A few months back, we looked at the prohibition
against vulgar trademarks. This month we look to the
issue of racism in trademarks.
When George Preston Marshall decided to change the
name of his year-old football team back in 1933, he
had no idea the trouble he was starting. Marshall owned
a baseball team in Boston known as the Braves. Originally
Marshall decided to use a depression-era marketing tie-in,
naming the football team the Braves, even using the
same field for both teams. Marshall probably wanted
to capitalize on the recognition of the baseball team,
which had played as the Braves since 1912.
Then, Marshall decided to change the name of his football
team to the Redskins, at the time, a seemingly minor
change. A few years later, Marshall moved his money-losing
team to Washington, D.C., in what turned out to be a
successful move. The baseball club moved to Atlanta
in the 1950’s where it too found success.
This is a story Dallas Cowboy fans can only love.
As it turns out, there are non-Cowboys who happen to
dislike the Redskins. At first blush, this is no surprise.
The Washington Redskins are, to be blunt… exploitive.
The organization, which owns a number of trademarks
such as “Redskins”, a logo of an Indian
warrior in profile, a spear logo and the “Redskinettes”,
exploits its trademarks all the way to the hilt of the
proverbial tomahawk, offending the general population’s
sense of good taste. Sadly, you don’t even have
to be 18 or older to purchase the following, all adorned
with the Redskin logos: steering wheel cover, tap light,
football shaped pillow, tiffany lamp and a checker set
pitting Redskins pieces against Cowboys pieces.
In the early 1990’s, Native American organizations
called upon professional sports franchises to stop exploiting
Native American culture. Labeled as offensive: team
names such as Cleveland Indians, Atlanta Braves and
Washington Redskins, the use of cartoon characters (think
Cleveland Indians), the tomahawk chop chant of the Braves
and so on. The Native American’s call had little
or no effect.
Then a new campaign emerged. Why not hit the teams
in their pocketbooks – attack their registered
trademarks? Such an action would cast a pall on the
exclusiveness of team trademarks. A group of Native
Americans sued to cancel the trademark registrations
of the Washington Redskins, on the basis that “Redskins”
is a disparaging word. Such a lawsuit occurs in the
Patent and Trademark Office, an administrative agency.
In a bit of irony, Native Americans were asking federal
bureaucrats to take back property from a white man.
Some of Washington’s trademark registrations
have been around since the 1960’s. It typically
is very difficult to cancel a registration that is over
six years old; it becomes incontestable. However, disparagement
is one of the exceptions for which there is no statute
of limitations.
The plaintiffs, the Native Americans bringing the
lawsuit, presented a tremendous amount of evidence to
prove their point. Their first hurdle was to show that
they were members of federally recognized tribes, that
is they were authentic Native Americans. This is strikingly
curious. Not many lawsuits require the plaintiffs to
prove their race. Nor is there any federal test for
determining one’s race, unless the issue involves
operating bingo parlors, selling nontaxed cigarettes,
salmon fishing, or consuming peyote, all of which are
typically off limits to non-Native Americans. Right
at the very beginning, the case became one of “them”
against “us”.
Having established their race, the plaintiffs presented
their evidence. They each said that Redskins was the
“r” word, a tie-in to the “n”
word for African Americans, and that it was offensive
and racist. Then a number of organizations, representing
Native Americans, rabbis and journalists, presented
resolutions condemning the use of “Redskins”.
Several experts in the fields of history, social sciences,
linguistics and film testified that our culture used
“redskins” in a negative way to mean violence,
savagery and dishonesty.
These experts had names that sounded white: Hoxie,
Nunberg, Hirschfelder. It has more impact for a white
witness to say “redskins” is a bad word
than for a Native American witness to say the same thing.
Everyone admitted that, at one time, “redskins”
was used in a bad way but that, in the last few decades,
very little use of “redskins” could be found
in print. The Washington Redskins said their “Redskins”
was positive and meant dedication, courage and pride.
The team also argued that its use of Redskins was limited
to football and had nothing to do with racism. The team
had taken steps in the 1970’s and 80’s to
further sanitize itself from racism. The team stopped
the appearances of Chief Z, an unofficial team mascot
who received free tickets for his enthusiasm, and Princess
Palemoon who sang the national anthem before the games.
Most telling was a survey commissioned by the plaintiffs.
Those surveyed were broken down into two groups, the
general population and Native Americans. Asked if a
word was “offensive to me”, 46% of the general
population said yes to “redskins” while
only 37% of the Native Americans thought so. About 50%
of each group said “Injun” was offensive.
Less than 10% of both groups found “Braves”
and “Indian” offensive. (The Atlanta Braves
faced a similar cancellation lawsuit a few years ago,
brought by the Native American Resource Academy. That
lawsuit was dismissed.) To show that pleasing everyone
was impossible, both groups had small numbers who found
“Native American” offensive.
So, based on a bunch of experts with white-sounding
names, and a survey showing more whites than Native
Americans found Redskins offensive, an agency of the
federal government found sufficient evidence to cancel
five of the Washington Redskins’ trademark registrations.
The Patent and Trademark Office must have been nervous
about canceling a home town football team’s name
and logos because the opinion it wrote was well over
a hundred pages, much much longer than a typical opinion.
The case was immediately appealed to federal court
in Washington, D.C., where it presently sits. That court
is now wondering whether it should grant the Redskins’
request to summarily rule. A decision is expected soon.
Federal courts have long been the sanctuary for minority
rights. Like the tribes of the 19th century, which occasionally
sent chiefs to Washington, D.C. to sign treaties, the
tribes of today have once again sent their representatives
to D.C. Only this time, the issue is not about land
deals or moving onto a reservation. It’s about
maintaining respect for Native Americans. It’s
also about sorting out the wheat from the chaff. Contrary
to assertions by Native American organizations, the
survey found “Braves” and “Indians”
isn’t offensive to most of us. The judge will
have to decide if the Washington Redskins football team,
with its use of a spear and profile of an Indian warrior,
takes away that respect, or adds to it.
Originally Published in the Fort Worth
Businss Press |
