Given that I’ve been quite vocal about my interest in the Washington NFL team changing its name from the disparaging "Redskins" moniker to something more civil, you might think that I’m doing some kind of happy dance in my office now that the USPTO has rescinded the trademark registration for the team (something I had predicted, along with others, a while back). Look, I won’t pretend like any steps moving us closer to a world where that team’s name is changed don’t make me happy, but I do take the counterpoints seriously. I don’t particularly care for a world where speech deemed "offensive" can’t be uttered, nor do I generally like when the government sticks its nose in most things. I understand that completely — I just think there are some serious arguments for ensuring the government doesn’t grant exclusive rights to organizations on the backs of horribly racist terms. So when the USPTO says they’re removing the registration because the term is disparaging and they don’t want to grant rights for the team to seek trademark damages to that kind of language in all of our names, I happen to think that make sense.
“We decide, based on the evidence properly before us, that these registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered,” the board wrote in its opinion, which is here.
Again, if you think this is yet another example of government’s intrusion on free enterprise, I get where you’re coming from. After all, damn it, we wouldn’t need to have come to this point if the citizens of D.C. had risen up and refused to go to games until the name was changed. That would have been a far preferable solution. That said, the provision in trademark law forbidding marks of a racial nature is fairly clear and I think there’s fairly good reason for that language. As plaintiff Amanda Blackhorse said:
“I am extremely happy that the [Board] ruled in our favor,” Blackhorse said in a statement. “It is a great victory for Native Americans and for all Americans. We filed our petition eight years ago and it has been a tough battle ever since. I hope this ruling brings us a step closer to that inevitable day when the name of the Washington football team will be changed. The team’s name is racist and derogatory. I’ve said it before and I will say it again – if people wouldn’t dare call a Native American a ‘redskin’ because they know it is offensive, how can an NFL football team have this name?”
This ruling isn’t only in the name of being politically correct to Native Americans, it’s about a government office that purports to represent all of us granting exclusive rights based on language that an overwhelming majority of outlets define as racist. The public can and does have an interest in how government represents us and granting trademark to that kind of term just isn’t okay.
Now, before anyone gets their First Amendment panties in a twist here, the team doesn’t lose the right to use the name and even keeps its registered mark during the appeals process, which has already begun.
The team will almost certainly appeal the case, and it will be able to keep its trademark protection during appeal. Losing the trademark would not force the team to change its name, but it would allow anyone who wanted to use “Redskins” on merchandise or through other means to do so, which could cost the team — and, because of the NFL’s revenue-sharing model, other NFL teams — “every imaginable loss you can think of,” as the team’s lawyers argued in the original case. For that reason, the trademark has long been thought of by opponents of the team’s name as the easiest avenue to changing it.
If Dan Snyder, a man who has filed lawsuits claiming anti-semitism, wants to stick to his racist guns and keep the team name, he can. He just doesn’t get the ability to seek damages that a registered mark affords him. Speech is actually opened up by this ruling, not infringed upon. In other words, for those of you that think the team name is awesome and/or the USPTO shouldn’t be getting involved in this, all is not lost. The racist term you wish to protect can still be used by the team if it wishes, it’s just that those of us who think the government shouldn’t be sanctioning that kind of thing are finally being represented.
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