The agency can’t stop the team from using the name but they can make it very, very costly for them to do so.
I’m tempted to cite this as proof of the influence that lefty media, which has seized on this issue as a cause celebre over the past year, has on government, but the truth is that this battle has been waging inside the PTO for decades.
The U.S. Patent and Trademark Office rejected an application to trademark the name “Redskins Hog Rind,” writing that the term “Redskins” is “a derogatory slang term that refers to, and is considered offensive by, American Indians.”
The agency cited five definitions from online dictionaries – from The Oxford Dictionary to Yahoo – that labeled the word as offensive or disparaging. In addition the agency pointed to news articles about Native American challenges to the Redskins name, including the policy of the National Congress of American Indians, which officially refers to the team as the “R*dskins” or “R Word”…
Federal law prohibits trademarking any term that may be immoral, scandalous or may disparage another person. To determine what crosses the line, the agency looks at two questions: 1) the term’s likely meaning and use in the product’s context and 2) whether the phrase disparages a specific group of people.
The obligatory statement from Ray Halbritter, the team’s most high-profile Native American critic:
“The USPTO ruling sends a powerful message to Washington team owner Dan Snyder and the NFL that in the name of basic decency and respect they should immediately stop spending millions of dollars to promote the R-word,” said Halbritter. “This is a huge potential precedent-setter rooted in the painfully self-evident truth that the Change the Mascot campaign has been reiterating: The R-word is a dictionary defined slur designed to demean and dehumanize an entire group of people. The federal government was right to declare that taxpayers cannot and should not subsidize the promotion of that slur through lucrative patent protections.”
Here’s the text of the letter. Denying a guy a trademark for his pork rinds doesn’t mean that the football team’s trademark is automatically invalid, but it does lend momentum to the claim filed with the PTO last year seeking to have the team’s mark revoked on grounds that it’s offensive. You can imagine the toll that would take on their bottom line. Once the mark’s revoked, all of America will be free to make and sell its own Redskins merchandise without fear of being sued by the club. Great news for ‘Skins fans who are looking for cheap jerseys and sweatshirts, not so great for Dan Snyder. Does the name, or simple pride in not bowing to P.C. forces, mean so much to him that he’d forfeit the team’s merchandising revenue to keep it? (Spoiler: No.)
As I say, though, there’s a history here. For starters, per WaPo, this isn’t the first time a mark’s been denied on grounds that “Redskins” is offensive. It’s happened four times before. The pork rinds case is getting attention because it’s timely, not because it’s novel. The claim filed with the PTO last year to revoke the team’s trademark isn’t the first of its kind either. A similar claim was filed in 1992 — and proved victorious in 1999 when a three-judge panel declared the mark offensive. The ‘Skins appealed and won in federal district court in 2003, partly because the PTO hadn’t fully explained why “Redskins” was disparaging and partly because the plaintiffs had waited too long to challenge a mark that had been granted in the 1960s. That decision was appealed and the appellate court ruled that it was unfair to expect the plaintiffs, one of whom was only one year old when the ‘Skins trademark was granted in 1967, to have filed suit soon thereafter. On remand, the district court ruled again for the team on grounds that the youngest plaintiff had turned 18 several years before the trademark challenge was brought in 1992. If you’re truly offended, the reasoning went, you should have filed a claim as soon as you were legally able to, i.e. when you turned 18. Believe it or not, that’s an issue in the new PTO claim filed last year too. The new plaintiffs are Native Americans aged 18 to 24, and the Redskins have challenged the youngest on grounds that they waited until near the end of their 18th year to file rather than doing so at the very beginning. Hmmmm.
There’s one more X factor:
As the 90-minute hearing before three judges on the Trademark Trial and Appeal Board showed, the case against the team is not as simple as declaring that the word “redskins” is a slur and therefore shouldn’t have federal trademark protection. The group of five Native American petitioners has to show that the name “Washington Redskins” was disparaging to a significant population of American Indians back when the team was granted the trademarks from 1967 to 1990.
That raises an interesting question of when, exactly, “Redskins” became offensive. The team will insist that it isn’t offensive and that arguments that it is are chiefly a byproduct of the rise of political correctness over the past 20 years, after the trademarks were granted. The plaintiffs will argue that the term was always disparaging and offensive to Native Americans but was tolerated by the wider culture in less enlightened times. The secondary question is whether “Redskins” can be disparaging in one market context but not in another. If it’s offensive when used to sell pork rinds, why might it not be offensive when used to sell merchandise for a football team? Judging by the time frame of the last PTO lawsuit, we should have answers to these important questions sometime around, oh, 2030 or so. Which means it’s irrelevant, as the team will have long since changed its name by then.