The Patent Office’s cancellation of the Redskins trademark is relatively meaningless

by Cleveland Frowns on July 7, 2014

At some level it’s of course good news that a government office with jurisdiction over the issue took an official step in recognition of the Washington Redskins name for what it is: A racist slur adopted by a racist in celebration and furtherance of white supremacy. Yet despite all the excitement about bootleg Redskins merchandise and $9 billion dollar lawsuits, the US Patent and Trademark Office’s decision to cancel the registration of six Redskins marks represents a small measure, probably unconstitutional, that even if upheld on appeal would hardly cause the NFL franchise to lose any trademark protection at all. In the end, it’s little more than a reminder that we live in a world where it has to be so hard to take such a small and obvious step in the first place.

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Which isn’t to say that the reminder is unhelpful.

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First, regarding the legal insignificance of the USPTO’s decision, Attorney Christopher Beall, an expert in trademark law who teaches at the University of Denver’s law school and practices at one of the nation’s leading First Amendment firms, has concisely and cogently explained its “limited nature.” Specifically, the decision merely invalidates “the ‘registration’ of the team’s trademark, not the team’s ‘use’ of the mark.”

“Because [the] decision does not bar the team from using the mark, the trademark itself will continue to exist and be enforceable,” says Beall, who goes on to explain that Federal Law (The Lanham Act) “explicitly provides a vehicle for bringing infringement suits based on unregistered trademarks, including here a disparaging one.” Therefore, “the lack of a registration will [only] mean that the team must first prove that its trademark is valid,” which will be no problem for the Redskins given that their mark has been in use for 60 years.

It took an eight-year legal battle to accomplish even this modest step, with the appeals process expected to take at another few years before the decision is final. Dan Snyder, the billionaire owner of the NFL franchise, has vehemently stated that he will “NEVER” change the Redskins name, and will surely spend whatever it takes in an effort to reverse the USPTO ruling, as legally toothless as it is. Snyder maintains his vigorous defense of the slur despite widespread opposition, including from the White House, the Senate, a growing number of mainstream news publications, and not least, a countless number of indigenous groups, including the National Congress of American Indians Congress, the oldest, largest, and most representative body of Native Americans on earth.

Thus, at least if not at most, the continued survival of the Washington “Redskins,” as well as Chief Wahoo and the “Indians” in Cleveland, takes on increasingly surreal and, in the literal sense, spectacular proportions.

The more that Snyder and the Dolan family, owners of the Major League Baseball club in Cleveland, continue to countenance and inflame this spectacle, the more one wonders if we shouldn’t be thankful for it; Especially to the extent that these appropriations of Native American culture are as unsustainable as the status quo that they represent.

Which is to say that we might at least appreciate that Snyder and the Dolans are so open in their comfort with the notion, represented by their “Redskins” and “Indians,” that certain humans and certain ways of living are appropriable and disposable. Of course, such notions are nothing new or unique, and persist in the form of historic levels of inequality, social decay, and runaway environmental degradation. If the richest country in the world is going to convince itself that it can’t do any better than a quarter of its children living in poverty, or confining millions of its people into increasingly isolated and crowded ghettos, for example, it can only help if folks are comfortable with turning genocide victims into sports mascots. If you’re trying to perpetuate carbon-based capitalism, too, all the better if those genocide victims happen to be ones who managed to thrive peacefully without endlessly blasting greenhouse gas into the atmosphere, or even privatizing property at all.

It’s no surprise that folks with both the wealth and inclination to own an NFL or MLB franchise would perceive an interest in maintaining the status quo, disposable humanity and all, however damaging and unsustainable it might be. Yet as successful as plutocrats have historically been in convincing the middle class that doing whatever to the poor and/or minority races is okay, it’s interesting that Snyder and the Dolans would be so obvious about it by continuing to cling to these mascots against such established cultural norms against open racism. Of course the Redskins and Indians could change their names tomorrow and it would hardly register a vibration on the scales of justice. The absence of racist imagery in popular culture, while necessary to a just civilization, is certainly no more a guarantee of as much than a black President is.

So if a growing majority of humanity is to continue to be subject to needless suffering on a needlessly rotting planet in service of a handful of gilded slumlords, it might be just as well that our sports uniforms remind us of as much. This is who’s in charge and this is what they think of people from whom they’ve stolen. They’d make a mascot out of you too if they thought they could get away with it.

