Update

The trademark–and public opinion–war over the Washington Redskins has been waging on for a while. But there’s a new development in the form of a ruling from an appeals court that may impact the Redskins’ ability to keep their offensive name. The U.S. Court of Appeals for the Federal Circuit in Washington, D.C. just struck down a provision of federal law that prevented the copyrighting of offensive names on First Amendment grounds.

The case in front of the appeals court involved a band called “The Slants,” an Asian-American group led by a man named Simon Tam who chose their name in an attempt to “reclaim” the traditionally-derogatory phrase.

The Slants, Asian-American band from PDX, can trademark controversial name, U.S. court rules https://t.co/AjahNdAxAW pic.twitter.com/b8QMi4hWLP

— The Oregonian (@Oregonian) December 22, 2015

The band became embroiled in a legal dispute after it attempted to file for trademarks; the United States Patent and Trademark Office (PTO) refused the filing. Particularly at issue was something called the Lanham Act, which was passed in 1946, and “prohibits registration of marks considered scandalous or immoral.” However, the recent appeals court ruling decided that parts of the applicable section (2a) were unconstitutional, stating:

The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional. Because the government has offered no legitimate interests justifying § 2(a), we conclude that it would also be unconstitutional under the intermediate scrutiny traditionally applied to regulation of the commercial aspects of speech. We therefore vacate the Trademark Trial and Appeal Board’s (“Board”) holding that Mr. Tam’s mark is unregistrable, and remand this case to the Board for further proceedings.

Obviously the case of the Slants and the case of the Washington Redskins are very different–one is a band using a racial slur in an effort to reclaim it, the other is a massive sports franchise using a racial slur despite its implications. Those nuances exist in a socio-political sense, but in a legal sense, the cases are very similar. The appeals court didn’t rule that the Slants could use their name because of the way they were using it, but rather because of First Amendment issues–ones that also could apply to the Redskins.

The Washington Redskins’ case is under review by the 4th Circuit Court of Appeals, and some legal experts have predicted that it may make its way all the way to the Supreme Court. Since the Lanham Act was passed over 60 years ago, a lot has changed, including the inception of Constitutional protection for commercial speech. But given that the Redskins’ case–which is based on very similar grounds–is making its way through the court system, the fact that another appellate court found that the applicable provisions of the Lanham Act were unconstitutional could end up being pretty convincing for the court hearing the appeal. Ultimately, the question of “offensive speech” as it relates to trademarks is far from being answered.

Update

In light of the Redskins’ recent win that garnered the team the NFC East title, the debate over the team’s name remains hot and heavy. I got the chance to talk about the case with Professor Robert Sherwin, who teaches at Texas Tech University School of Law, and is an expert in federal civil procedure and First Amendment Law. He pointed out that while this ruling may not necessarily persuade the federal judges in the Redskins trademark case, the fact that the U.S. Court of Appeals for the Federal Circuit in Washington D.C. accepted that part of the Lanham Act is unconstitutional–and was the first court to do so–is noteworthy. Sherwin also shared that this is likely “a big ticket kind of case” and an issue headed for the Supreme Court, although it’s yet to be seen which case the Supreme Court will decide to take on.

Sherwin also highlighted a similar First Amendment Case, decided by SCOTUS just last summer–Walker v. Texas Division, Sons of Confederate Veterans, Inc., in which the court decided 5-4 that the government wasn’t violating free speech when it rejected a Confederate Flag license plate design. However, in a move that surprised many, it was Justice Clarence Thomas who sided with the more traditionally liberal wing of the court to decide that it was not a First Amendment violation. Sherwin pointed out that both sides could use Walker in their arguments, and that the decision could hinge on Thomas, who is “probably the court’s foremost expert on First Amendment issues” when the case makes it the Supreme Court.

There’s a lot that’s up in the air right now when it comes to the Redskins’ name–the recent decision as it relates to the Slants may have only further muddied the waters. But one thing seems almost inevitable to many of us keeping an eye on these cases–this is something that the Supreme Court will have to weigh in on sooner or later.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Appeals Court Okays Trademarking Offensive Names: How Will it Affect the Redskins? appeared first on Law Street.

In June of 2014, the U.S. Patent and Trademark office cancelled six federal trademark registrations for the Washington Redskins, declaring the team name “disparaging to Native Americans.”  This ruling was reinforced earlier today and while owner Dan Snyder is scrambling to defend the trademark, this ruling will unfortunately not actually force Snyder to change the name of the team.

