Washington’s football team didn’t have a great season. And their troubles are only compounded off the court.
A Federal district judge ordered the cancellation of all of the Redskins’ trademark registrations, the latest step in a long legal battle. Of course the team will still have some common law trademark rights, and will retain the right to use the name—but why would they want to?
For years, Native American activists have been fighting against the team name, and this decision marks the highest victory they’ve scored in the U.S. court system. The judge held that the mark was disparaging to Native Americans, and that the government’s trademark program is “government speech,” not subject to the First Amendment.
Of course there’s still the option for the team to appeal the decision—which the team’s president vowed to do on Wednesday—and no matter which way the future courts go there’s no way the federal government could compel them to change their name. Though the Redskins have yet to comment on the decision, all signs so far point to trying to keep the name.
What’s unclear to many at this point is why this is a battle worth fighting for the team.
Admittedly, a football team isn’t as covered by common law trademark as a small business would be: Canceled trademarks mean the Redskins can no longer record their registration with customs and border patrols, making it harder to curb counterfeit Redskins goods. And although they retain common law trademark rights to their brand, those battles will now have to be fought without the presumption on their side.
But Kevin Hartley, co-founder and trademark attorney at Trust Tree Trademarks, sees a point of dwindling returns for the NFL team here.
“The lesson here for business owners is: How much bad press are you willing to put up with? Because the Washington Redskins are not getting any good press out of this. Even if they win at this point I don’t think they’re going to get good press out of that,” said Hartley, who also blogs on The Root. According to him, public opinion is no longer on the side of the Redskins, and economic sense isn’t either.
“You can confidently say that there is whole lot of money in rebranding sports teams. The opportunity to come up with a new name, all new apparel. Since they’d still have common law trademark on the name they could probably still have ‘throwback’ items [if they wanted to]…But I have a first do no harm approach with trademarks: If you have an opportunity to come up with something that isn’t going to offend, why not take it?”
For the D.C. team, it comes down to tradition. But Lael Echo-Hawk, a native law attorney at Garvey Schubert Barer, says those arguments aren’t cutting it anymore.
“People tell me ‘It’s meant to honor you’—whoever started that really should’ve patented it, because it’s been spread around so much. It was never meant to honor anybody, and I’m glad the court recognized that. We should be allowed to speak for ourselves, ” said Echo-Hawk.
And as long as Snyder continues to defend the increasingly unpopular name, Native American rights and treatment are closer to center stage. Echo-Hawk has already seen more conversation around the issues facing her community, similar to Caitlyn Jenner and transgender rights. In that way, Hartley thinks this decision opens up the door to more disenfranchised communities to take a stand against offensive trademarks.
“USPTO has shown [with other cases] that the threshold for disparagement isn’t that high; you only need some people from that group who are offended, not even necessarily a large majority or percentage…This decision certainly helps groups out there take some solace that evenif they’re a small group or don’t have a loud voice the courts will still listen,” said Hartley.
Even if these decisions are seemingly small, they can represent huge victories for the Native American community, according to Echo-Hawk.
“Is the Redskins name an issue we should be upset about? My opinion has always been absolutely; we have to think about who our kids emulate, and what they think about themselves,” said Echo-Hawk, who also edits Garvey’s Smoke Signals Indian Law Blog. “If you treat someone as a caricature, a cartoon, you’re not treating them as a real human being; you’re not teaching them the value of themselves…If someone were to call me a redskin we’re going to have problems. It’s hate language. And I don’t know why Native Americans are always on the bottom of the totem pole when it comes to acknowledging the racism we struggle with. Decisions like this—coupled with Obama not supporting a new stadium for the team—is great. Baby steps are still steps.”