Ferrell

If Chief Wahoo is as popular on Native reservations as certain sports talk radio hosts would like us to believe, it should be easy enough to understand why. We might as well “Keep the Chief” if we’re going to keep the conditions that allow people to be turned into mascots and worse in the first place.

Greg_Vlosich_Keep_the_Chief

In any event, it’s as clear as ever that the abolition of the “Redskins” and “Indians” is much less important than the recognition of what they represent. The USPTO’s definition of “Redskins” as a racist slur only helps here, as hard as it might be to think it helps a whole lot.

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In other news, LeBron is coming back to the Cavs. Hang on to your pants.

  • bupalos

    It doesn’t make sense to me to say that the ruling is “probably unconstitutional” when we are also saying that it probably has no effect because of the common law protection. Only if the ruling really did present Snyder with an economic hardship in exercising his right to disparage and slur native Americans would said ruling potentially create the constitutional issue, no? It can’t be both economically meaningless and unconstitutional. Seems like an either/or here.

    It’s a great point that at least the continuance of these symbols serve as a reminder of the forces at work here. There is that to be thankful for, it’s just too bad that comes at the cost of increasingly eye-searing pain when I try to kick back and watch my baseball team. But then the eye-searing pain is part of the point I guess.

    As always great job and especially great job with the links.

    • http://www.clevelandfrowns.com/ Cleveland Frowns

      Thanks. I don’t think it matters whether there’s an economic hardship or not as long as the government is acting to “abridge” the speech. The Pepperdine L. Rev. article lays it out pretty clearly starting at page 35. The issue is with the selective dispensation of a privilege (in this case, Federal trademark registration) based on agreement or disagreement with the speaker’s expression. It might not hurt the Redskins in this case but it’s easy to see how it might hurt someone else who doesn’t have the 60 years of use to fall back on.

  • beeej

    Am I the only one who thinks the constant harping on Bengazi just makes the far right look crazier and crazier?

    13 Embassy attacks under the previous regime and not a peep. http://www.politifact.com/truth-o-meter/statements/2014/may/12/john-garamendi/prior-benghazi-were-there-13-attacks-embassies-and/

    • Chris Mc

      The craziest people are the ones that complain about sending more security to the Iraqi embassy, and in the same breath say they didn’t have enough security at Benghazi.

  • http://www.clevelandfrowns.com/ Cleveland Frowns
  • p_forever

    The new “obvious” ness of Snyder’s and the Dolans’ clinging to racist mascots is of course related to the larger trend of carbon-based capitalists openly and obviously (and even crybabying-ly) caring less and less even about the american middle class. When there is “no meaningful alternative to capitalism” only profits matter, not the well being the middle class and for sure not the well being of powerless ethnic minorities.

    http://www.newyorker.com/talk/financial/2014/07/07/140707ta_talk_surowiecki

  • Anthony Brown

    In taking your slap at the government, you have perpetuated an inaccuracy about the Redskins. To wit, “A racist slur adopted by a racist in celebration and furtherance of white supremacy.”

    GP Marshall was an anti-black racist at a time when racial discrimination was a legal practice in the United States before the 1964 Civil Rights Act. You may be too young to recall that. I am not.

    We know of Marshall’s prejudice against blacks because he openly proclaimed it. You will find no similar statements about Indians. Marshall in fact admired Indians because he viewed them as Confederate sympathizers like him. (Long story. Ask if interested.)

    Marshall named his franchise the Braves in 1932 when he played in Braves Stadium in keeping with the NFL’s practice of naming franchises after the local MLB team. The football Braves that year played two games against the Brooklyn (football) Dodgers and two against the New York (football) Giants.

    In 1933, the Braves moved operations to Fenway Park, home of the Boston Red Sox who undoubtedly objected to a team named for an in-town rival playing in its ball park. Redskins was a way to keep the Braves theme without offending the landlord.

    Marshall considered the “Boston Indians” name, but the NFL informally kept that mascot in reserve for a potential Cleveland franchise that might play in Lakefront Stadium.

    I am a 50+-year Redskins fan. In that span, I have only heard the term “redskin” used in reference to the football team. In Dallas, they may say, “The only good Redskins….” Everywhere else, the sentiment was, “The only good Indian is a dead one.” There’s the irony. When hate-mongers wanted to slur Indians, Indian, pronounced “engine,” and all other terms used to describe them were the slurs used. Native Americans have also been slurred by variations of the n-word.

