally heard.
        Everybody would care never to have personally hear (or read) you again.

        Why is that so hard to figure out?
        Nice to see you stay off-topic (yet again).

    2. Personally, I’ve never heard the term “redskin” used disparagingly. I’ve never read the term “redskin” used disparagingly.

      We can assume that this is true. But it’s not you or your friends, it’s the word itself:

      link to washingtonpost.com

      1. it’s the word itself
        I have little doubt that the use of that word occurs at least 99.999% of the time in the context of football. I doubt that even 1% of population of the US has either heard or used that term in disparaging manner against Native Americans. How many people does it take to be disparaged over the use of a term in order it to be disqualified as a trademark?

        The Vikings, Raiders, and Buccaneers all characterize groups of people that were known for raping and pillaging. Are Scandinavians offended by use of the term Viking? What if 10 of them are? Should we cancel that mark as well?

        While a Canadian hockey team, there is a US trademark for the Canucks, and according to Wikipedia, “In the United States the term is often considered derogatory, and is particularly derogatory when applied to French Canadians in New England.” Is this next up on the list?

        How about the Carolina Hurricanes? I’m sure there are many people out there who have lost family members because of hurricanes. It seems to me that this is very insensitive to those people. Tampa Bay Lightning? 50 people on average die each year because of lightning. Who wants to be reminded of a loved one lost?

        This issue is less about people being offended and more about people looking to make a name for themselves.

        1. The Vikings, Raiders, and Buccaneers all characterize groups of people that were known for raping and pillaging. Are Scandinavians offended by use of the term Viking? What if 10 of them are? Should we cancel that mark as well?

          Perhaps you should read the statute again. It says nothing about measuring how many people are offended. Whether a particular term is disparaging of persons is a question of fact. I have little doubt that the plaintiffs in this case met their burden of persuasion. I do doubt that any group of Scandinavians could do so, much less any group of self-identified pirates.

          How about the Carolina Hurricanes? I’m sure there are many people out there who have lost family members because of hurricanes. It seems to me that this is very insensitive to those people. Tampa Bay Lightning? 50 people on average die each year because of lightning. Who wants to be reminded of a loved one lost?

          This argument is even more ridiculous. Once again, read the statute.

          1. Number of people whining about it today doesn’t matter, because according to the statute, it has to be offensive at the time of registration.

            So, the plaintiffs showed evidence that convinced the PTO that it was offensive AT THE TIME.

            1. J,

              I concede the legal point to you: the plaintiff DID show evidence of the term’s disparaging meaning at the time of the trademark registration.

              See link to ttabvue.uspto.gov

              I note (without reviewing the actual argument) that the plaintiff also claims the use by the Football team did include the disparaging meaning. For arguments’ sake, if this is true, then the team should lose based on law (as you have put it) and use.

              However – this is based on one side’s brief – and a quick read shows that one side conflating the several meanings to reach its point.

              I am not convinced – but I do allow that a plausible case does exist – taking the pleadings as true.

            2. However J,

              The question put to the court does NOT indicate a time of filing issue and DOES draw attention to a particular meaning as used:

              link to ttabvue.uspto.gov

              What is the meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the goods and services identified in the registrations?

        2. Are Scandinavians offended by use of the term Viking? What if 10 of them are? Should we cancel that mark as well?

          Beyond parody.

          You can’t make this stuff up, folks.

  15. This is an opportunity for rebranding the NFL’s Washington team. Some suggestions. The Washington:

    Paleskins
    Palefaces
    Lawyers
    Lobbyists
    Masters
    Bankers
    Native Americans
    Potomacs
    Civil Servants

    1. LOL,

      Prof Crouch ran a post on that chocolate sucker from the Carolina’s, but referencing the name (even with changing a few letters) is wiped out completely.

    2. LOL,

      Prof Crouch ran a post on that chocolate [lollipop]** from the Carolina’s, but referencing the name (even with changing a few letters) is wiped out completely.

      **The force is strong with the moderation field

  16. link to usatoday.com

    Suzan Shown Harjo was lead petitioner in the original trademark case, which began in 1992. The TTAB canceled the team’s trademarks in 1999, just as it did today, but the team won Harjo v. Pro Football Inc. on appeal in 2003 in part because the district court ruled that the plaintiffs had waited too long to file their suit.

    Harjo organized a second suit, with younger plaintiffs, including named petitioner Amanda Blackhorse, in 2006. The original case did not end until the Supreme Court declined to hear it in 2009. Blackhorse v. Pro Football Inc. went active at that point and a 90-minute hearing was heard before the trademark board on March 7, 2013. The board took more than a year to come to today’s ruling.

    Fascinating.

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