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Federal Judge Upholds Revocation Of Redskins Trademarks

Washington Redskins Helmet

A Federal District Court Judge in Virginia has upheld a controversial ruling by the U.S. Patent and Trademark Office revoking the trademarks granted more than fifty years ago to the Washington Redskins due to the fact that the name is allegedly offensive:

The Washington Redskins lost the biggest legal and public relations battle yet in the war over the NFL team’s name after a federal judge Wednesday ordered the cancellation of its federal trademark registrations, opposed for decades by Native American activists who call the name disparaging.

The cancellation, called a “huge victory” by the activists, doesn’t go into effect until the team has exhausted the appeals process in the federal court system. And Redskins President Bruce Allen vowed Wednesday that the team would appeal.

“We are convinced that we will win on appeal as the facts and the law are on the side of our franchise that has proudly used the name Washington Redskins for more than 80 years,” Allen said in a statement.

But even if the Redskins ultimately take the case to the Supreme Court and lose, the team can still use “Redskins” and seek trademark protection under state law. The team has argued, however, that a cancellation of its trademarks could taint its brand and remove legal benefits that would protect it against copycat entrepreneurs.

U.S. District Judge Gerald Bruce Lee’s decision affirmed an earlier ruling by the federal Trademark Trial and Appeal Board. Last year, the appeal board declared in a 2-to-1 vote that the team’s moniker is o

The trademark case against the Redskins has been pursued by five Native American activists, including Amanda Blackhorse, a Navajo who is known for leading protests against the team outside stadiums wherever it plays.

After the trademark appeal board’s ruling against the team, the Redskins tried to overturn the decision by suing Blackhorse and the four other Native American activists in federal court in Alexandria. The team argued that the Lanham Act conflicts with its First Amendment rights. It also contended that Blackhorse didn’t prove that enough Native Americans opposed the name at the time the team registered its trademarks in 1967, 1974, 1978 and 1990

Lee agreed with that assessment, rejecting the team’s argument that the vast majority of Native Americans had no objection to the name when the trademarks were granted between 1967 and 1990. Instead, the judge questioned why the team ever chose the name, pointing out in his ruling that Webster’s Collegiate Dictionary defined the word as “often contemptuous” in 1898, “seventy years prior to the registration of the first Redskins Mark.”

But Lee also emphasized that his decision does not stop the team from using its name or fans from buying the team’s gear emblazoned with the word.

(…)

Last year, the appeal board ruled in Blackhorse’s favor, voting to cancel the Redskins’ trademark registrations in a decision that reinvigorated the movement against the name. Members of Congress proposed legislation to strip the NFL of its nonprofit status if the league continued using the name. (The league announced in April that it was stripping itself of its tax-exempt structure.)

In its ruling, the appeal board asserted that “Redskins” offends a large number of Native Americans and is therefore ineligible for trademark registration under the Lanham Act. The board based its vote on several factors, including that “Redskins” is a dictionary-defined slur and the National Congress of American Indians declared the name racist.

The team, in the lawsuit it filed against the Native American activists in August, argued that U.S. patent officials had infringed on the Redskins’ free-speech rights and took away a valuable commodity “without just compensation” because the organization had invested millions of dollars in the use, promotion and protection of its trademarks. (The Redskins’ lawyers said in court papers that the team’s value increased from $741 million in 2000 to $2.4 billion by August 2014, with its brand management valued at $214 million.)

The Supreme Court held that states don’t have to issue speciality license plates whose messages they don’t want to endorse but that would nonetheless carry the government’s imprimatur. The Native Americans’ attorneys argued that the same rationale holds true in this case. The government, the judge wrote, is exempt from First Amendment scrutiny.

The team also claimed that Blackhorse and her fellow defendants didn’t meet the legal burden of proof by showing that enough Native Americans viewed the Redskins trademarks as offensive at the time each registration was issued. But the judge countered, pointing to “highly probative” testimony from the Redskins’ own linguistics expert, who conceded that the team name “certainly might be offensive” from 1967 onward.

But Lee said the appeal board’s decision and the Lanham Act do not violate the First Amendment. He cited a fresh Supreme Court ruling in June that declared Texas didn’t violate the First Amendment when it banned specialty license plates bearing the Confederate flag proposed by the Sons of Confederate Veterans.

The Supreme Court held that states don’t have to issue speciality license plates whose messages they don’t want to endorse but that would nonetheless carry the government’s imprimatur. The Native Americans’ attorneys argued that the same rationale holds true in this case. The government, the judge wrote, is exempt from First Amendment scrutiny.