Stripping the team of the trademark is an important first step, but there has been no other legal action leveled against the team that will result in an official name change. Snyder and team President Bruce Allen have doubled down on preserving the team name, finding allies in presidential candidates Donald Trump and Jeb Bush. Despite overwhelming protest from the Native American community (and the American populace in general), it seems like the leadership of the team is determined to retain the name by any means necessary. In 2013, Snyder released a letter claiming that:

After 81 years, the team name ‘Redskins’ continues to hold the memories and meaning of where we came from, who we are, and who we want to be in the years to come.  We are Redskins Nation and we owe it to our fans and coaches and players, past and present, to preserve that heritage.

In a nation where there are infinite loopholes that let teams retain offensive names, the Redskins are an omnipresent reminder of exactly how far we still have to go to create and protect racial equality. Snyder’s disconnect from the reality of the American political landscape and the importance of inclusive language is nothing short of disturbing. Eighty-one years of ignoring organized protest against a racial slur isn’t a legacy, it’s a travesty. Snyder “owes” nothing to the “nation”–football fans turn up to games because they want to see their favorite players win, not because they are demonstrating solidarity with the management’s decision to stay on the wrong side of history. His decision to retain the name is purely financial, which is exactly why he has fought so hard to retain the trademarks.

Snyder appears to be fully aware of the nonsensical nature of his claim, as evidenced by his establishment of the Washington Redskins Original Americans Foundation in 2014, which is dedicated to providing resources to Native communities across the country.  If the term “Redskins” is truly a term full of memories and heritage, why would he use the term “Original Americans” when establishing his foundation?  The contradictory nature of the Foundation’s name reveals that Snyder is not ignorant of the offensive nature of the slur. The Foundation is a transparent attempt to assuage his guilt and pacify Native American activists. Despite Snyder’s efforts to build a positive PR strategy, a new generation of Native youth is growing up surrounded by the slur–seeing it on television screens, t-shirts, and toys across the country. Constant use of the slur is not only frustrating for this generation, it endangers their perception of safety and their ability to learn. If Snyder truly wants to clear his conscience and make peace with the protesters, he’ll need to put in more than minimal effort. This is not a minor gaffe or an honest mistake. The use of a racial slur in the team’s name is a conscious action, which prioritizes profit over equality and inclusion.

Not everyone subscribes to the idea of karma, but if there ever was a case for its existence, it is the Washington Redskins. Since Dan Snyder purchased the team, the team has lost spectacularly and consistently. There are dozens of reasons to change the team’s name, but seeing as none of them have yet swayed management, I’d like to put forward a new one:

Snyder, perhaps if you took a racial slur off of your helmets, your jerseys, your field and your merchandise, the stars would align in your favor and you would be able to win a game.

I hate to think that such an insane idea could actually impact Snyder’s attitude, but at this point, it’s not a stretch to think that a man this deluded about the reality of the world believes that stars can control his fate.

Jillian Sequeira

Jillian Sequeira was a member of the College of William and Mary Class of 2016, with a double major in Government and Italian. When she’s not blogging, she’s photographing graffiti around the world and worshiping at the altar of Elon Musk and all things Tesla. Contact Jillian at Staff@LawStreetMedia.com

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This weekend was a huge win for Native American activists across the country after California became the first state in the nation to pass a law banning schools from using “Redskins” as a team name or mascot.

The measure, which was signed into law by Governor Jerry Brown on Sunday, will force the four schools in the state still using the nickname to drop the offensive moniker by January 1, 2017, or risk losing public funding.

THANK YOU @JerryBrownGov ! #Wehaveavoice #thenamehaschanged #ChangetheMascot pic.twitter.com/SeDPyqpl0b

— trumpetnative (@trumpetnative) October 12, 2015

This is a big victory for groups like Change the Mascot, who have campaigned for years to rid the racial slur from sports organizations. In a joint statement Oneida Indian Nation Representative Ray Halbritter and fellow Change the Mascot leader National Congress of American Indians Executive Director Jackie Pata praised California for “standing on the right side of history by bringing an end to the use of the demeaning and damaging R-word slur in the state’s schools.” They wrote, 

They have set a shining example for other states across the country, and for the next generation, by demonstrating a commitment to the American ideals of inclusion and mutual respect.

Their historic step to build a better future stands in stark contrast to the dogged inaction of Washington’s NFL team, which in the face of all the evidence that this term degrades and offends Native Americans, continues to defend and promote the slur for its own financial gain.

