Thursday, June 19, 2014

Will The Washington Redskins Get Scalped?

The Washington Redskins exist in a non-politically correct environment. They are being excoriated because of the use of their name “Redskins.” Many Native Americans and others object to it. Senate Majority Leader Harry Reid has vowed to not go to a Redskins game. Dan Snyder, the Redskins owner, has refused to change the name and the National Football League has backed his decision. He has often been a “lone wolf.” The United States Patent and Trademark Office yesterday changed the calculus of the debate. The Trademark Trial and Appeal Board voted 2:1 to cancel the trademark registrations of the Washington Redskins on the ground that the name is disparaging to Native Americans: “(W)e 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 federal statute bars the issuance of trademarks that “may disparage” individuals or groups or “bring them into contempt or ridicule.” The standard is not measured by today’s mores but by those in effect at the time of registration. Six “Redskins” trademarks are at issue. They date from 1967, 1974, 1978, and 1990. The newer dates are more suspect than the earlier ones. The first complaint against the use of the “Redskins” name came in 1992. The team won that case in 2003. A second complaint was filed in 2006 by 5 Native Americans who claimed the name disparages them. Two rights of Daniel Snyder and the Redskins are being violated. The first is Freedom of Speech. The First Amendment protects unpopular speech and speech which may be offensive to some. The disparagement clause is so broad and vague as to be open to abuse. Thus, campus speech codes fail. Second is the violation of the Fifth Amendment Property Rights. Snyder is being deprived of the value in the property rights of the Redskins based on a violation of the First Amendment. Trademarks are a form of intellectual property. Let is assume that the decision stands on appeal to the courts. It does not solve the issue of the dislike for the use of the word “redskins.” It could result in a multiplicity use of the “Redskins” name since in theory, any person, partnership, or corporate entity could use the Redskins name and logo seemingly unworried by a lawsuit by the Washington Redskins. Thus, it could result in more apparel items and souvenirs than currently marketed. On the other hand the Redskins would still retain their common law rights in the trademarks. Their litigation costs may be more expensive, but the Washington Redskins would prevail. Other similarly offensive teams would be the Atlanta Braves, Cleveland Indians, and Golden State Warriors. Both the Atlanta Braves and Florida State Seminoles feature the Tomahawk Chop. The Florida Seminole Tribe supports Florida State’s use of the name. We should be leery of using the word “scalper” at athletic events. We should stay off the scenic Massachusetts Mohawk Trail. Other suspect brand names are Aunt Jemima and Uncle Ben, the Land O’Lakes girl, Cracker Jacks, the Frito Bandito, Eskimo Pie, and Speedy Gonzalez. On a related note, the Coppertone Girl with her pants down smacks of kiddie porn. The Washington Redskins will appeal. The previous case dragged on for 11 years. The trademarks are protected until final resolution.

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