The team also claimed that Blackhorse and her fellow defendants didn’t meet the legal burden of proof by showing that enough Native Americans viewed the Redskins trademarks as offensive at the time each registration was issued. But the judge countered, pointing to “highly probative” testimony from the Redskins’ own linguistics expert, who conceded that the team name “certainly might be offensive” from 1967 onward.

Eugene Volokh, who was critical of the PTO decision last year, notes that this case clearly seems to have been influenced by last month’s Supreme Court decision involving license plates:

The chief question is whether the exclusion of “disparag[ing]” marks violates the First Amendment. To be sure, the cancellation doesn’t directly restrict the speech of the trademark’s owner; indeed, the more a trademark is protected, the more the speech of others who want to copy the mark is restricted. But the cancellation can serve as an incentive to change a mark as well as a deterrence to others who are considering using such marks.

Consider an analogy (though not a perfect one) from copyright law: Say Congress decided to deny copyright to movies that expressed “anti-American” views; this would strongly deter people from investing in such movies and would thus reduce the amount of such movies that are made. Likewise, if Congress decided to deny copyright to movies that “disparage” racial, ethnic, or religious groups, or for that matter “institutions, beliefs, or national symbols.” (The analogy is imperfect because copyright protection is probably more important to a typical filmmaker than federal trademark registration is to a typical sports team.)

And indeed, First Amendment law has recognized that if the government creates a broadly available benefit scheme aimed at promoting private speech — such as the tax exemption for charitable or educational institutions, funding for university student groups, access to meeting rooms in a public library, and so on — the government generally may not then deny such access to some speakers based on their viewpoints. On the other hand, if the government is viewed as itself speaking, even in cooperation with private speakers, the government may indeed pick and choose which viewpoints it promotes or fails to promote; that was most recently reaffirmed in the Confederate flag license plate case, Walker v. Sons of Confederate Veterans. And as Sons of Confederate Veterans shows, whether a program is viewed as a promoting-private-speech “limited public forum”/”nonpublic forum” program (in which viewpoint discrimination is forbidden) or as a “government speech” program (in which viewpoint discrimination is allowed) is often highly controversial.

At the center of Judge Lee’s decision is the question of whether or not the Redskins name is “disparaging,” which is a central due to the provisions of the Lanham that bar the issuance of a trademark that “disparages” a racial or ethnic group. As I said when I wrote about the PTO Board’s decision last year, there is something about that entire provision that is troubling from a First Amendment perspective. A law that allows the government to reject or rescind a trademark that is allegedly “disparaging” is quite clearly a content-based restriction on speech. Presumably, there would be no restriction on an application for a trademark that was complementary of such groups, and for that reason alone the law would seem to fair under the First Amendment because it allows the government to regulate speech based solely on the content of that speech, and in this case based largely on subjective opinions from what may or may not be a representative group of people from the group allegedly being disparaged. Additionally, I think trademarks are distinguishable from the license plates that were at issue in the Supreme Court’s recent opinion. In that case, we were dealing with a product that essentially required state governments to put some kind of official imprimatur on the messages of private organizations. While I believe that Justice Breyer’s opinion in that case was far broader than it needed to be to reach the result, I think the result itself was correct. In this case, trademarks require no real action on the part of the government beyond processing an application All that granting a trademark does is give a party certain legal rights in case someone else tries to impersonate their business or profit from their name. If that happens, any enforcement those trademark rights is generally left to private legal action by the trademark holder, the government isn’t really required to act at all except insofar as it operates the court system. Given that, I don’t think it’s appropriate to apply the broad standards granted to states to regulate content of license places to clerk’s in the Patent Office who process trademark applications.

In addition to the First Amendment issues, it also seems as though there are some fairly compelling Fifth Amendment issues arising out of the Patent And Trademark Offices decision. Quite obviously, the Redskins and National League Football have serious property interests in the Redskins name and trademarks. Taking those away more than a half century after they had been granted based on a finding that they are “disparaging” seems to me to arbitrary and capricious, and to qualify as a taking of property without just compensation. By revoking trademarks that were determined to be valid when they were first granted, and which have been in used for decades since then in reliance upon that, the government has taken property of significant, quantifiable value from the Redskins for which they will not be compensated. Additionally, retroactively applying the “disparaging” provisions more than 40 years after the Redskins received their trademarks seems to me to be a clear case of government overreach, especially when there are other equally disparaging trademarks that remain valid under the law. These issues don’t seem to be directly addressed by Judge Lee, but I would assume that they will be addressed on appeal.