The most populous state in the country has now taken a stand against the use of this insidious slur in its schools, and Change the Mascot expects more states to follow. This landmark legislation eliminating the R-word in California schools clearly demonstrates that this issue is not going away, and that opposition to the Washington team on this issue is only intensifying. The NFL should act immediately to press the team to change the name.

The message effectively called out the Washington Redskins football franchise for its refusal to change its name despite protests from Native Americans warning that the name is offensive and essentially the same as calling an African-American person the “n-word.” The four California schools that would be forced to change their mascots don’t agree with this argument, calling the decision a “disappointment.” The schools include Gustine High School in Merced County, Calaveras High School in Calaveras County, Chowchilla Union High School in Madera County and Tulare Union High School in Tulare County. Tulare’s Principal Michelle Nunley was clearly upset with the ruling according to the Los Angeles Time. Nunley, who is part Ottawa Indian and also happens to be the mother of the Redskin Warriors star running back Mello Harris tole the Times,

We took students to the Senate education committee. We thought it would be a great educational experience. We had a letter from our local tribe saying they supported us. If they don’t have a problem how can we be causing offense? The senators were rude. They called us insensitive and racist.

It’s clear that there are still mixed feelings about the ruling, but California’s decision does appear to be a step in the right direction. It will be interesting to see if this new law has any impact on the football team in our nation’s capital.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

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There were a lot of big news stories this year, from the Olympics in early 2014 to the ongoing Sony hack. Read on to learn about the top 15 news stories of 2014.

1. The Winter Olympics: $how Me the $ochi

Image courtesy of Atos via Flickr

The 2014 Olympics were hosted in Sochi, Russia, this winter, and the entire event was marked by controversy after controversy. The Russians were chosen to host the Olympics because of an impressive, expensive bid to the International Olympic Committee (IOC). However, the chaos of the 2014 Games left many wondering whether or not cash should be the deciding factor in the selection process.

2. Malaysian Airplane Crash: Who’s Liable?

Image courtesy of abdallahh via Flickr

In March, the world watched as a Malaysian Airlines flight disappeared, and many families were left devastated. It was a horrifying tragedy, but many were wondering who was to blame for the catastrophe, or more appropriately, who was liable? Given that much is still unknown about the crash, the legal questions are far from being answered.

3. Punishing Donald Sterling Is About to Get a Lot Harder

Image courtesy of Michael via Flickr

Clippers owner Donald Sterling came under fire after an audio recording of him making racist statements came to light. NBA Commissioner Adam Silver levied a notable punishment against Donald Sterling. However, given the unprecedented level of punishment, there were significant legal concerns.

4. An Open Letter to Shailene Woodley: What Every Not-a-Feminist Needs to Hear 

Image courtesy of Red Carpet Report on Mingle Media Tv

One of the most talked about stars of 2014 was Shailene Woodley–she starred in films such as Divergent and The Fault in Our Stars. However, she also made headlines for a less flattering reason–for saying that she wasn’t a feminist. Unfortunately, she had the definition of feminism wrong.

Answer Emma Watson’s Call for Gender Equality

Image courtesy of EyesonFire89 via Flickr

However, another movie starlet, Emma Watson of Harry Potter fame, gave an amazing speech this year about the importance of feminism and equality. Unlike Woodley, her definition of feminism was spot-on, and she made a great appeal.

5. SCOTUS Steps Up Amid Execution Controversy

Image courtesy of [Ken Piorkowski via Flickr]

6. Trigger Warnings Creep Off the Web and Into the Classroom

Image courtesy of OpenClips via Pixabay

Trigger warnings are a common sight on websites, in order to alert readers to content they may find troubling. However, trigger warnings started to make their way off the internet and possibly onto college syllabi. That change has led to concerns that trigger warnings may end up creating optional content in college courses.

7. The Dark Side of the World Cup: Corruption, Bribery, and Civil Unrest

Image courtesy of Amil Delic via Flickr

This summer, the world watched as the 2014 World Cup took place in Brazil. But, much like the 2014 Olympic Games, the World Cup had problems with corruption, lack of organization, and bribing scandals. Not only was the World Cup an interesting look into the the politics of Brazil, but it says a lot about what may happen at the 2022 World Cup in Qatar.

Oh, and that guy who bit another player: The People vs. Luis Suarez

Image courtesy of [George via Flickr]

8. The Senate Torture Report: Government Infighting Over Release

Image courtesy of Justin Norman via Flickr

The Senate torture report was finally released a few weeks ago, but there was a lot of infighting prior to the release. Major players included the U.S. Senate, particularly the Senate Intelligence Committee, the CIA, and the White House.

