The Washington Redskins football team is in the news again, but not in ways that should give comfort to its players or shareholders. On June 18, 2014, in Blackhorse v. Pro-Football, Inc., the United States Patent and Trademark Office (PTO) decided by a two-to-one vote to cancel seven Washington Redskins trademarks issued between 1967 and 1990. The PTO rested its decision on a provision of the Trademark Act of 1946 that makes it unlawful to register marks that “disparage persons, or . . . bring them into contempt, or disrepute.” Typically, this is determined at the time that the marks are registered, not afterwards. The basic contention of the plaintiffs was that the term “redskins” was a racial slur that should not receive the protection of the trademark law.
In my view, the case is complicated. On the merits of the lawsuit, the dissent had the better argument. But as a practical matter, the term seems uneasily out of date. No matter how passionately Redskins owner Daniel Snyder defends the use of the name, the groups that oppose it will not back down. Their wounds will fester despite what happens in the court of law. How then should the team respond? The fashionable view is that the Redskins should abandon the name. In my view, the team ought to heed the sentiments of the disinterested observer.
Blackhorse is not the first attempt to invalidate Redskins trademarks. In 1999, the PTO invalidated six hugely valuable Redskin trademarks, only to be reversed by the 2003 decision, Pro-Football, Inc. v. Harjo. After exhaustively reviewing the record, Judge Colleen Kollar-Kotelly concluded, “The Evidence Below [in the PTO] is Insufficient to Conclude that During the Relevant Time Periods the Trademarks at Issue Disparaged Native Americans or Brought Them Into Contempt or Disrepute.” That finding should govern this case. To be sure, different plaintiffs can bring successive suits ad nauseam until one of them strikes gold. But the legal system should not cater to such strategic behavior when all protesters seek the same cancellation remedy. The 2014 PTO majority danced around this issue, but to no effect. The passage of time added nothing to the record that was not available in the 1999 case. On this simple basis alone, Pro-Football should win if it chooses to fight on in court.
The Timing of the Case
The Trademark Act evaluates disparagement claims as of the time of trademark registration. The 23 year period between 1967, when the first of these marks was registered, and 1990, when the last was registered, represents a sea-change in American politics and culture, which saw the virtual displacement of the term “American Indian” by the phrase “Native American,” except in a few key instances. Thus the National Council of American Indians (NCIA), which in 1993 adopted a resolution condemning the term Redskins as a racial slur, keeps the word “Indian” in its title. Self-identification is one thing; the use of a given term by an outsider is quite another. Clearly, no new team today would march under the Redskins banner. But it does not follow that at an earlier time, these terms had a negative connotation, when they were introduced without challenge. The PTO’s decision would have been more credible if it confined its disparagement findings to the later trademarks, allowing the earlier ones to stand. But the PTO’s all-or-nothing approach makes it painfully clear that this is a politicized response to contemporary perceptions that are irrelevant to the statutory inquiry. If not thrown out as moot, Blackhorse should be remanded for time-sensitive inquiry on the appropriate legal standard.
The “Disparagement” Standard
The meat of this case turns on the meaning of the statutory term “disparage.” On this question, the PTO majority took the very strong position that “intent does not fit into the equation.” As a matter of ordinary English, that conclusion has to be incorrect. Webster’s 1913 dictionary offers this definition: “To dishonor by a comparison with what is inferior; to lower in rank or estimation by actions or words; to speak slightingly of; to depreciate; to undervalue.” Similarly, a quick romp through the thesaurus unearths the following rough synonyms for disparage: belittle, mock, ridicule, sneer, vilify, denigrate, deride, or scorn. Each term refers to the undesirable mental state of the party that has made the remarks, and not its effect on the persons responding to the words. The term “disparage” is also linked to the words contempt and disrepute, which are also terms that refer to the intention of the speaker.