Practically speaking, this decision doesn’t mean the end of the Redskins at all, For one thing, the effect of the ruling is stayed pending the exhaustion of the team’s appeals, which is likely to take at least another few years if not longer. Additionally, even if the team ultimately loses its appeals it would still be able to use the Redskins name and the trademarks. The only thing that the loss of the trademark rights means is that they would lose some ability to prevent others from making and selling merchandise with the team on it, although common law and state trademark law will allow them to continue to enforce their rights at least to some extent. The hope, of course, is that the loss of the trademark will compel the team to change the name simply for business reason, but it’s not clear at all if that will work. The fact that surveys of the American public as a whole show overwhelming support for the team keeping its name suggests that, even in the face of a loss, the Redskins will still be able to profit handsomely from the sale of official merchandise. Indeed, the prospect of a backlash against such an outcome in the Washington, D.C. area suggests that they may actually end up making money off all of this in the end.

This isn’t the first time that Native Americans have attempted to use trademark law to go after the Redskins. More than a decade, there was a similar challenge filed at the Patent and Trademark Office, with a similar outcome from at the administrative level. That case, however, ended up being dismissed on appeal to a Federal Court on technical grounds that didn’t directly address the fundamental issues in the case. This time around, the parties seeking to revoke the Redskins’ trademarks did not suffer from the same technical standing issue that plagued and ultimately doomed the first case, so we have gotten our first ruling on the merits of the claims against the Redskins from a Federal Judge. This is hardly the end of the road, of course, The Redskins will appeal this matter to the Fourth Circuit Court of Appeals in Richmond, and the matter could ultimately end up before the Supreme Court. For now, though, we have a Federal Court that has upheld a statute that is legally questionable at best and a decision that may not have the impact that many opponents of the Redskins name might hope that it would.

Here’s Judge Lee’s opinion:

Redskins Trademark Ruling by Doug Mataconis

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. EddieInCA says:

    Cleveland Indians
    Kansas City Chiefs
    Atlanta Braves
    Edmonton Eskimos
    Chicago Blackhawks

    Are these next?

    Just off the top of my head.

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  2. Dave D says:

    A law that allows the government to reject or rescind a trademark that is allegedly “disparaging” is quite clearly a content-based restriction on speech.

    Or to look at it another way:

    If that was so, the registration would have fallen afoul of the provision of the Lanham Act that disallows the registration of trademarks that may disparage the members of a group. You have the right to pick a slur for your product name, the thinking goes, but you can’t expect the government to protect your exclusive use of it by restricting the speech of others.

    Why should the Federal Government restrict my free speech of using the Redskins logo?

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  3. PogueMahone says:

    How do you square this:

    A law that allows the government to reject or rescind a trademark that is allegedly “disparaging” is quite clearly a content-based restriction on speech.

    With this:

    All that granting a trademark does is give a party certain legal rights in case someone else tries to impersonate their business or profit from their name.

    So how is it clearly a content-based restriction on speech when all it does is give a party certain legal rights in a commercial setting?

    Where’s the restriction?

    If I’m denied a copyright for a saying, is the government restricting me from saying it? Clearly, no.

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  4. Franklin says:

    @PogueMahone: I believe this was explained by Volokh (either that or I’m misunderstanding your question):

    indeed, the more a trademark is protected, the more the speech of others who want to copy the mark is restricted

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  5. Pete S says:

    Even though I have been a fan of the team for years, I realize the name is pretty much indefensible at this point and I would really prefer to see them change it gracefully even though this is probably too much to ask of Dan Snyder.

    But I do not see the end game of this action. If I am right the only way this can really impact the team is if, instead of one entity using the name and selling merchandise, lots and lots of entities use the name and sell merchandise. How is that helpful?

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  6. Jeremy R says:

    @EddieInCA:

    Are these next?

    None of those other names have the same long history as an ethnic slur.

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  7. PogueMahone says:

    @Franklin:
    And I disagree with Volokh because I see a difference between something being provided protection, and something being restricted.
    IOW, the Washington Redskins are not being punished for using the name, they’re just not being protected.

    Furthermore, the analogy Volokh employs is distinguishable. Political speech is at the heart of the First Amendment, and SCOTUS has ruled time and time again that government restrictions (or even government protections – i.e. police presence at a Klan rally) on political speech is awarded strict scrutiny. “Redskins” is not political speech.

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  8. Franklin says:

    As much as I’d like to see the name go, I agree with most of Doug’s analysis here. The KKK gets police protection when they march in a parade, as they should. This seems like the exact same thing – the government is providing protection for free speech, no matter how much the speech disgusts you or me.

    And as always, I am *for* free speech – I want to know who the idiots are. In this case, Dan Snyder is broadcasting it loud and clear.