9. We Should All be Upset About What’s Going on in Ferguson: Here’s Why

Image courtesy of Elvert Barnes via Flickr

In early August, a young man named Michael Brown was killed in Ferguson, Missouri, by Officer Darren Wilson. The following weeks led to protests over a few different topics, including police militarization, racial profiling, and First Amendment issues.

10. Ebola and America’s Fears

Image courtesy of CDC Global via Flickr

This year, Ebola has killed thousands in Western Africa, particularly in Liberia, Sierra Leone, and Guinea. Globalization and international travel led to a case making it to the United States, sparking fear around the nation.

11. Strikes Against ISIS in Syria: Shaky Ground for Obama Administration

Image courtesy of Official US Navy Page via Flickr

The U.S. has been waging war against ISIS since it emerged in Syria and Iraq. Early this fall, the U.S. and some Middle Eastern allies bombed ISIS. Like any international action, the U.S. needed to be able to legally justify their actions, but that may be easier said than done.

12. The Washington Redskins: What’s Next in the Name Debate?

Image courtesy of Keith Allison via Flickr

The Washington D.C. NFL team is called the “Redskins,” a name that has received ire for its offensive origin. Journalists have begun to refer to the team by almost any other name, and this summer the US Patent office cancelled the team’s trademark. Whether or not the name will ever be changed remains to be seen.

13. The CIA: How to Get Away With Torture

Image courtesy of takomabibelot via Flickr

That Senate Intelligence torture report was finally released, and it was a disturbing revelation into the practices of the CIA. However, despite the fact that torture is illegal internationally, it’s doubtful that the U.S. will ever see any legal ramifications.

14. Australian Hostage Situation Ends: A Community Stands Together

Image courtesy of Corey Leopold via Flickr

Earlier this month, there was a horrifying hostage situation in Sydney, Australia. But the aftermath was heartening, as Australians banded together to show the world that the actions of one mad man does not justify discrimination on a wide scale.

Australians School the World on How To Not Be Racist

Image courtesy of Chris Beckett via Flickr

Here’s a further look into the amazing Australian compassion after the Sydney hostage situation. The hashtag #IllRideWithYou was created, in order to provide support for the Australian Muslim community. Citizens of Sydney offered company to Australian Muslims who needed to travel on public transportation without fear of discrimination.

15. Disturbing New Developments in the Continuing Sony Hacking Scandal

Image courtesy of The City Project via Flickr

One of the biggest stories of the end of 2014 was the Sony Hacking scandal, when a hacking group called the Guardians of Peace (GOP) made its way into Sony’s computer system. The story escalated quickly, as the hacking group demanded that a movie called The Interview not be released, or drastic action would be taken.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post ICYMI: Top 15 Top News Stories of 2014 appeared first on Law Street.

Midway into a new football season, there are certainly plenty of controversies surrounding the National Football League. Between the ongoing debate on concussions and player safety and the number of NFL players who are under public and legal scrutiny for their actions on and off the field, the NFL is no stranger to scandal. But one of the hottest topics for a while now has been the status of the Washington Redskins’ name. Read on to learn about the controversy, and where it now stands.

Washington Redskins’ History

Up until the 1970s, high school, collegiate, and professional sports teams across the country used mascots depicting Native American historical figures and culture to evoke values of courage, strength, and tenacity, in order to signify these values in the realm of sports. Fans became emotionally attached to these mascots and these symbols; showing their appreciation by performing rituals such as “tomahawk chops” and dressing up in makeshift Native American regalia to support their team. However, these mascots and rituals received backlash during the late 1960s and 1970s, as Native American advocacy groups brought attention to the stereotypical nature of these mascots and their negative portrayal of American Indian culture.

At the request of local tribes, many of these teams abandoned their mascots for less controversial ones, leaving a relatively small number left carrying names such as “Braves,” “Indians,” and the most controversial “Redskins.” In addition to a handful of high school and collegiate teams, five professional sports teams retain their use of American Indian nomenclature: the Washington Redskins, the Atlanta Braves, the Chicago Blackhawks, the Cleveland Indians, and the Kansas City Chiefs. Debate has raged over the past couple decades as to whether these teams and their mascots represent racial slurs and harmful, derogatory stereotypes; or whether they are merely evoking Native American culture out of respect and honor for their courageous spirit.

