Laches Proves To Be the Most Valuable Player:

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.


American Indians' Views of the Redskins:

Since the Redskins controversy is again in the news, I thought I'd report some data on the subject from three years ago. I realize that different people have different views of how relevant or dispositive such data is, but I just thought I'd note it.

1. A 2002 Sports Illustrated survey reports:

Asked if they were offended by the name Redskins, 75% of Native American respondents in SI's poll said they were not, and even on reservations, where Native American culture and influence are perhaps felt most intensely, 62% said they weren't offended. Overall, 69% of Native American respondents -- and 57% of those living on reservations -- feel it's O.K. for the Washington Redskins to continue using the name. "I like the name Redskins," says Mark Timentwa, 50, a member of the Colville Confederated Tribes in Washington State who lives on the tribes' reservation. "A few elders find it offensive, but my mother loves the Redskins."

2. The Annenberg Public Policy Center National Annenberg Election Survey 2004 (conducted in 2003-04), reports:

Most American Indians say that calling Washington's professional football team the "Redskins" does not bother them, the University of Pennsylvania's National Annenberg Election Survey shows.

Ninety percent of Indians took that position, while 9 percent said they found the name "offensive." One percent had no answer. The margin of sampling error for those findings was plus or minus two percentage points.

Because they make up a very small proportion of the total population, the responses of 768 people who said they were Indians or Native Americans were collected over a very long period of polling, from October 7, 2003 through September 20, 2004. They included Indians from every state except Alaska and Hawaii, where the Annenberg survey does not interview. The question that was put to them was "The professional football team in Washington calls itself the Washington Redskins. As a Native American, do you find that name offensive or doesn't it bother you?"

3. There are obvious problems with polling American Indians -- the difficulty of getting reliable data from such a small group (which the Annenberg pollsters solved by asking a vast number of people, and which the Sports Illustrated pollsters solved by oversampling in census tracts which have a high fraction of American Indians, and then weighing the responses accordingly), the uncertainties about who really is an American Indian, the danger of undersampling Indians who are too poor to have telephones or alienated enough from white culture that they want little to do with pollsters, and so on. Nonetheless, while this may not be perfect data, it's the best data that I've seen, and it's certainly better than people's perceptions of what Indians think, which are of course prone to much more serious problems of representativeness (since such perceptions may be heavily skewed by one's own preconceptions, by one's circle of friends, or by the tendency to hear more from activists -- in any group -- than from rank and file members).>

4. Finally, while I'd have thought that most Indians would indeed be offended by the term "Redskins," given that it has often been used as a pejorative, the results that the surveys report are not at all implausible: Given that naming a team after some person or group is usually a sign of respect -- one would rarely name a team after something that one thinks is weak or contemptible (the U.C. Santa Cruz Banana Slugs are a rare and facetious exception) -- it seems quite reasonable that many Indians would focus on that more than they would on disrespectful uses of the same term in other contexts.


"'I Am a Red-Skin': The Adoption of a Native American Expression (1769-1826)":

An interesting article from the European Review of Native American Studies (2005). From the opening paragraph:

One need not accept Harjo's unfounded claim that the word redskin "had its origins in the practice of presenting bloody red skins and scalps as proof of Indian kill for bounty payments" to accept that many find the word objectionable in current use. But the actual origin of the word is entirely benign and reflects more positive aspects of relations between Indians and whites. It emerged at a specific time in history among a small group of men linked by joint activities that provided the context that brought it forth. Before its documented history can be traced, however, the false history given for it in standard reference books must be expunged.

Thanks to Bill Poser (Language Log) for the pointer; he has more on the subject, including on the specific history of the term as the name for the team. I stress again that one's views of whether the Washington Redskins should keep or change their name need not be dictated by this history; but it struck me as interesting history nonetheless, especially given that the critics of the term have relied in some measure on their own accounts of the history as well.


The Ethics of Naming Sports Teams After Ethnic Groups:

Senior Conspirator Eugene Volokh notes that polls show that a majority of Native Americans do not object to the use of the name Washington Redskins by the DC NFL team. As a general rule, I don't think that it's wrong to name sports teams after ethnic groups. Eugene correctly points out that naming a team after a group is usually the result of positive associations with the group rather than negative ones. Certainly, no one objects to the Minnesota Vikings, the Boston Celtics, or the Notre Dame Fighting Irish. The Notre Dame case is particularly telling, given that the team's name not only includes the name of an ethnic group, but also references the stereotype that the Irish are unusually violent. Team names such as the Cleveland Indians and Atlanta Braves also seem unobjectionable. Indeed, using "Braves" as a team name seems little different from using "Vikings," in so far as both terms refer to a type of fearsome warrior associated with a particular ethnic group.

I have always thought that "Redskins" is a tougher case because the word has a long history as an ethnic slur against Native Americans. Thus, I would expect them to find it offensive. And they might well be justified in taking such offense. Certainly, blacks would have justifiable cause for anger if a pro sports team used the N word as a name, and Jews if a team started calling itself the "New York Kikes." The fact that most Native Americans nonetheless do not object to the NFL franchise's use of "Redskins" suggests that the term may have lost its insulting connotations. If it has, then it might be unobjectionable after all. However, I would need to see more data about current usage of the word and about Native American awareness of its past uses to reach a definitive judgment. Even if "redskin" is no longer much used as a slur in mainstream culture, it's possible that it still gets used in that way in some parts of the country with large Native American populations.