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  9. grumpy realist says:

    Doug–sorry, but Fifth Amendment issues don’t arise here, because having a trademark is a PRIVILEGE, not a right. It is granted by the government under certain circumstances and can be taken away if those circumstances aren’t in existence any more.

    Don’t be confused by the term “Intellectual property” because it’s very easy for a trademark to go POOF without a word about takings: witness genericide of trademarks. No one has ever made a successful argument that when the government voids a trademark due to it becoming too generic the owner should be compensated.

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  10. grumpy realist says:

    @Franklin: Don’t forget there’s a difference between regular speech and commercial speech. I would argue that a trademark falls (if anywhere) under commercial speech and thus can be far more highly regulated.

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  11. rodney dill says:

    @Pete S:

    If I am right the only way this can really impact the team is if, instead of one entity using the name and selling merchandise, lots and lots of entities use the name and sell merchandise. How is that helpful?

    It impacts the Redskins bottom line if other’s can undermine the sales of Redskin’s merchandise. If they choose to forego this source of revenue, then nothing will change, other than there will be an increase in Redskins merchandise available. It should incent them to change the name to stay competitive as an NFL franchise, as far as income is concerned.

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  12. Rafer Janders says:

    A law that allows the government to reject or rescind a trademark that is allegedly “disparaging” is quite clearly a content-based restriction on speech.

    Um, no. The government is not restricting the right of the Redskins to use that name. Use away! What the government is doing is announcing that it will not restrict the rights of others to similarly use the Redskins name, and that if the Washington Redskins have a problem with that, they can’t use the federal courts to do anything about it.

    It’s the trademark, itself, that is the restriction of speech – the speech of others to use that same mark.

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  13. Rafer Janders says:

    At the center of Judge Lee’s decision is the question of whether or not the Redskins name is “disparaging,” which is a central due to the provisions of the Lanham that bar the issuance of a trademark that “disparages” a racial or ethnic group.

    Here’s how to test whether the name is disparaging: would you, as a white man, walk up to an American-Indian and greet him with a cheery “Hey, Redskin!”….?

    You know you wouldn’t. And you know that you wouldn’t because you know that he’d find it disparaging.

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  14. Rafer Janders says:

    @Franklin:

    The KKK gets police protection when they march in a parade, as they should. This seems like the exact same thing – the government is providing protection for free speech, no matter how much the speech disgusts you or me.

    But that’s not an exact analogy — we make distinctions between political speech, such as a KKK rally, and commercial speech, such as trademark registration, all the time.

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  15. rodney dill says:

    @Rafer Janders:

    Here’s how to test whether the name is disparaging: would you, as a white man, walk up to an American-Indian and greet him with a cheery “Hey, Redskin!”….?

    I would if he was wearing a Redskin’s jersey.

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  16. mantis says:

    I don’t think the government should be withholding trademark protection based on that trademark being offensive to some. That there is a pretty slippery slope. Pretty much everything is bound to offend someone these days.

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  17. Jack says:

    @Rafer Janders: I wouldn’t walk up to a middle aged woman and call her a cougar either, that doesn’t mean the Washington State Cougars or many others that use that term, should change their mascot or lose its Trademark.

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  18. Tyrell says:

    It reminds me of the court cases involving what is “obscene” : “I’ll know it when I see it”.

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  19. Franklin says:

    Regarding my analogy with the KKK march, agreed that my “exact same thing” is not really that exact.

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  20. Neil Hudelson says:

    @EddieInCA:

    Cleveland Indians
    Kansas City Chiefs
    Atlanta Braves
    Edmonton Eskimos
    Chicago Blackhawks

    “Indians” is not a disparaging term. It’s similar to “black” vs. “African American.” One is more proper, the other is used in common parlance, including (but not universally so) by many Native Americans.

    “Chiefs” – a term for the head of a Native American tribe, is not disparaging.

    “Braves” – see “Chiefs”

    “Eskimos” – I suppose you could make an argument that that term is offensive. Alaskan Inuits certainly use it to distinguish themselves from all Inuits (which raises the question of why a team in Edmonton is using it), while other Inuits find it offensive due to its historical roots (which are debatable). More info here. Regardless, that would be a matter more for the Canadian government, no?

    “Blackhawks” is actually the most interesting one. “Black Hawk” is not a term for N.A.’s, but rather the name of one particularly fierce leader of the Sauk American Indian tribe, who led two wars against Americans. He was renowned for his fierceness and his leadership abilities. Later in life he wrote an autobiography that was the first autobiography by a Native American to be a best seller. I didn’t know that until this post, and I look forward to reading it now.