A lawsuit, which has bounced back and forth between various overturned decisions, was brought against the Washington Redskins in 1992 arguing that its name used a racial slur and should be changed. More resolute than ever in the face of this opposition, the team’s owner Daniel Snyder went on record in 2013 that the Redskins would “NEVER” change its name. In response, a bill was introduced to the House of Representatives in March 2013 by Representative Eni Faleomawaega of Samoa called the “Non-Disparagement of American Indians Trademark Registrations Act of 2013,” a bill that would essentially cancel all trademarks on the name “Redskins” and prevent future parties from trademarking the name. While the bill does not look likely to be passed, it raises interesting questions on the nature of Native American mascots and the legality of their use.

Cancellation of the Trademark

During summer 2014, the Washington Redskins trademark was cancelled by the US patent office. It was cancelled in response to a ruling by the independent Trademark Trial and Appeal Board (TTAB). As the Patent Office put it in its media fact sheet:

The TTAB — an independent administrative tribunal within the USPTO — has determined, based on the evidence presented by the parties and on applicable law, that the Blackhorse petitioners carried their burden of  proof. By a preponderance of the evidence, the petitioners established that the term “Redskins” was disparaging of Native Americans, when used in relation to professional football services, at the times the various registrations involved in the cancellation proceeding were issued. Thus, in accordance with applicable law, the federal registrations for the “Redskins” trademarks involved in this proceeding must be cancelled.

The lawyers and administration of the Washington Redskins have said that regardless of the Patent Office’s decision, they will continue to use the name, logo, and produce paraphernalia.

Media Response 

Within the last year or so, more and more TV newscasters, journalists, and media outlets have refused to use the word “Redskins.” Instead, they refer to it as the Washington Football team. As of this summer, the Washington Post announced that in its editorials it will not use the name of the team. As the editorial board put it:

While we wait for the National Football League to catch up with thoughtful opinion and common decency, we have decided that, except when it is essential for clarity or effect, we will no longer use the slur ourselves. That’s the standard we apply to all offensive vocabulary, and the team name unquestionably offends not only many Native Americans but many other Americans, too.

Who wants to keep the name as is?

Advocates of Native American mascots argue that they represent a respectful portrayal of the culture that highlights positive attributes and offers opportunities for cultural education and understanding. Throughout the debate, teams have maintained that their use of American Indian imagery is done with the best intentions of portraying values such as strength, courage, and pride. These portrayals, advocates argue, honor Native Americans and their ancestors, and serve as a respectful tribute to these proud nations.

While many Native American groups have been vocal in their opposition, a recent poll suggested that as much as 90 percent of Native Americans do not find these mascots offensive or harmful. If a majority of American Indians themselves do not have a problem with these mascots, advocates argue, then the mascots are not entirely the offensive, stereotypical caricatures that opponents have portrayed them to be. Additionally, many advocates argue that these mascots provide opportunities for cultural education that benefit Native and non-Native Americans alike.

Many teams, especially at colleges, work closely with local tribes to provide some form of educational tools for fans and visitors to gain an accurate representation of the Native Americans that their mascots portray. Many tribes are opposed to bans on the use of culturally sensitive mascots because these bans would scuttle potential opportunities such as these to create educational bridges to Native American culture and to promote a harmonious inter-cultural working relationship. To this end, some sports teams using American Indian mascots have received the support of local tribes in the interest of maintaining a respectful portrayal of Native American culture. Florida State University receives the support of the Florida Seminole tribe, which has provided input into decisions regarding the University’s mascot and sports ceremonies. In return for their support, the tribe receives numerous scholarships and reduced tuition for its youth seeking higher education. Advocates argue that this relationship is a vision of the positive effects that could result from the continued use of Native American mascots.

Who wants to change the name?

Opponents argue that cultural references such as the term “Redskins” are inherently derogatory and harmful to the way Native and non-Native Americans view American Indian culture. Merriam Webster states the term “Redskin” is “an offensive term and should be avoided;” Native Americans often equate it to racial slurs used against African Americans and Jewish individuals. Additionally, mascots such as the Cleveland Indians’ “Chief Wahoo” are considered racist caricatures that are equally offensive and should be changed in favor of less controversial mascots.

The recent uproar over comments by the NBA’s Donald Sterling has empowered arguments by opponents seeking to root out racial negativity in professional sports. Opponents argue that these mascots promote racial stereotypes that produce harmful psychological and societal effects on Native Americans. The American Psychological Association recently announced its support for the removal of Native American mascots after the publication of numerous reports revealed links between these mascots and a decrease in self-esteem of Native American youth. A 2004 paper published by Dr. Stephanie Fryberg, a cultural and psychological scholar and a registered member of the Tulalip Tribes in Washington State, uses empirical evidence to argue that these Native American mascots have a negative psychological effect on American Indians and a positive psychological effect on European Americans. Dr. Fryberg indicates that these mascots harm the self-confidence and sense of cultural identity of these youth, which could potentially contribute to lower achievement later in life.

