In Pro Football Inc. v. Harjo, several American Indians were challenging the validity of the Washington Redskins trademark on the ground that it was "disparaging," which trademarks aren't allowed to be. (The federal trademark statute provides that, among other things, marks generally aren't allowed when, among other things, they "[c]onsist[] of or comprise[] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.") If the plaintiffs had won, that wouldn't have legally barred the trademark owners from using the mark; but it would have stripped the owners of some of the legal rights they'd have to police the mark against infringers, and thus would have given the owners some incentive to switch to a fully legally protected mark.
The trouble is that the challengers apparently waited for a long time in bringing the lawsuit, which triggers "laches, an equitable defense that applies where there is “(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.”" The district court held in Pro-Football's favor, and the D.C. Circuit just affirmed.
Other American Indians who just turned 18 could still bring the same substantive claim, since they would not have exhibited any "lack of diligence." Still, this is a pretty big victory for Pro Football. Even if it has only delayed the possible cancellation of the mark -- not at all clear, since they might eventually win on the merits -- it has gotten many extra years during which to exploit it (and I take it that the league's judgment in defending this lawsuit has been that the Redskins mark is much more valuable, at least right now, than any replacement mark would be).
Thanks to How Appealing for the pointer.
Related Posts (on one page):
- The Ethics of Naming Sports Teams After Ethnic Groups:
- "'I Am a Red-Skin': The Adoption of a Native American Expression (1769-1826)":
- American Indians' Views of the Redskins:
- Laches Proves To Be the Most Valuable Player:
And the Cowboys. What can I say? Just look at the way they folded at the end of last season...
I've always liked Tony Kornheiser's solution - keep the name, change the logo to a potato.
Most medieval Scandinavians were farmers; however, the word Viking is not synonymous with Scandinavian. The word refers specifically to those who chose to engage in pillage and rapine, and derives from the word wic, a temporary camp set up while they were out on a tour of raiding.
Heh. Define victory.
Victory. n. The opposite of what the Washington Redskins usually achieve.
"Most Vikings were farmers and the typical depiction is an over simplification that ignores their rich culture and accomplishments."
To nitpick, "viking" is a job description, like "farmer," meaning one who engages in exploring/piracy. It's pretty much a direct translation of "Raiders." "Vikings" may have been part-time farmers, but the term is not an ethnic term at all. The equivalent would be tall people suing the New York Giants or something.
I wonder if there's a word that means "victory" in the lost language of Bengali...
There is another reason that I suspect that the team need not worry too much about the outcome of a revived suit, namely that, as I understand it, the question is whether the mark was disparaging at the time of registration, not whether it is currently disparaging. Harjo et al. have adduced evidence that "redskin" is currently considered disparaging (though it is questionable whether it is disparaging in context), but they have failed to adduce any evidence that it was disparaging at the time of registration. Their claim that it has always been disparaging is not only unsupported by evidence but has been conclusively refuted. (See my LL post summarizing Ives Goddard's treatment of this question.) Unless they are able to adduce new evidence on this question, I would think that a new suit would fail, quite possibly on summary judgment.
Tell that to Sambo's, whose name was made by combining the the first names of the founders, Samuel and Beauregard.
All these became symbols of different groups of people. Heck, when someone says "redneck", is a Presbyterian the first thing that comes to mind? It's what the word originally meant.
Tell that to Sambo's, whose name was made by combining the the first names of the founders, Samuel and Beauregard.
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I think this confuses two issues: whether the mark was considered disparaging at the time of registration, which I think was the case with Sambo's, and whether the etymology of the mark was disparaging, which as you explain it, it was not. In other words, if Sambo's was a blend of the founders' names, it may not have been intended to be disparaging, but it may nonetheless have been perceived as disparaging at the time of registration.
It is not true that anyone who feels offended by a trademark has standing to challenge its registration.
Oh, I guess I am a liberal now. I'll just wander off and watch the New York Hebes/Detroit Darkies game.