    “Redskins,” on the other hand, is akin to calling a team “The Des Moines N*ggers.”

    I hope that clears up why some terms are not in danger of losing any status, and others are clearly offensive.

    On a side note, has slippery slope arguments always been this common? It seems like there are a heck of a lot of them over the last half decade or so. “Changes to health insurance market? Great, now we are going to have death panels. Gay marriage? Great, now people are gonna marry turtles.”

    Calm down, people. Fighting against a derogatory term /= removing all references to any Native Americans ever, anywhere.

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  21. Neil Hudelson says:

    @Jack:

    You’re gonna stand by that statement, and let us all assume you are stupid enough to not understand the difference between a team named after the animal, and a new slang word for a woman of a certain age and sexual proclivity? You are A-OK with letting us all think you are really that IQ deficient?

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  22. Modulo Myself says:

    Let’s get this straight:

    The government has to trademark the Washington Wops. There can be no restrictions on what is trademarked. However, once a name is trademarked, it’s totally legitimate for my business to be shut down because I’m selling unlicensed Washington Wops merchandise. How is this not a regulation of free speech?

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  23. Lenoxus says:

    @Neil Hudelson: Just as with the two meanings of “cougar”, so it is wih “redskin”. Everyone knows the team is named after potatoes or something.

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  24. Tyrell says:

    @Neil Hudelson: How about these : Cleveland Browns, Cincinatti Reds, San Diego Padres, New York Yankees, Detroit Redwings

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  25. Lenoxus says:

    While “redskin” is particularly awful, I am personally uncomfortable with all Indian-based team names. It’s just weird; we don’t do that with other racial groups. Nationalities is one thing (e.g. the Fighting Irish, various teams called the Americans, and funnily enough, the Mumbai Indians cricket team). But would anyone start a team called the Hispanics or the Asians, complete with cartoon caricature logo? It’s just weird.

    Sorry for seemingly demonstrating the slippery slope’s validity. But while some slippery slopes are nonsense, other situations are fractally bad. We’re not obligated to defend as much about the status quo as possible just to make change seem safe. Otherwise we could never legalize gay marriage for fear of proving Scalia right in his slippery-slope-based opinion on Lawrence v Texas.

    That said, while I agree with this trademark decision, I wouldn’t apply it to those other team names, since they’re not slurs. I’m just expressing my personal opinion about what some teams should consider doing of their own free will.

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  26. Neil Hudelson says:

    @Tyrell:

    I mean…do you want me to define every team’s name?

    Ok, Cleveland Browns was named after Paul Brown, their first coach.

    Red is a shortening for “Red Stockings” which was a previous name.

    Padres are about Spanish Priests, or “Fathers.”

    Yankees are named after yankees; not really sure why I have to explain that one.

    The “Red Wings” got their name from one of the original coaches, who wanted to change the name from their current mascot, the “Cougars” (and yes, Jack, that means the animal), and named it after a team he used to coach in Montreal called the “Winged Wheelers.” Essentially, he liked their logo and slapped a red hue over it.

    Since we are now far, far away from any teams that are related to any racial group, let me go ahead and state that the “Colts” are named after the horse, the Cowboys after cowboys, the Giants after people of large stature, the nets after the basketball net (I’m guessing), and the Oilers after Texas Oil (Houston) or Alberta oil (Edmonton).

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  27. Tyrell says:

    @Neil Hudelson: Thanks for bearing with my nagging question. But did you have to mention the cowboys ?
    I always thought the Redwings were named after a Native American.

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  28. grumpy realist says:

    @Modulo Myself: No, the registration wouldn’t have been granted in the first place.

    The problem arises when you have trademarks that weren’t considered derogatory when they were filed but over time the social acceptance of the word has changed, so that finally the word is considered derogatory. (A lot of the fuss that’s been getting kicked up is because we don’t really have that much case law on the books, so we making up a lot of it as we go along.)

    Which is one reason why the derogatory/defamatory mechanism for attacking a trademark doesn’t go after the first 8/15 filing.

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  29. grumpy realist says:

    P.S. For those of us in trademark law, this decision has come down as a “hm, that’s interesting, let’s see what happens at the Appeals Court.” It’s mainly interesting because if nothing else, we’ll get some good case law out of it.

    Never take anything decided at the DC level as being completed.

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  30. Mark Corey says:

    I happen to agree that the nickname redskins is offensive, right up their with nigger but I don’t think we should be having judges proclaiming and ruling what is offensive and what is not. Not a very good call and certainly outside the boundary. very dangerous decision.