Cancelling the trademark on the term “Redskins,” opponents argue, could provide a legal push for the Redskins team to finally change its name and bring professional sports into the standards of equality and anti-discrimination that the federal government expects. Opponents of Native American mascots argue that their concern is not only the way these mascots influence outsiders’ views, but also how Native Americans view themselves.

Conclusion

The Redskins’ battle to keep its name is really starting to look like a losing one. Although the argument has waged on for years, as the the trademark is now null and void, and members of the media rebel against the name, we may be at a turning point. Public pressure is on — it’s up to Dan Snyder to respond.

Resources

Primary

U.S. Congress: HR 1278 Non-Disparagement of Native American Persons or Peoples in Trademark Registration Act of 2013

Additional

CNN: Native American Mascots: Pride or Prejudice?

USA Today: 50 Senators Sign Letter Urging Redskins to Change Team Name

ESPN: Time to Rethink Native American Imagery

University of Colorado Denver: Do American Indian Mascots = American Indian People?

Think Progress: Native American Group: Fight Against ‘Redskins’ About More Than Just the Name

ESPN: Tribe Supports Native American Mascots

The New York Times: Amid Rising Discord Over Indian Images, FSU Has Harmony

CBS DC: How Many Native Americans Think “Redskins” is a Slur?

Oregon Live: Two Tribes Call State’s Native American Mascot Ban Disappointing

Washington Post: Lawmakers Offer Bill to Ban ‘Redskins’ Trademark

USA Today: Bill in Congress Challenges Redskins Trademark

HeraldNet: The Debate: Indian Names, Mascots For Sports Teams

Joseph Palmisano

Joseph Palmisano is a graduate of The College of New Jersey with a degree in History and Education. He has a background in historical preservation, public education, freelance writing, and business. While currently employed as an insurance underwriter, he maintains an interest in environmental and educational reform. Contact Joseph at staff@LawStreetMedia.com.

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I’d like to think my article from last week played a part in the important decision made today, but the true heroes are the United States Patent and Trademark Office. Congratulations, you get the Trevor seal of approval.

The USPTO canceled six federal trademark registrations for the name “Washington Redskins” today, saying that the name is “disparaging to Native Americans” and thus cannot be trademarked under federal law.

I’m actually dancing.

Lead attorney Jesse Witten of Drinker Biddle & Reath filed the case before the Trademark Trial and Appeal Board on behalf of five Native Americans.  “We presented a wide variety of evidence including dictionary definitions and other reference works, newspaper clippings, movie clips, scholarly articles, expert linguist testimony, and evidence of the historic opposition by Native American groups to demonstrate that the word ‘redskin’ is an ethnic slur,” Witten said in a press release.

Federal trademark law does not allow trademarks that could be considered offensive or racist to groups, so the ruling has stripped the Redskins of six different trademarks associated with the team, each containing the word “redskin.”

What does this mean for the Washington Redskins? They could potentially be forced to change the name of the team since they wouldn’t be able to make any money off of anything with the Redskins name or logo. But, Native Americans have been down this road before. In 1992 the Trial and Appeals Board rescinded the team’s trademark, only for it to be overturned in a federal court ruling after the team appealed.

The Redskins will still have rights to their name for the time being as they are expected to appeal the decision much like in 1992, but I have a strong feeling that this time it will be different and people will finally come to their senses and realize that the name is atrociously racist. So everybody please cross your fingers with me.

Daniel Snyder will fight tooth and nail to keep the name of his precious team, and I just learned today that the outspoken owner has a backup plan. Snyder had the name “Washington Warriors” trademarked more than ten years ago according to the Washington City Paper. This convinces me even more that he realizes the Redskins name is offensive, racist, derogatory, disrespectful, hurtful, obnoxious (I could go for days but I’ll stop with obnoxious), otherwise he wouldn’t need a backup name.

I guess I’m okay with Warriors

Native Americans won this battle but the war is not close to being over, it could be months and even years before we see the Redskins change their name and logo. But as a wise man named Trevor Smith once said, “we’ll fight and we’ll fight until we cant fight anymore, because our cause is just but our patience is poor!”

