How Trademark Law Can Finally Kill Dan Snyder's Racist Dreamworld
from the trademark-slurs dept
Before we dig into this, let's put a couple of facts into evidence. First, Dan Snyder is the owner of the NFL’s Washington Redskins football franchise. Next, as we've covered before, Dan Snyder is an idiot. In addition, the term "Redskin" is a taboo word, commonly considered offensive and detested by Native American groups that have visited with the team to explain to them that they'd prefer not to be disparaged in such a manner. Now, there is a contingent of strange people in this country that insist that fighting back against an NFL team using the Native American version of "darky" is the height of our overly political correct culture and is a waste of time. If you're one of those people, I invite you to voice that opinion in the comments section, not because I think your stupid argument has any merit, but rather because I just want to watch you look silly.
That said, the controversy over the team's name has existed since roughly the time us white folks landed on this land and began helpfully distributing small-pox-ladened blankets to shivering women-folk. So how do we finally get the name changed? As it turns out, the answer just might be trademark law. See, the United States government is a lot of things, and not all of them good, but they sure don't like to officially sanction racial slurs. Couple that with how important trademarks are to NFL teams and we have a light at the end of this racist tunnel. Per trademark lawyer Christine Haight Farley:
Since 1905 federal trademark law has banned the registration of scandalous or immoral marks. In 1947, marks that may disparage, bring into contempt or disrepute persons, institutions, beliefs, or national symbols were also banned. U.S. trademark law is not unique in prohibiting the registration of offensive trademarks. Many other countries' trademark laws contain similar provisions.So, the starting point is that you can't trademark an offensive term. This, for obvious reasons, essentially amounts to the government not wanting to be in the business of hate-speech. Court cases have been brought in the past asserting the Redskins mark to be invalid on these grounds, with a tribunal in 1999 agreeing that the mark should be cancelled. Unfortunately, that ruling was overturned on federal appeal, which asserted that the lawsuit was brought by old people who should have been offended long before they formally stated so (unjustified delay in bringing the suit) while simultaneously stating that they just weren't quite sure most Native Americans disliked being referred to primarily by their ill-described skin.
However, a younger group of Native Americans has refiled and a ruling is expected fairly soon. If Farley's analysis is correct, there seems to be only one logical way for the court to rule.
The term used by the Washington football team has been demonstrated by overwhelming linguistic and historical evidence to constitute a disparaging epithet insulting to Native Americans. Many Native American organizations, including the National Congress of American Indians, the National Indian Education Association, the Native American Journalists Association, the Native American Rights Fund, the Morning Star Institute, the International Indian Treaty Council, and the National Indian Youth Council, have publicly and vociferously opposed the continued use of the term in trademarks or as the name of sports teams. The director of the Smithsonian National Museum of the American Indian has said he considers that name to be the most offensive name in current use. The trademark office tribunal was satisfied by survey evidence that showed that 37 percent of the Native Americans surveyed found the word the team uses as their name to be offensive.Now, while the cancellation of the mark wouldn't require the team to change its name, or even stop using the epithet in commerce, it might as well. Trademarks on team names, perhaps most-so in for NFL teams, is where a vast amount of team revenue is achieved. If they lose the mark, it would open the commerce door to all manner of groups to use the name in commerce. That isn't something a team run by Dan Snyder would stand for. In other words, trademark might actually kill off the most offensive team name in sports. As far as I'm concerned, it can't happen soon enough.