I for one do not question that some Native Americans sincerely find "redskin" disparaging. I'm not sure that anyone else here has questioned this. On the other hand, if "legitimately" means "with reference to history" rather than "sincerely", it is quite clear that the term was originally not disparaging and that Harjo is blowing smoke in claiming that it was.
Let's try them out now. You first.
Why do I get the impression this thread is larded with smirking white boys who feel put upon by ANOTHER minority, AGAIN (cue: loud audible sigh).
Just dump the damned name already, it's embarrassing.
The issue under discussion is the legal issue, not the ethical or political issue of the team should do. I don't think that it is fair to make any inference as to what EV or most commentors think about the non-legal issues, much less what attitudes we may have.
Pickaninny was another, which you can hear used in classic 1940s films such as His Girl Friday and The Philadelphia Story in plainly obvious non-derogatory usages.
Why can't anybody here just answer my freaking question instead of trying to make excuses for this?
MY point was that the NFL should sack up and do the obviously right thing already. If this is not the concern of lawyers, so be it.
This would be a better point if they hadn't decorated their restaurants with pictures of little black boys and tigers. The outside of the Sambos in the town I grew up with hand a giant plastic black boy holding a stack of pancakes outside.
Here's a link to what people find so offensive about the name:
Wikipedia
What's your question? If it is here at all it is submerged in all your statements of position.
Why won't the NFL, in an exercise of common decency, do something without the threat of court action to get rid of this name?
Is not the kind of question lawyers are prepared to address? If so, I have another question--what does that say about lawyers as moral agents?
The word survives today. In the English-speaking Caribbean, in patois, the word is "pickney." It just means "child," not even "black child," [although usually the "child" it refers to is black]. It's very commonly used, and has no derogatory meaning at all.
Because organizations do not easily give up on marks they have put a lot of investment energy and money into. It may also be that they have done research and decided whatever trivial amount of goodwill they would receive from such a move would be negated by fan reaction.
"The Redskins are so pathetic they even lost their own name."
If you've watched this at all at the university level the wider reaction has not been all that positive. The NFL has a greater ability to resist than individual schools, especially since the NCAA is against them where the league is with the team here.
I can't speak for the team or the league, but one answer should be pretty obvious from the opinion, namely that it would cost them a great deal of money to do so. I have no expertise in this area, but the court seems to accept the claim that they have a great deal invested in the Redskins trademark and that changing the name of the team would both throw away that investment and have considerable up front cost.
Purely as a matter of speculation, a second factor might be that the way the case for a change has been argued by Harjo et al. makes the team out as having been racist, so that changing the name would be an admission of past racism. Insofar as the team considers the charge of racism false, I can see it being reluctant to take an action that would imply otherwise.
I don't see why you see the failure to discuss this issue as a "gambit". This is a legal blog. EV's post is about a technical legal issue. You may not be interested in technical legal issues, but other people are. Discussion of such issues is not evasion of other issues any more than discussion of, say, knitting on a knitting blog constitutes evasion of the genocide in Darfur or the situation of women in Afghanistan.
Parties guilty of torts and crimes shouldn't benefit because they are able to keep their crimes and torts hidden. Especially when they committed other crimes, torts, and rights violations to conceal the initial, earlier ones - evidence tampering, forgery, additional acts of fraud, extrinsic fraud, tampering with Constitutional rights like Notice/Counsel, conflicts of interest, breaches of fiduciary duty, legal malpractice, etc.
On a sidenote: "Viking" necessarily implies a raider of germanic, scandinavian, or northwestern european origin rather than any kind of generic raider.
And "colored" is used in South Africa. So what?
We are talking about the US of A.
Did anybody bother to read the Wikipedia link I posted about "darky iconography"? It was all very acceptable. Then the NAACP, and others, began to complain about it, and, not too long later, it wasn't acceptable. Period.
There isn't going to be a "Washington Redskins" 50 years from now, nor likely even in 25 years. It is inevitable. So, why must the NFL be pushed into doing the decent thing? What the hell is wrong with it?
Yes, I know the answer, but I'd like someone to acknowledge the reason for their moral paralysis.
PS:
Sorry to annoy all you lawyers and wanna-be lawyers with moral arguments.
