Unpacking the Redsk*ns Trademark Challenge

The legal fight to stop the Washington Redsk*ns from using their offensive moniker has created an interesting paper trail — putting a price on the value of the racist name and illuminating how the powerful use their power to defend the status quo. It is a case that raises First Amendment issues and could ultimately put it before the U.S. Supreme Court.

Here is a quick case summary: In June, 2014, the U.S. Patent and Trade Office ruled that the Redsk*ns name was offensive to and disparaged Native Americans, a violation of the Lanham Act. The Redsk*ns trademark remains in effect during the current appeal process. In July, 2015, a federal judge upheld the Patent Office’s decision to revoke the trademark. Pro Football appealed again, and now the case is before the Fourth Circuit Court of Appeals.

Here are a few takeaways from the various legal briefs:

The racist brand is worth millions and millions of dollars: The Pro Football brief estimated the Washington team’s value at $2.4 billion as of August 2014. Of that, the Redsk*ns brand contributes approximately $214 million.

Pro Football says nothing in its appeal to argue that the Redsk*ns name is a positive symbol of Native American culture and values today. The NFL argues a lot about the legal process — that the U.S. Patent and Trade Office “disparagement clause” is too vague and enforcement is inconsistent. It argues that it is unfair for people to complain years after the trademark was approved.

The NFL further argues that the government has registered hundreds of trademarks that the Washington team believes “are racist, or misogynistic, vulgar, or otherwise offensive.” Examples, it says, include DANGEROUS NEGRO shirts, DAGO SWAG clothing, the “RETARDIPEDIA website,” “STINKY GRINGO” “YID DISH” (and other names we will not reprint here.)

Yes, it’s a legal argument. But in terms of the court of public opinion, it sounds more like the argument “you let them use slurs so we can, too,” and that seems lame. Think about how much the NFL has done to “protect the shield.” It has increased penalties for player misconduct on and off the filed. Yet the Redsk*ns name remains.

The Redsk*ns trademarks were registered in 1967, 1974, 1978, and 1990. From a legal standpoint, what matters is whether a “substantial composite” of Native peoples back in the 1960s and 1970s thought the trademark was disparaging. That’s a tougher case to prove.

According to the NFL brief: “The court disregarded significant, unrebutted evidence that many Native Americans took pride in the Team’s name in 1967 and thereafter.” It goes on to argue that those pushing to remove trademark protection from the Redsk*ns name waited too long to file in court — and that delay “prejudiced” the Redsk*ns.

We’re getting closer to some important truths here. In 1967, when the first team trademark was issued, it wasn’t even legal for Native Americans to practice their own religion. (That particular law was not passed for another decade) In 1967, Native Americans had little to no power. They still don’t. Yet the NFL positions itself as a victim in court.

Even though the systems of power were stacked against them, many Native leaders and organizations of the day did organize, stand up, and state their common desire to end the Redsk*n moniker.

That took a lot of courage.

Today, many Native American Organizations have again spoken with a unified voice and filed a Friend of the Court brief to chronicle the history of the organized opposition to the Redsk*ns name. (The full list of 40 Native American organizations who signed onto the brief are listed at the end of this post.)

The nut of their argument is this:

Pro-Football’s use of a racially disparaging term as a mascot for the football team in our Nation’s capital has resulted in real harm to Native Americans. The REDSK*NS marks should never have been granted federal registration. The first REDSK*NS mark was disparaging when it was registered in 1967 and it and the five subsequently registered REDSK*NS marks have continued to subject Native Americans to contempt and ridicule since.

And here is where the brief includes some interesting history. For instance, the brief recounts a January 1972 meeting of the National Congress of American Indians, the National Indian Youth Council, Americans for Indian Opportunity and the American Indian Movement, AIM. (Those attending included Dennis Banks and Laura Wittstock.) In spite of these groups differing agendas, they “agreed that the Washington football team’s name was bigoted, discriminatory, and offensive to Native Americans” and that “opposing the Washington football team’s name, and seeking a change in that name would be the first issue on which we could unite in a common effort.’”