    If you have closed your mind about “Redskins,” you will find none of this persuasive. But, neither should you expect Redskins fans to be guilted into abandoning the name for the mis-characterizations we are hearing.

    Words are words, but brands are what brand owners say they are. If brands are not used in a disparaging way, then they are NOT disparaging.

    Sports teams did not cause the issues facing many Native Americans. Governments did. Dropping team names will not resolve those issues. It will hide them again. A number of Native American sports fans have told me they support Indian-themed sports mascots because it is the only time in popular culture they hear, “Indians win.”

    • bupalos

      You put that forward about as well as it could and I don’t doubt your sincerity. the reality however is neither that the name survives because it is honorific (in some weird confederate way) nor because Indians love to hear about their *informal namesake* beating the cowboys. It survives because Native Americans are a small enough economic minority that their concerns and feelings can simply be discarded.

      The Cleveland Indians have tried similar historical whitewashing, but even apart from the fact that such a whitewash requires severe distortions of fact, it’s beside the point. It’s inappropriate to use human ethnicities as sports mascots. This is especially true of ones that have undergone mistreatment and genocide at the hands of the dominant culture. It’s obvious on it’s face in the case of other ethnicities, and it’s simply an outgrowth of the fact that American Indians are almost completely invisible and powerless in our society that your pride in your football team (which spells dollars to the “owner”) trumps the basic dignity of not being objectified that way.

      The second this costs them significant money, the guys who take the profits off of your love of Washington football will change whatever they have to change to keep profits up.

      • Anthony Brown

        FIRST, thank you for the “sincerity” comment. Redskins fans never get that. Opening the conversation with “racist” tends to shut down conversation. The topic calls for an exchange. Finger-pointing is why the Redskins have the discussion on ‘ignore.’

        As a black man, I have started to wonder why an NBA team is NOT named for an African-American-centric team identity. Without its African-American fans, the NBA would be the NHL.

        Some black people may protest a team name Zulus, Black Panthers, or even Blacks. I assure you that most African-American sports fans would not, provided the brand image was not disparaging.

        Error comes from using absolute terms when speaking of real people.

        I agree that society speaks through its wallet. IF sponsors and fans stop supporting the team, then Dan Snyder might abandon his emotional stance and make a calculated business decision. However, the way the NFL is structured, sponsors would have to leave the entire league to get at the Redskins. Fans do not want to lose the name. Non-fans believe the Redskins should not be forced to lose the brand, even if they don’t like it.

        A boycott is not out of the question, but not very likely either. Name-changers never commit to buy merchandise to reward the team for changing.

        Finally, defending the name is the one thing Redskins fans admire about Snyder. If he caves, his reputation will tank with his critical audience without being offset by critics who will say it took him too long to change because he is really G.P. Marshall.

        • bupalos

          “…provided the brand image was not disparaging.”

          That’s the whole question here, and a big question is who gets to decide. See, in the NBA, there is no way that the brand would be made disparaging, because they’d lose money. And that’s true of all the other sports even hockey and curling, because everyone, not just African Americans, wouldn’t stand for it. That’s because there is a general recognition of the atrocities this country committed in the name of racial superiority v. African Americans. But that recognition came about only when African Americans came to have enough social and economic clout to stop being ignored. There were plenty of Sambo brands before the 50′s and 60′s, and no doubt no shortage of people defending them as honorific.

          Native Americans have never fully achieved that status, mostly because genocide so reduced their numbers. So the forces that made for instance the Aunt Jemimah brand evolve again and again to show a greater level of human respect have never come to bear on in the case of Native Americans. So we still have “Big Chief” sugar and Chief Wahoo and the Redskins, decked out in feathers with tomahawks and giant noses and big toothy grins or menacing snarls.

          It really isn’t honorific to objectify and stereotype an ethnicity, even if in your mind you think it’s for positive traits. Because it’s not for the majority to define what those traits are in the first place. The general reason Indian imagery came to be used in sports is because they were considered fierce, frightening, savage fighters– just about like the other popular mascots like lions, tigers, and bears.

          I’d hope as a member of a minority group that has gained a fuller recognition of humanity from the (still somewhat racist) culture at large, you might feel a special obligation to support a more fully human treatment of Native Americans in popular culture than is consistent with the current brand of the Washington Football Team.

          • Anthony Brown

            Thank you for the response.

            We shall just agree to disagree that the Redskins brand image is disparaging.