Taken in context, therefore, this disparagement claim is exceptionally weak. As I argued some time ago on Ricochet.com, teams do not choose names just to denigrate the group described by the name. It was not, as the PTO majority notes in accepting the testimony of Pro-Football’s expert witness that “the word nigger is inherently disparaging regardless of context and presumably intent,” which is why the N-word has never been used by any owner in its team name. The nicknames that teams choose for themselves are brands around which the entire identity of the team is organized. That name does more than lure customers through the turnstiles. The strong brand allows the team to sell everything from jerseys to memorabilia. It allows the team to organize its fan groups. It offers a convenient way to increase its civic engagement in the community of which it is a part. The passionate attachment that many fans in Washington D.C. and elsewhere have to the Redskins brand has to be interpreted as showing its positive connotations. Indeed, if any brand is offensive to the bulk of its own customers and supporters, it would surely be pulled voluntarily.
This disparagement claim, moreover, bears scant resemblance to the paradigmatic precedents. It is a form of disparagement to brand a treatment for venereal disease “Doughboy” because the treatment’s selling point is its effectiveness against venereal disease contracted by American soldiers in Europe in World War I. Likewise, it is surely derogatory to name a wine “Khoran.” Khoran is the phonetic equivalent of Koran, so that the term is derogatory of Muslims for whom the consumption of alcoholic beverages is forbidden. In both cases, the successful branding strategy depends on the negative connotations given to the groups referred to in the trademark, which is not the case here.
If disparagement fails, what about offense, or the impact of the trademark on its audience? That shift in emphasis creates huge complications for two reasons. First, disparagement depends primarily on the speaker’s state of mind. But offense depends on the composition of the trademark’s audience. In addressing this issue, the PTO asked whether the term is offensive to a “substantial composite” of its audience, even if short of a majority, which is a legal formulation that raises as many questions as it answers. It is beyond dispute that the Redskins have kept the term to attract and energize its fan base, most of whom like the name. Given the widespread publicity of sports teams, the trademark’s actual audience will go far beyond the fan base, to the public at large, including the various Native American groups up in arms about the use of the term.
But just which portion of the brand’s broad audience determines whether the term is offensive? The plaintiff’s position is that their special interest in the case should trump. That interest is surely sufficient to give them standing to challenge the trademark, by showing some special grievance with it. But it hardly follows that cancellation should turn only on their sentiments. As the PTO majority documents, some Native American tribes like the association on the ground that it shows strength and fortitude. Making the correct assessment of these divided sentiments is one reason for keeping the notion of offense outside the statutory framework. But the majority opinion waded into this thicket by concluding that the loud and insistent negative voices drowned out the positive ones.
Unfortunately, this approach creates a huge moral hazard, such that groups that are opposed to the use of any trademark will work themselves into a white heat in order to demonstrate the offense sufficient to block its use. Yet it is hardly sound public policy to let vigorous opposition create legal rights, for that would allow any heckler to silence all speakers in the public square.
Indeed, the question of offense, if relevant at all, should always be determined with reference to some disinterested population which lacks the incentive to magnify its preferences. Today, the sentiments of this unattached middle may well be against the use of the name. But it is not likely that the same would have been true of that same sample of the population at the time at which these marks were registered. The claims of offense do not therefore support the statutory claim of disparagement.
In this politically charged environment, it is hard to predict whether the trademark will be sustained or cancelled if the case is appealed. But difficulties abound either way. If the mark is cancelled, the Redskins can still use the name, even if they cannot prevent others from using it as well. And the team may well be able to bring actions for defamation against any Native American group that makes false statements about their actions or motives. If the mark is not cancelled, the current protest campaign could go on indefinitely, which could damage frayed race relations further. Right now, the Redskins want to dig in against their critics, and they will be backed to the hilt by their most ardent fans.
After some reflection, I would take a more detached view. If the team and Pro- Football generally conclude that the term is offensive today to large numbers of disinterested persons, they should switch to some other name in order to preserve social peace. If the situation is otherwise, they should keep up the fight and resist the partisan attacks against them. I am no pollster, but I think that the level of perceived public offense is on the increase, and if that is the case, then the Redskins should yield to prudence, and leave the name to pass into history.