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  31. Neil Hudelson says:

    @Tyrell:

    Yeah that one seems like it would be. If I wasn’t raised in a wings household I wouldn’t have known their backstory.

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  32. grumpy realist says:

    @Mark Corey: dude I suggest you pull out the Lanham Act and start reading it. Or go on line and start reading the TMEP (in particular 1203.03(d)) The reason judges make the decision as to what is “derogatory” for the purposes of trademark law is the exact same reason judges make the decision as to whether a remark is “slander” or not. It’s a part of the law, period.

    Now, you can try to get the section of the Lanham Act disallowing derogatory trademarks repealed, but that’s the only way you’re going to keep judges or the TTAB from making a judgment.

    For further law, see:here.

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  33. grumpy realist says:

    P.S. Can we please not have silly comments from people who obviously don’t have the foggiest idea how the U.S. legal system works?

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  34. Dean says:

    @Neil Hudelson:

    Way to duck the “Red Sox, Royals, Rays and Dodgers” name controversy Hudelson

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  35. Rafer Janders says:

    @grumpy realist:

    P.S. Can we please not have silly comments from people who obviously don’t have the foggiest idea how the U.S. legal system works?

    What, you want to shut down this comments section entirely? Censorship! Censorship! First Amendment violation!!

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  36. T says:

    @Neil Hudelson:

    “Indians” is not a disparaging term.

    no but their logo most certainly is. chief wahoo? come on…

    “Chiefs” – a term for the head of a Native American tribe, is not disparaging.

    “Braves” – see “Chiefs”

    both of these teams utilize native american imagery “screaming indian” and condone things like “the chop”…you gonna try to tell me that’s not offensive either?

    “Blackhawks” is actually the most interesting one.

    not really, thank goodness no one cares about that “sport” enough to bring this up.

    i’ll agree redskins is an outright slander. but the rest of the teams intentionally use violent imagery and paint the picture of native americans being nothing more than savages ready for battle.

    Fighting against a derogatory term /= removing all references to any Native Americans ever, anywhere.

    simply untrue.

    http://www.usatoday.com/story/sports/2014/05/04/redskins-mascot-nickname-indians-wahoo-chiefs-blackhawks-braves/8705159/

    The longtime Cleveland sports fan tweeted a picture meant mostly for his friends, as he had few followers. But re-tweets gave the missing logo larger circulation, where it struck a nerve. Angry Clevelanders called Brown a traitor and a moron and, oddly, a communist.

    It wasn’t just that Brown had “de-chiefed” the jersey — his term of art. The real power of the image resides in the outline of emptiness of the threads left behind. The mind’s eye can still see the big-toothed, idiot-grinning, red-faced caricature, even if all that actually remains is its ghostly outline.

    A grass-roots movement inspired by Brown gained momentum on social media over the weekend as thousands using the hashtag #DeChief called on the Cleveland team to retire Chief Wahoo — and on Nike to stop producing merchandise with that logo. Jacqueline Keeler, a founding member of an activist group called Eradicating Offensive Native Mascotry, said her group borrowed the DeChief idea from Brown and called on fans to make it a trending topic on Twitter. The hashtag was used 4,236 times from noon Saturday to noon Sunday.

    “I liked Chief Wahoo as a younger person,” Brown told USA TODAY Sports. “As I got older, I sort of evolved from liking it to being ambivalent to becoming opposed. If you have ever seen images with hidden pictures in them, once you see the hidden picture, that’s all you can see. That’s what happened to me with Chief Wahoo. Once you see it for what it really is, you can’t un-see it.”

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  37. Neil Hudelson says:

    @T:

    no but their logo most certainly is. chief wahoo? come on…

    It sure is. The logo, however, is not the subject at hand. The conversation was about team names.

    both of these teams utilize native american imagery “screaming indian” and condone things like “the chop”…

    Again, not the discussion at hand. The article’s subject is about a team name. Eddie brought up other team names, the discussion that entailed was then, entirely, about team names. I really do not understand why you think the team’s logo and culture is relevant. Want a conversation about racist team cultures? Cool. Let’s have it. I’ll probably agree with you. But it’s not germane right now.

    you gonna try to tell me that’s not offensive either?

    I never said such a thing, since the conversation you are referring to has never existed.

    And then the rest of your post is about the evolution of logos for a few teams, many of which are, indeed, racist, but again is not germane to a discussion about inflammatory language as it pertains to copyright protections.