            Redskins fans hold ourselves accountable for how we and our team use the term, not for how others have misused it.

            In America, majority really does rule. While the cultural sense of an aggrieved carries great weight, it is not necessarily the final word or the only valid one.

            As a member of a minority group (with grievances), I am sympathetic to the issues facing Native Americans and other minority groups against the dominant culture. But I’m for tangible solutions that affect the lives of real people.

            We are not having a discussion about solutions on CNN or Politico. We are speaking of mascots on a sports blog. If Daniel Snyder caved last year and changed the name, you would not have had the venue to speak your feelings. It would have receded to the background…again.

            I would feel differently if I believed that changing the name would make a real difference in the lives of real people. I believe it would not make any difference at all.

          • bupalos

            you: “…provided the brand image was not disparaging.”

            me: “That’s the whole question here, and a big question is who gets to decide.”

            you: “We shall just agree to disagree that the Redskins brand image is disparaging.”

            There’s the problem in a nutshell. Non-natives deciding what is and is not disparaging of native ethnicity. The major Native American organizations are very clear they find it disparaging. Why is it for you and me to agree to disagree and keep it rolling?

            You say “you’ll know it when you see it.” These groups have seen it and know it, but are you respecting that as much as “majority rules?” Let me ask you this. Do you find the brand image used below disparaging? Because for a long long time other ethnicities made the same “agree to disagree” bargain on this imagery, while I’m pretty sure I know how it felt to African Americans.

          • bupalos
        • beeej

          Thank you for presenting your side of the story with a well-reasoned, even-handed argument. While I don’t agree with your opinion, it is nice to have the discussion without having it breakdown into, “Liberal, PC, Commie, Pinko, Notre Dame, Cowboys, PETA, casinos,” name calling. I am under the impression that the large majority of Washington/Wahoo/Native American mascot team fans are not in fact racist because of their love of a racist symbol(s). Because of what Bupa has already written, I won’t add too much more. However, I did want to ask you a few questions related to your NBA comment.

          What if Donald Sterling, in an effort to “honor” African Americans, decided to change the name of his NBA franchise to the Zulus/Blacks and their mascot was a darker version of Chief Wahoo complete with spear and loin cloth? Do you think some members of the black community would have a problem with that? Do you think it would be a good idea for me, as a white person, to wear my brand new Zulus Sambo hat on a walking tour of Oakland?

          I used to be a big fan of Chief Wahoo. However, the more I learned about the history of both the logo and the plight of Native Americans the more my opinion has changed.

          Thank you for sharing your perspective. We appreciate it.

          • Anthony Brown

            Thank you for asking.

            I am not going to comment on an elderly man who is probably not in his right mind who was suckered by his hot, high maintenance, mixed-race girl friend into exposing views he held. Likewise, I am not going to comment on Chief Wahoo. That’s for the Indians and their fans to decide.

            If you know anything about the Zulus, Mali, Ashanti, Songhai, you would know that they were a people who stood up, just the way you want the sports team that reps your town to do. They have an interesting history that I hope you take the time to research.

            The national flag of Kenya has two spears and a shield. You have a problem with that?

            Sports fans know when mascots are presented in a respectful way or in a mocking way. Sports fans get it, too, that mascots are a reflection of their team and not of real people. A Native American Redskins fan told me that.

            I’m all for a Afro-American brand and mascot that represents in a fun, respectful way the fighting spirit of a manly sport. I will not know what that looks like until I see it, but I will know the difference.

          • beeej

            I know we are (sort of) talking about two different things, the
            offensiveness of a team’s nickname vs. a team’s
            mascot.http://www.cartoonbrew.com/wp-content/uploads/princechawmin.jpg
            In your opinion is this picture from the Warner Bros. banned 11 respectful or mocking?
            Personally, I think the guy looks like Chief Wahoo’s African brother from another mother. Both images are from the same era. Because of their love of the sports franchise I think most in the Pro-Wahoo camp choose to see the image as one of honor. Put side by side I would be hard-pressed to say why one is honorable and the other offensive.

            As far as the honor of the Redskins nickname goes, words are not static. The meaning of them changes over time. Because of tradition and your association with the team you see the nickname as honorable. Others see it as a racial slur.

            My Grandfather used to refer to the n-word down the street in casual conversation. He was friends and neighbors with the guy for many years. There was never any malicious intent with his use of the word, it was just a product of the time in which my grandfather grew up. That being said, the established use of the word by my grandfather doesn’t trump the connotation the word has taken on. If it came down to my grandfather’s view of the n-word vs. members of the public at large today, who’s opinion do you use?