Incidentally, I think that you are on rather thin ground complaining about my inability to understand a question that you did not in fact ask.
I will, when I eat there tomorrow morning.
The original Sambo's is still open and thriving here in Santa Barbara.
The league is prepared to perpetuate a racially derogatory term for as long as it can because it believes there is more money to be made/saved that way. Exactly. This is, frankly, despicable. Is an effort to shield this despicable conduct in the courts beyond the discussion in a "legal blog"?
How odd.
When I read your comment, I thought:
What's wrong with "Falcons"?
Nap time!
Are you suggesting that the team is using it for the purpose of offending or insulting or disparaging Native Americans?
As a general matter, words like "pikanniny" (or however you spell it) were always offensive and used in a derogatory sense, even if being derogatory was socially acceptable at the time. Other words, like "colored" were clearly NOT considered offensive at the time. They have become somewhat tainted because, I presume, some subset of European Americans used them derisively, to refer to "the blacks" or "the coloreds." With time, the use of those adjectives as nouns (and the omission of the following noun "people") came to be taken as offensive, at least depending on whether an African American was speaking them or a European American was. Can you provide some similar history for "Redskins"?
Can you provide any objective evidence about why this word is so tainted that it cannot be trademarked? Your repeated question takes it as a given that the word is so horrendous that it cannot be used. Yet you offer neither evidence nor an objective rule to be used in making those determinations.
I already said that "Redskins" is not like the tribal names used by some schools, so why you brought that up I do not know. It is much more akin to "Darkies".
Maybe CalTech could become "The Yellow Peril".
Guess we shouldn't wait around too long for that, huh?
I wasn't making a point. I was just sharing something I knew about a word discussed in the comments.
But I agree, just because some black Americans in the Virgin Islands use the term "pickney" [or some people in South Africa use "colored"] doesn't mean it's appropriate for profitable use by a sports team here in mainstream/mainland America. "Redskins" is offensive and shouldn't be used. The Cleveland Indians logo/caricature is also ridiculous.
The "we won't be able to sell merchandise if we change our logo" argument is weak. Teams change their colors, jerseys, and logos all the time.
For the same reason it came to be seen that "darky" was no longer acceptable. Is that answer too hard or too easy to understand?
Let me repeat something I said earlier:
"Why do I get the impression this thread is larded with smirking white boys who feel put upon by ANOTHER minority, AGAIN (cue: loud audible sigh)."
Is the standard different based on whether the organization is commercial or advocate?
Perhaps we are just tired of ever more PC crap. There is no right to not be offended.
If someone got the team to change their name through boycotts or other forms of public pressure rather than attempting to use government to do the same there would be far less interest.
I raised the NAACP in this thread long ago. And your feint at ignorance (I am giving you the benefit of the doubt, for now) is unconvincing. So unless you are truly aggrieved at your inability to respectably refer to African Americans as "colored people" while they still can, please, take it to the curb.
Getting rid of the Redskins name is pointless. It would enrage tens of thousands of football fans, just so a few PC-types can feel good about themselves. Not to mention it would cost the league a lot of money. It's unfortunate that the team has a racist name, but c'est la vie.
So a request for common decency is "PC crap"?
QED.
'Night, all.
Washington Rednecks
Washington Roundeyes
Washington Whiteeyes
Washington Honkies
Washington Spades
Washington Hebes
Washington Kikes
Washington Nigras
Washington Niggers
Washington Darkies
Washington Wops
Washington Guineas
Washington Dagos
Washington Harps
Washington Paddies
Washington Peckerwoods
Washington Coons
Washington Macacas
Washington Gooks
Washington Chinks
Washington Nips
Washington Crackers
Washington Hymies
Washington Frogs
Washington Yids
Washington Gringos
Washington Ofays
Waashingto Bohunks
Washington Micks
Washington Towelheads
Washington Spics
Washington Wetbacks
Washington Beaners
Washington Polacks
Washington Assholes (not really on point and too ambiguous)
No, I'm not serious. Not too serious, anyway.
Caltech, like every good engineering-heavy institute, is and will always be the Beavers.
