Thursday, June 19, 2014
Political Mayhem Thursday: The Redskins Controversy
Obviously, this is IPLawGuy's thing, not mine, and I am hoping that he will chime in at some point before heading out to see the Nationals lose this evening.
It had never occurred to me that the way to confront this problem was through trademark law, and I really admire the lawyering...
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OH, sorry, I was busy visiting nail salons and day care facilities. At least according to Facebook.
I have views on this as a Trademark lawyer and views on this as a lifelong, but not very rabid Redskins fan.
Let's start with fandom.... The Redskins are one of the few things in Washington, D.C. that used to bring people together. From the late 60's until the early 1990's the Redskins went to the playoffs nearly every year. The old stadium was JAMMED full of noisy racous fans for every game. Every seat was held by Season Ticket holders and the Waiting List to get seats was absurd. It took YEARS to get a season ticket. Redskins fans were black, white, latino, asian, Republican, Democrat, rich, poor, management, laborers, etc. Didn't matter -- and they team was a unifier.
And NEVER did any fan or team management or the players belittle native americans. Indians were held up as noble warriors that were "Braves on the Warpath," as our fight song, "Hail to the Redskins" goes. And this was especially true when the Redskins played our hated rivals, the Dallas Cowboys.
You would not find a truer exemplar of non-Indians adopting Native American pride.
And no, I am not a Native American, nor have I lived on a resevation. I know some Hopis and Navajo Indians from my time working for a Member of Congress from Arizona, but back in the 80's no one mentioned the team name as a problem. And no one ever told me that Indians considered Redskins a slur or insult.
I'd like to know if non- Native Americans ever really taunted or insulted Indians by calling them Redskins. Obviously whites taunted and insulted (and still do) black people with the so-called "N-word." (so toxic, I fear typing it.. but a Rapper could). But really, I'd like to know if "Redskin" was ever used in the same way. Has that happened? Or is is more like "Cracker," a euphemism for a poor white person that no white person is really or truly insulted by. If someone were to call a white person a cracker, the response is one of "whatever," at most.
But I don't know that about Redskin for sure. No data.
And the Plaintiffs cited data to show that it is insulting. And this is becoming an embarrassment to the NFL. The name will end up being changed. Money talks.
I have views on this as a Trademark lawyer and views on this as a lifelong, but not very rabid Redskins fan.
Let's start with fandom.... The Redskins are one of the few things in Washington, D.C. that used to bring people together. From the late 60's until the early 1990's the Redskins went to the playoffs nearly every year. The old stadium was JAMMED full of noisy racous fans for every game. Every seat was held by Season Ticket holders and the Waiting List to get seats was absurd. It took YEARS to get a season ticket. Redskins fans were black, white, latino, asian, Republican, Democrat, rich, poor, management, laborers, etc. Didn't matter -- and they team was a unifier.
And NEVER did any fan or team management or the players belittle native americans. Indians were held up as noble warriors that were "Braves on the Warpath," as our fight song, "Hail to the Redskins" goes. And this was especially true when the Redskins played our hated rivals, the Dallas Cowboys.
You would not find a truer exemplar of non-Indians adopting Native American pride.
And no, I am not a Native American, nor have I lived on a resevation. I know some Hopis and Navajo Indians from my time working for a Member of Congress from Arizona, but back in the 80's no one mentioned the team name as a problem. And no one ever told me that Indians considered Redskins a slur or insult.
I'd like to know if non- Native Americans ever really taunted or insulted Indians by calling them Redskins. Obviously whites taunted and insulted (and still do) black people with the so-called "N-word." (so toxic, I fear typing it.. but a Rapper could). But really, I'd like to know if "Redskin" was ever used in the same way. Has that happened? Or is is more like "Cracker," a euphemism for a poor white person that no white person is really or truly insulted by. If someone were to call a white person a cracker, the response is one of "whatever," at most.