    (Or, to put it another way, logos and traditions can change without legal interference, the legal name of an organization, and one whose name itself is the marketable product, is a bit of a different matter. )

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  38. T says:

    @Neil Hudelson:

    the discussion that entailed was then, entirely, about team names. I really do not understand why you think the team’s logo and culture is relevant

    i dont know. you think if the fsu seminoles were called the FSU manatee’s they’d still have some white guy dress up and parade around on a horse and throw a flaming stick into the ground while 85 thousand people do the chop?

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  39. T says:

    This is from the same woman who is behind the lawsuits against the redskins.

    http://indiancountrytodaymedianetwork.com/2015/04/10/blackhorse-100-years-chief-wahoo-and-grinning-face-racism-159960

    In the growing anti-Native American mascot movement, it seems natural the Cleveland Indians will be targeted for their name and logo. Although the term “Indian” is not viewed as a racial epithet [the term Indian has also been debated by Native people who chose not to identify with names given to them by the colonizer], like the term “redskins” their name, “Indians,” puts the identity of a race, an ethnic group, in a vulnerable position for the benefit of American entertainment.

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  40. anjin-san says:

    allegedly “disparaging” i

    I don’t think that there is much doubt that “Redskins” is, in fact, disparaging. At any rate, if you’ve ever dealt with copyrights, you know that they are not etched in stone.

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  41. rodney dill says:

    @T: FSU has permission from the Seminoles to use the Seminoles as their mascot.

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  42. rodney dill says:

    @grumpy realist: Your P.S. actually sums up a lot about how our legal system actually works.

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  43. grumpy realist says:

    @rodney dill: Well, a lot of us in IP are pretty convinced that the Supreme Court doesn’t understand patents very well….

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  44. rodney dill says:

    @Neil Hudelson:

    “Redskins,” on the other hand, is akin to calling a team “The Des Moines N*ggers.”

    Regardless of the outcome of the naming of the Washington Redskins, I’ll probably never equate all uses of the name Redskins to the use of the N-word. While I believe it is as equally derogatory to call an American Indian a Redskin as it is to call a black person the N-word, I’ll never think of using the term ‘Redskins’ (as in the football team) as being the same. I have no trouble reconciling that for me the same name has two entirely different meanings, one derogatory and one with positive connotations, depending on the context. I also have no doubt that many will continue to see Redskins as only a derogatory term. I can’t think of any example where the N-word has been used with a positive connotation, as has the name Redskins (as applied to the Washington Redskins.)

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  45. de stijl says:

    @rodney dill:

    While I believe it is as equally derogatory to call an American Indian a Redskin as it is to call a black person the N-word, I’ll never think of using the term ‘Redskins’ (as in the football team) as being the same.

    Isn’t that just cultural conditioning though? Had the Des Moines N-words been around as a football team me since (help me, Google) 1932 and were on TV every Sunday and ESPN ran highlights every 15 minutes, wouldn’t we have just absorbed the absurdity of having this racial slur be a team name the same we’ve absorbed the Redskin name?

    That a racial slur is ubiquitous because it is the name of an NFL franchise doesn’t make it any less derogatory.

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  46. rodney dill says:

    @de stijl: I’m sure a good deal of it is cultural conditioning. Probably applies to the use of a lot of our words.

    Had the Des Moines N-words been used as the proud name of football team since the 30’s, and widely accepted as such by people of all races and backgrounds then it too, may be held to have two connotations (only one being a racial slur). It’s hard to envision that, given the current ‘cultural conditioning’ toward the N-word. For me I don’t think that word can ever be rehabilitated to also have a positive connotation.

    It’s not being ubiquitous that makes the name of an NFL franchise’s name less derogatory, than when its used as a a racial slur, it’s that it’s not being used as a racial slur in that context.

    This is only an intellectual point as I’m not arguing this as a reason to keep the name around, I only wanted to comment on Hudelson’s comparison of Redskins vs. N-words as being equally derogatory. I know for some it is. For me it is not.

    Personally I’d like to see the Redskins become the Washington Gridlock

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  47. Tillman says:

    @grumpy realist: @Rafer Janders: I like every other American of a certain age have seen at least five hundred hours of Law & Order, obviously I am confident in my legal reasoning.

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  48. de stijl says:

    @rodney dill:

    For me I don’t think that word can ever be rehabilitated to also have a positive connotation.

    Many folks are trying to. I think it’s a fool’s game to play, but the N-word is definitely being recontextualized in music and idiomatic speech today. I have a handy rule of thumb in this area; if Chuck D is not on board, then I’m leery too.

    It’s not being ubiquitous that makes the name of an NFL franchise’s name less derogatory, than when its used as a a racial slur, it’s that it’s not being used as a racial slur in that context.

    That’s a hard sentence to unpack. This just makes my brain hurt and at one point in my life I got an “A” in grammar. I got where you going eventually, but what a trip!