Whoops.
Given their record I think you've got the right answer here.
To employ your sort of language, why do I get the impression you are a smirking, PC-obsessed busy body who has annointed yourself Big White Brother to teach those ignorant Indians what to think?
90% of American Indians report that they are not offended by the term "Redskin" as used by the NFL team. I submit that they are a better judge of the offensiveness (or not) of the word than you are.
On the other hand, I hope no one's implying that the language above applies only to racial or ethnic groups when they explain about Vikings. Surely any reasonably recognized group of people would have similar grounds.
For instance, imagine if Washington abandoned the Redskins mascot to adopt the Shysters (DC, more lawyers per captia, etc.) complete with a guy in a foam rubber shark in a cheap suit as a mascot...
For instance, imagine if Washington abandoned the Redskins mascot to adopt the Shysters (DC, more lawyers per captia, etc.) complete with a guy in a foam rubber shark in a cheap suit as a mascot...
Of course you would have to explain to many, if not most people that the term is rooted in Shakespearean anti-semitism. It's gotten into the common parlance so much that I wasn't even aware of the connection until you pointed it out just now. And I'm pretty familiar with Shakespeare. Sheesh, another unusable word. Are fraud, swindler, and chisler still OK?
With that out of the way, the question is whether Redskin (as opposed to Indian or Chief, say) is derogatory. Is it? Justify your answer.
Not really. I think you're confusing 'shyster' with 'shylock' (for moneylender). Lawyers may have been held in such low regard in William's time they didn't need a sobriquet--the very word 'lawyer' was derisive enough, as witness:
Henry VI, Part 2 Act IV, Scene 2
Remember though, that Dick the Butcher was at heart an anarchist--and one clear understanding of this often misquoted set of lines is that Dick the Butcher was calling for the collapse of civilization--and the legal profession was an obstacle to that quest, which was Shakespeare's point.
Why won't the NFL, in an exercise of common decency, do something without the threat of court action to get rid of this name?
Because it would be bowing to an indecency to do it.
I think you cannot show it to be a derogatory term either as used by the team, or as seen by fans, or as seen by the general public, and for that matter as seen by most More Native Then Thou Americans.
Because a minority ethnic group decided it could increase it's political advantage by claiming the moral power to define the meaning of words as they pertained to them? Their success without recourse to law, but through persuasion, this legitimizes them to the extent that effort is legitimate*.
It isn't decent to concede through the color of law such power to any ethnic group, and it is especially pernicious to concede such authority to such a terribly small subset of an ethnic group--not to mention it entirely undermines your own argument that it is such a subset.
Even if the proportions were reversed, their sole just recourse is to protest in a manner consistent with the constitution--the exercise of their actual rights, which are rightfully the same as everyone else's--and if the general population should ignore that, that's how that cookie crumbles; it is a far more indecent thing for the government to police such things.
*And the jokes made by persons of all skin colors about what words are allowed this year show the degree to which the cynicism also associated with the notion is appreciated.
Yours, TDP, ml, msl, &pfpp
Because it would be bowing to an indecency to do it.
I think you cannot show it to be a derogatory term either as used by the team, or as seen by fans, or as seen by the general public, and for that matter as seen by most More Native Then Thou Americans.
Because a minority ethnic group decided it could increase it's political advantage by claiming the moral power to define the meaning of words as they pertained to them? Their success without recourse to law, but through persuasion, this legitimizes them to the extent that effort is legitimate*.
It isn't decent to concede through the color of law such power to any ethnic group, and it is especially pernicious to concede such authority to such a terribly small subset of an ethnic group--not to mention that the facy it si such a small subset entirely undermines your own argument.
Even if the proportions were reversed, their sole just recourse is to protest in a manner consistent with the constitution--the exercise of their actual rights, which are rightfully the same as everyone else's--and if the general population should ignore that, that's how that cookie crumbles; it is a far more indecent thing for the government to police such things.
*And the jokes made by persons of all skin colors about what words are allowed this year show the degree to which the cynicism also associated with the notion is appreciated.
Yours, TDP, ml, msl, &pfpp
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