Bill Newman: What’s in a name? On protecting even racist trademarks and the court of public opinion



Last modified: Saturday, January 02, 2016

This column tells the story of the ongoing battle between the United States government on one side and the curious combination of the Washington Redskins football team and a group of 20-something musicians called The Slants on the other.

For decades Native American groups and their supporters have demanded that the Washington, D.C., National Football League team stop calling itself the Redskins. Enough with the racist moniker they say.

And racist it is. America has long classified “the other” by the color of their skin — black, brown, yellow or red. For centuries the term “red man” has been disparaging. Recall, for example, the overt racism accepted by the majority culture in the song “What Makes the Red Man Red” in the acclaimed 1953 Walt Disney production of “Peter Pan.”

Today the Redskins’ owner, Daniel Snyder, insists that his team’s name offends almost no one, and he has vowed to never drop the name. Never.

In 2015, this road towards a bit of decency in the NFL (leave aside brain injuries, domestic violence and Commissioner Roger Goodell’s inveterate lying) took a critical twist. The United States Patent and Trademark Office (PTO) rescinded the Redskins trademark. The PTO grounded its decision in Blackhorse v. Pro Football on that part of the law that allows the PTO to deny or rescind a trademark that is offensive or disparaging.

That decision, not surprisingly, upset ownership. After all, the Redskins have enjoyed their coveted TM protection for half a century.

Trademarks matter because they are valuable. A trademark acts like a patent for images, names, or slogans. It protects the mark holder from misappropriation. As an illustration, consider another trademark — the Nike swoosh. Pro football, on behalf of the Redskins, appealed this decision. Today the case remains pending at the federal Fourth Circuit Court of Appeals.

Meanwhile in late December, another federal court of appeals — this one for the D.C. Circuit — entered the fray. That court ruled in another case that the part of the trademark law that allows the PTO to reject or extinguish a trademark because it is offensive or disparaging violates the constitutional guarantee of freedom of speech.

That case involves a band that has wanted to trademark its name “The Slants.” The PTO rejected the application because, it ruled, the name is racially offensive to the majority of persons of Asian heritage.

But according to the band’s front man, Simon Shiao Tam, the government — in particular, the trademark office — got it all wrong. Tam insists that the band’s name does not promote stereotypes or racism, but rather does the opposite — by reclaiming and taking ownership of Asian stereotypes and acting as an antidote to slurs inflicted on band members in their childhoods.

The federal appellate court acknowledged that words can cause pain and harm but held correctly that the First Amendment prohibits the government from censoring or discriminating against speech because of its content or viewpoint. The court relied on “the bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys.” So the Slants get to trademark their name like any other musical group.

And the Redskins, which filed a brief supporting the Slants in the D.C. Circuit, may well keep theirs, too when the Fourth Circuit decides. One federal appellate court is not bound to follow the other, but they often do. If they disagree, the issue most likely ends up at the Supreme Court.

In the courts, based on the First Amendment, the Redskins owner should win. But in the court of public opinion, the First Amendment can render a very different result.

Fans can boycott games, refuse to watch them on television and inform the advertisers that they won’t buy their products as long as they support the Redskins. (These are people who understand money.) Fans can easily stop buying the logo-laden paraphernalia. They can also communicate with management of the other teams, sign petitions and protest in myriad ways. It is, after all, the NFL itself — all the owners own this decision — that is bankrolling the Redskins’ appeals and supporting their fellow owner.

The names of professional (and college and high school) sports teams often reflect power — the Giants for example; or agile or intimidating animals such as Bears, Colts, Broncos or Rams. There are professional sports teams where one can question whether the name reflects honor or subtly incorporates insult — such as The Kansas City Chiefs, the Cleveland Indians and the Atlanta Braves. But there is only one professional sports team where the supposed skin color of a people is the name of the team.

The Washington Redskins are an outlier. We fans should demand that NFL managements stop acting like racists. If we do, they just might.

Bill Newman is a Northampton lawyer, and host of a WHMP weekday program. His column appears the first Saturday of the month. He can be reached at opinion@gazettenet.com.




 


Daily Hampshire Gazette Office

115 Conz Street
Northampton, MA 01061
413-584-5000

 

© 2018 Daily Hampshire Gazette