    Personally I’d like to see the Redskins become the Washington Gridlock

    I’d go for the Washington Tanks. (It’s a long story and not really very funny, but it makes me laugh.)

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  49. Modulo Myself says:

    @grumpy realist:

    I understood that. According to Doug though apparently the Lanham Act should be revised in order to allow the Washington Wops to be trademarked. Thus free speech rights are preserved. This in turn means that my business of producing fine Washington Wops gear can be punished because of infringement. This is a violation of my free speech, as far as I can tell. Oddly enough this never seems to bother people like Doug.

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  50. Rafer Janders says:

    @rodney dill:

    I have no trouble reconciling that for me the same name has two entirely different meanings, one derogatory and one with positive connotations, depending on the context.

    What on Earth is the positive connotation of “Redskin”?!?! Seriously, see if you can write a sentence where you use it in a positive sense…..

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  51. Neil Hudelson says:

    @Rafer Janders: .

    I think he means the team itself is the positive connotation. “The Redskins win the superbowl!” would be the example.

    I’m not buying it, as I dont’ think “The Des Moines N*ggers win the Superbowl!” would make that word positive at all.

    Also, my apologies to Des Moines. You are a lovely small city that doesn’t get enough credit.

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  52. Rodney Dill says:

    @Neil Hudelson: Your first paragraph covers the response to Rafers nicely.

    And if you read my comments above you’ll see I agree with your second paragraph as well. Just naming a team the N-words now, doesn’t suddenly give it a positive connotation, or even an non-racial slur connotation. There’d be far to many suspicions, likely correct, that it was being done for the wrong reason.

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  53. rodney dill says:

    @de stijl: Sorry for the convoluted sentence, I know the idea I have, but it was hard to find the right wording.

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  54. Tyrell says:

    Would this judge have the authority to strike any business name or trademark that he thinks is offensive ?

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  55. de stijl says:

    @rodney dill:

    No worries.

    I had to say it out loud about seven times, but eventually I got where you were going.

    It was kind of like when I first got introduced to reading formal German. You internally translate the words, hold on- what’s that? – you look it up, okay gotcha, the phrases are lining up, the pronouns give a few tantalizing hints, we have the subject, but where the hell is the verb? At the very end?!? But that changes everything! That was an M. Night Shyamalan sentence.

    It’s not being ubiquitous that makes the name of an NFL franchise’s name less derogatory, than when its used as a a racial slur, it’s that it’s not being used as a racial slur in that context.

    That sentence should be a Lumosity quiz.

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  56. T says:

    @rodney dill: yep. they paid.

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  57. Tyrell says:

    @T: “the chop” – ? What is derogatory about that ? If anything it symbolizes strength, toughness, courage, skill, character, determination.

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  58. grumpy realist says:

    @Rafer Janders: “I have yams, redskin potatoes, Idaho potatoes, and a few beets.”

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  59. grumpy realist says:

    @Modulo Myself: Arrrgh….usually Doug is smart enough to not fall into the Platonic Law trap, which is what he is doing here. The Lanham act has been passed, has been in existence for some time, and good luck mucking around with it again.

    YES if there’s enough stink you can go ahead and get law fixed up but it’s going to be something like “there’s no bloody course of action to go against an infringer!” as opposed to “a bunch of football teams are whining because the Lanham Act doesn’t allow them to use iffy names.” Plus, if you look at the history of the enforcement of that clause, you get some really tacky names getting throw out.

    Commercial speech ain’t the same as personal speech and I’m surprised that Doug has decided this is the hill he wants to die upon.

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  60. grumpy realist says:

    @Tyrell: (sigh). Please read up on law and how it occurs in the United States. Someone would have to bring a course of action to get the issue before the court. Individual business names usually go through a form of inspection when one applies for limited liability status and registers the name with the state. Once its passed, you aren’t going to get some random person dragging the business into court for the sake of their name (what would the course of action be? “I’m offended by that name!” Yeah, right, and you know what they’re going to do? They’re going to bounce your ass out of the courtroom. You MIGHT be able to file a complaint if it is obviously derogatory to you but it would be surprising if such a name had been approved in the first place.)

    For trademarks (note: business names are NOT trademarks), the easiest way is to appeal to the USPTO. You need to file a Petition to Cancel, giving grounds as to why the trademark should be cancelled. If a trademark has already been granted, there is an assumption of validity, so now the burden of proof is on the challenger. So if you’re miffed at a competitor’s possible trademark because you think it’s too close to your own, make sure you challenge BEFORE it’s been registered…..

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