In all seriousness though, this was a great outcome for Native Americans around the country. The five plaintiffs should be extremely proud of their courage and determination as they could be the ones who finally get the organization to change its name.

—

Trevor Smith

Featured image courtesy of [RedSoxFan33 via DeviantArt]

Trevor Smith

Trevor Smith is a homegrown DMVer studying Journalism and Graphic Design at American University. Upon graduating he has hopes to work for the US State Department so that he can travel, learn, and make money at the same time. Contact Trevor at staff@LawStreetMedia.com.

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NFL Commissioner Roger Goodell may go down in football history as the least liked commissioner with the best intentions. His effort to deter future head injuries among players by fining violent hits has caused his approval rating with players to sink. His effort to aid the health of former players may not be sufficient, according to a federal judge. And his plan to penalize on-field use of the n-word has been called hypocritical by several journalists (here, here and here, to name a few). So why do haters gotta hate on Goodell? The first two issues have fairly intuitive answers; people don’t like paying fines, and settling decades of severe brain trauma probably requires lots of money. The last issue is a bit complicated, but it ‘s probably because taking baby steps to battle prejudice is considered by many to be aggravatingly stupid.

Goodell’s intentions seem honest enough. Last November the Fritz Pollard Alliance (FPA) — an organization that focuses on  supporting diversity in the League — approached Goodell expressing discontent at the volume of players who use the n-word in the NFL. The FPA again broached the issue with the League last month, and Goodell heeded their advice by proposing it to the NFL’s competition committee. The League is expected now to pass a rule penalizing the slur starting next season.

The move has been hailed by some members of the press, but it has also been criticized as hypocritical in light of the NFL’s much more glaring issue of bigotry: the name of the eighty-two year old NFL franchise in the District of Columbia, the Washington Redskins. The Redskins have been considered a derogatory name for decades, but the debate has gathered steam recently due to their trademark battle for the name. The ‘Skins owner, Dan Snyder, has refused to change the name, and Roger Goodell has given his steadfast support to Snyder on the issue.

Why, you ask? If Goodell’s public statements are to be believed, he genuinely believes that the term “Redskins” is more flattering than disparaging. Goodell and Snyder also seem to genuinely believe, despite the lawsuits, that the majority of American Indian tribes support their name. The other less insane argument is that renaming the near-$2 billion franchise could cost both the NFL and the team big time after all of the branding and intellectual property ramifications are considered.

Whatever Goodell’s reasoning is for supporting the Redskins, his stance is nothing new for those in similar positions. In fact, it seems like an American tradition, perhaps as sacred as football, for those of esteemed authority to get tangled in a web of hypocrisy when they’re trying to placate on the issue of tolerance. Our greatest legal minds held in a 7-to-1 vote that “separate but equal” was an equitable way to deal with racial tension and state’s rights. It took Congress 51 years to afford women the same right as minorities in the voting booth. And still some elected officials and judges find civil unions to be adequate for gays who wish to be married. Watershed moments of civil rights often come after years of slow flooding, rather than through large tidal waves. Were Goodell willing to defy this trend and force Dan Snyder’s hand, he might be able to earn the thundering applause he might like in passing the n-word penalty. But instead, the commissioner of football may have to settle for a golf clap.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Staff Sgt. Bradley Lail, USAF via Wikipedia]

Andrew Blancato

The post Why the NFL’s N-Word Ban Gets a Golf Clap Instead of a Standing Ovation appeared first on Law Street.

What’s unacceptable for pork is OK for people these days? At first glance of the Patent and Trademark Office’s decision to reject a mark for “Redskins Hog Rinds,” I felt of tinge of angst rise within me due to the controversy surrounding the Washington Redskins’ use of the trade name for their team. Seriously? You’ve got to be fucking kidding me.

But after taking a step back and assessing the bigger picture, I realize that what the PTO is actually doing here is setting precedence!

Here’s the story: back in 2009 when the Washington Redskins’ trademark was up for appeal before the Trademark Trial and Appeal Board (TTAB), the PTO failed to terminate the Redskins’ trademark protection on the grounds that the plaintiffs’ claim had surpassed the statute of limitations. The case was never dismissed on its merits.

However, recently the Washington Redskins’ trademark has been under heavy scrutiny — warranting opinions by members of congress, Native American tribes, civil rights groups, and even the president himself. The suit, invoked by a Native American collective, is before the TTAB where the PTO is considering whether the Redskins’ moniker and logo should lose their federal registration status. I’m feeling like… the PTO is foreshadowing a decision in favor of Washington’s NFL team losing its trademark.