But I don't know that about Redskin for sure. No data.
And the Plaintiffs cited data to show that it is insulting. And this is becoming an embarrassment to the NFL. The name will end up being changed. Money talks.
As for "the law," as the Prof says, the only thing this ruling means is that the team doesn't have a Registered trademark. (and its under appeal). Even so, Trademark law protects unregistered marks as well as registered ones. You just get more presumptions if you have a registration. A lot of restaurants do not own trademark registrations. For instance, neither SCRUFFY'S, VITEK's nor ELITE DINER are registered trademarks. But if anyone tried to use these names in the greater Waco area, the owners of the Federal statute could bring actions under the Federal statute to stop them.
So if anyone were to attempt to use the REDSKINS names or logos for commercial purposes, the team still would have rights to stop them. And strong rights at that since the name ahas been in use for 80 plus years and has enjoyed billions of dollars in revenues and promotion.
And that's a conundrum for the Plaintiffs here -- they have no desire to make commercial use of the REDSKINS name or logos. Any use they might make would be political in the nature of commentary-- and that's already protected. They could do that now, and so could anyone else.
What third parties could not do before and cannot do now is make commercial use of these marks. The NFL protects its names and logos zealously. Brand licensing is one way where the NFL makes its money.
So with all that in mind, especially my bias as a Redskins' fan, I do have problems with the decision. It was clearly politically motivated. The Judges were influenced by current events and attitudes. Even though that happens all the time, it does set a precedence. The other problem is that the decision basically "moved the goal posts." The Redskins name was not a problem for decades. And then it became one. At what point do we say, "we see your point, the name is offensive, but its been too long, you can't cancel the registration." Other remedies would be boycotts, economic pressure etc. Again, we now have a precedent. Will it be used against other names and marks?
Don't know.
I do suspect the name will be changed. And that will make me a little sad, and its too bad because the whole fighting Indian Warrior thing is a far more interesting mascot/theme then some stupid cat, like a Jaguar or a Bobcat or a Panther. Or a Bird, like a Raven, a Cardinal or an Eagle. Or some bug eyed crack addict goofball dressed up in faux cowboy clothes. Or a "Brown," whatever the Heck that is.
So if anyone were to attempt to use the REDSKINS names or logos for commercial purposes, the team still would have rights to stop them. And strong rights at that since the name ahas been in use for 80 plus years and has enjoyed billions of dollars in revenues and promotion.
And that's a conundrum for the Plaintiffs here -- they have no desire to make commercial use of the REDSKINS name or logos. Any use they might make would be political in the nature of commentary-- and that's already protected. They could do that now, and so could anyone else.
What third parties could not do before and cannot do now is make commercial use of these marks. The NFL protects its names and logos zealously. Brand licensing is one way where the NFL makes its money.
So with all that in mind, especially my bias as a Redskins' fan, I do have problems with the decision. It was clearly politically motivated. The Judges were influenced by current events and attitudes. Even though that happens all the time, it does set a precedence. The other problem is that the decision basically "moved the goal posts." The Redskins name was not a problem for decades. And then it became one. At what point do we say, "we see your point, the name is offensive, but its been too long, you can't cancel the registration." Other remedies would be boycotts, economic pressure etc. Again, we now have a precedent. Will it be used against other names and marks?
Don't know.
I do suspect the name will be changed. And that will make me a little sad, and its too bad because the whole fighting Indian Warrior thing is a far more interesting mascot/theme then some stupid cat, like a Jaguar or a Bobcat or a Panther. Or a Bird, like a Raven, a Cardinal or an Eagle. Or some bug eyed crack addict goofball dressed up in faux cowboy clothes. Or a "Brown," whatever the Heck that is.
Does anyone else worry about how IPLawGuy, a Virginia resident, is aware that three Waco institutions (Vitek's, Scruffy's, and the Elite Diner) are not registered trademarks? Is he planning something?
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