            Unfortunately, the issue of what is/isn’t offensive isn’t all black vs. white (pun intended). For me, personally, I would be about as comfortable wearing a Wahoo hat to a Reservation as I would wearing a T-shirt with the attached picture in the city (or anywhere for that matter).

            Thank you for the lovely back and forth. If you ever make it to a Cleveland Frowns event, I’ll buy you a glass of Tim Couch addition Makers Mark.

          • Anthony Brown

            I would see that image a caricature. Looks circa 1940s. Times do change. Yet, here’s a link to Chad Johnson sporting a gold grill. http://sports-odds.com/entertainment/051910-dancing-with-the-stars-chad-ochocinco-goes-home.html

            Johnson was born in 1978 and evidently does not see a connection to the WB image. If he did, he would have stood on his right to be accepted as he intended, not as we may see it.

            Your question about your father sound like the question hurled at Redskins fans, Would you call a Native American a “redskin” to his face?

            I would call that person by his name, if I knew it, or Native American if speaking of his/her ancestry. Unless that person was a Redskins fan at a Redskins game wearing a Redskins jersey, it would never occur to me to call them a “Redskin” like I consider myself to be at a game in my jersey. This is a question of team allegiance and endearment, not of ancestry.

            Whatever ones feelings about mascotry, or even of stereotypes, you always have to deal as an individual with the individual in front of you. Stereotyping is lazy thinking.

            If I joined you for a Cleveland drink, I would insist on a premium Brian Sipe or Otto Graham. Way back, my Dad took me to a Redskins-Brown exhibition game in Cleveland. We lost, of course. Jimmy was a Beast, even when he played less than a quarter.

      • actovegin1armstrong

        How can this still be an issue?
        There are people who are offended and in their mind defamed by a team name.
        There are other people who wish to keep a controversial name because it reminds them of the time their dad took them to a game, or whatever other amazingly insignificant reason to keep A TEAM NAME.
        This is very easy, we have some names that recall hundreds of years of injustice and sorrow.
        We have some sports franchises with those names.
        The scales of justice are tilted too far to calculate.
        It is only a game.
        Change the damn names!
        I would happily root for the the Cleveland Flying Flamingos. Pink uniforms ROCK!!
        (Funny story, if anyone cares, email me.)
        Or how about the Washington Snyders?
        They would have a terrific natural pretzel sponsor.

    • http://www.clevelandfrowns.com/ Cleveland Frowns

      Would like to hear more about Marshall’s love for Native Americans, please.

      • Anthony Brown

        OK. Here goes.

        George Preston Marshall was a neo-Confederate whose bigoted attitude toward black people was not at all out of place in the District of Columbia, or anywhere else, in the 1930′s through the mid-’60s. Trust me on this.

        His critics poo-poo the notion that Marshall admired Indians, but Marshall was aware of their Confederate service by some Native Americans in the Civil War.

        Brig. Gen. Stand Watie, a slave owning Cherokee, led a Confederate Calvary brigade in Texas and the Indian Territory (now Oklahoma). Watie’s force was the last Confederate army standing after Appomattox. Federal forces entered Texas on June 19, 1865, to receive Watie’s surrender (and to intimidate France out of Mexico). The federals brought the first news to the enslaved people there that they were free, prompting the cultural holiday Juneteenth that is still celebrated in the midwest.

        The bottom line is that Marshall admired Indians for the same reason he hated Africans. He perceived Watie and Indians as fellow Confederates. He named his team for the MLB teams in Boston and he promoted the Native American angle. At least four members of his 1933 team were Native American players brought to the team with Lone Star Dietz who claimed Native American descent all his life.

        Dietz was a successful football coach of the Haskell Indian School. The Native American players followed him to the Redskins.

        The rationale may seem weird to you. It was not to Marshall. He might have renamed the team “Senators” when he moved to Washington in 1937. That was in keeping with NFL naming conventions at the time. But he liked Redskins and the people he admired. The Redskins won the NFL title that year and the name was a lock.

        If Richard Nixon won the 1960 presidential election, the government would not have forced Marshall’s hand in 1962. Marshall still might have integrated the Redskins before he died in 1969. The Cowboys were 9 years old and encroaching on his southern market. Bear Bryant was not successful integrating the Alabama Crimson Tide until 1971.

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