On December 29 in a rejection letter for the “Redskins Hog Rinds” mark, the PTO stated that the term phrase may contain “offensive slang” or “disparage or bring into contempt or disrepute persons, institutions, beliefs, or national symbols.” Oh word? The letter went on to point out that definitions of the ‘redskins’ word indicate derogatory connotations, in addition to the word being cited as offensive by many Native American groups, including the National Congress of American Indians.

So what would this mean for the team? Well, losing federal registration of the mark wouldn’t necessarily force the team to change its name. In fact, they could choose to ignore the decision altogether and keep operating their business as usual. However, because they would no longer have protection over the name, if I wanted to create Redskins t-shirts and sell them in my boutique (this is all hypothetical), neither Dan Snyder nor the NFL could do anything about it. I also recently learned that the NFL divides merchandise sales across the league, meaning that if the Redskins lost their trademark, the entire league could be out of pocket.

I’m interested to know where some of you stand on this dispute. Is the PTO overreaching by deeming the mark as derogatory? Are they opening the doors to hyper-sensitivity and prudently narrowing the pool of phrases available for registration? Or are they proper in determining that this mark shouldn’t be granted protection in light of evidence indicating that the term ‘redskin’ is racially offensive?

Perhaps that last question is leading, but that’s only because I personally don’t see how this is even an issue that could be contested. The Lanham Act states that a mark is not to be granted trademark protection if it is found to be disparaging or offensive, which it so clearly has been. It’s against the law people! At this juncture, perhaps the Redskins should direct their focus on winning more games or creating a captivating new mark, because I’m pretty sure this is a wrap.

Gena

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Get in touch with Gena via email here.

Featured image courtesy of [Keith Allison via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Why the Redskins Should Prepare for Trademark Loss appeared first on Law Street.

During a recent interview with the Associated Press, President Obama opined that the Redskins should consider changing the name of their $1.5 billion franchise to one that does not offend a “sizeable group of people.” He went on to state: “I don’t know whether our attachment to a particular name should override the real, legitimate concerns that people have about these things.” I agree, wholeheartedly.  If the team name is offensive to any group of people, it should not be in existence.  I equate “redskin” to “blackface,” each being offensive monikers used to identify Native Americans and African Americans, respectively. If you look up the term “redskin” in Merriam Webster, the first words you will find are “usually offensive.”

Lanny Davis, counsel for the Redskins, responded to Obama’s remarks by pointing to a 2004 poll taken by the Annenberg Institute in which 9 out of 10 Native Americans indicated that they were not offended by the “Washington Redskins” trademark.  The Annenberg Institute polls are highly respected and considered reliable based their trade name alone. However, should we discredit the 9% of Native Americans who consider the name to be a racial slur? I doubt that the Trademark Trial and Appeal Board, in 1999, would have ruled to revoke the Redskins’ trademark without good reason (although the decision was ultimately reversed on account of the suit not being filed within certain time parameters). At the Unity Journalists of Color convention, Roxanne Jones, an editor for ESPN Magazine, stated that in a debate over the Redskins’ name, “our Native American peers yelled back, a few of them in tears, that we were being insensitive and ignorant for not understanding that the Redskin name was hurtful and damaging to their community.”  I’m confused, did they not participate in this poll cited by Davis?

Davis drew attention to the fact that, similar to the Chicago Blackhawks, which are located in Obama’s home state, the Redskins “do not intend to disparage or disrespect a racial or ethnic group.”  Daniel Snyder, owner of the Redskins team, is likely hesitant to change the mark because of the financial risk he may run of losing brand loyalty. And, of course, we can’t neglect the glaring reality that the team has not been performing well in the playoffs for years.  I don’t watch much football, but my Dad is a diehard Redskins’ fan – even going so far as draping himself in the gold and burgundy fleece blanket I got him for his birthday. So I’m aware that we’ve (being a Washingtonian, I feel affiliated by geography) only won one out of our last four games this season, with a win record of 42% of regular season games in the past decade. My point here is this: the value of the team is largely due to the fan base. So if the mark were changed, there is a high risk of economic damage. Yet, in a society where a team name of “Washington Honkies” would not have been given second consideration due to its disparaging effect, I cannot say I’m in any way surprised.

So is it non-offensive intent or reckless disregard of disparagement in favor of financial gain? Just because a group has lesser representation in our nation should not mean they aren’t owed the same degree of respect.

All Hail the R-words.

Gena.

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Featured image courtesy of [Keith Allison via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

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