They agreed they would pursue a meeting with the Washington team’s leadership to explain why the team should change its name. That meeting happened in March 1972. According to the brief:

Following the meeting, the Washington team changed the cheerleaders’ costumes to remove the fake Cherokee hair extensions and revised the fight song to remove certain admittedly offensive language such as “Scalp ’em, swamp ’em — we will take ’em big score / Read ’em, weep ’em, touchdown! — we want heap more!”

So the team knew this was a bad image … but the name remained.

There are a number of other legal issues that will come into play, most importantly whether the First Amendment applies to trademarks.

One recent case (In re Tam) suggests the Redsk*ns case could go to the U.S. Supreme Court based on First Amendment issues. A post in DuetsBlog written in December had the headline: Did the Federal Circuit Just Save the Redskins’ trademark registrations? It discussed a legal challenge by the musical group The Slants. The Trademark Trial and Appeal Board denied the trademark, finding the group’s name disparaging to Asian Americans.

The United States Court of Appeals for the Federal Circuit overturned the decision, finding the Lanham law blocking disparaging trademark names unconstitutional. It wrote:

Courts have been slow to appreciate the expressive power of trademarks. Words—even a single word—can be powerful. Mr. Simon Shiao Tam named his band THE SLANTS to make a statement about racial and cultural issues in this country.

It’s hard to believe the Washington team owners will argue that they chose the name Redsk*ns to make a statement about this nation’s racial and cultural issues. Yet the fact remains, if the Fourth District Court of Appeals upholds the decision to deny the Redsk*ns trademark protection, these two cases will be on a collision course. They offer different interpretations of whether the First Amendment applies to trademarks. It makes it likely the trademark issue will rise to the U.S. Supreme Court.

Predicting the result of the case would just be a guess. It would be much easier if the NFL and the Washington football team would do the right thing and change the name like they were asked to do more than 40 years ago.

In closing, see this short video by ChangetheMascot.

For more information, here is:

• Federal Court decision in Pro Football Inc. v. Amanda Blackhorse
• Appeal brief from Pro-Football Inc.
• Friend of the Court brief by a number of Native American Organizations.

Here is the list of Native American organizations participating in the Friend of the Court brief:

• American Indian Council;
• American Indian Science and Engineering Society at the University of Minnesota;
• American Indian Student Alliance at California State University San Marcos;
• American Indian Student Cultural Center at the University of Minnesota;
• American Indian Studies Association;
• American Indians in Film & Television;
• Americans for Indian Opportunity;
• Association of Native Americans at Yale University;
• Association of Tribal Archives, Libraries, and Museums;
• Association on American Indian Affairs;
• Blue Feather Drum Group;
• California Indian Culture and Sovereignty Center at California State University San Marcos;
• California Indian Museum and Cultural Center;
• Capitol Area Indian Resources, Inc.;
• Center for Indigenous Peoples Studies, College of Social and Behavioral Sciences, California State University, San Bernardino;
• Change the Mascot Campaign;
• Council of Fire Native American Leadership and Debate Society;
• First Nations at the University of Washington;
• Gamma Delta Pi;
• “Indian” Mascot and Logo Taskforce;
• Indigenize OU;
• Indigenous and American Indian Studies Club at Haskell Indian Nations University;
• Indigenous Law and Policy Center at the Michigan State University College of Law;
• International Indian Treaty Council;
• Midwest Alliance of Sovereign Tribes;
• National Indian Education Association;
• National Indian Youth Council;
• National Congress of American Indians;
• National Native American Law Students Association;
• Native American Contractors Association;
• Native American Journalists Association;
• Native American Law Students Association at the University of Washington School of Law;
• Scholars of Stereotypes of Native Americans in Sport;
• Society of American Indian Government Employees;
• Society of Indian Psychologists;
• Southern California Tribal Chairmen’s Association;
• The Morning Star Institute;
• United South & Eastern Tribes;
• UNLV Native American Community; and
• Wisconsin Network for Peace and Justice