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NEVER Means Forever, Until it Doesn’t

By Steve Baird® on July 10, 2020
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Never is supposed to last forever. Forever is never supposed to come to an end. Neither are possible to measure in time, for as long as they continue to be true.

The wait for either to fail, can last for an infinite period of time, until they collide. We have witnessed such a collision during the past week in our Nation’s Capital.

Despite majority owner Daniel Snyder’s 2013 promise to “NEVER“ change it, the Washington R*dskins NFL franchise team name is about to become history.

Speaking of history, 25 years before Snyder’s promise, previous owner Jack Kent Cooke conveyed basically the same message, but he used more words to do so:

“There’s not a single, solitary jot, tittle, whit chance in the world” of a name change. “I like the name and it’s not a derogatory name.”

More than fifteen years before that in 1972, then team owner Edward Bennett Williams, met with a group of Native American leaders to hear their objections, yet the name survived; only fight song lyrics and cheerleader uniforms changed.

A decade before that in 1962, George Preston Marshall, founder and owner of the team for nearly forty years, finally agreed to allow African Americans on the team, but only after the federal government threatened to block continued use of the D.C. stadium located on federal land; before that he’s reported as proudly saying:

“We’ll start signing Negroes, when the Harlem Globetrotters start signing whites.”

With that awful history and dogged grip on the indefensible name, the arrival of NEVER and the end of Forever for the the R-Word brand name is long overdue.

On Juneteenth 2020, the George Preston Marshall statute at RFK Stadium was removed and taken away, but only after it was defaced and spray-painted red.

Only Mr. Snyder knows the true tipping point for the inevitable name change that insiders say will follow a “thorough review,” and the timeline to effectuate it.

Most suggest the tipping point was when the sponsors spoke up, starting with FEDEX on July 2, the day before the team announced the “thorough review.”

Presumably the “thorough review” won’t require revisiting dictionary evidence of the racial slur, or re-examining the mountain of evidence and legal briefs against the name, during the Harjo and Blackhorse cases, spanning a quarter of a century, or the two TTAB decisions and one federal court finding disparagement.

Instead, the “thorough review” more likely signals to impatient sponsors that change is coming; and as news reports continue to pour in, it appears that the team is unlikely to use Native American imagery as part of the new brand name.

As you know, I’ve been passionate on this issue always maintaining a name change for the team was only a matter of time; it appears that time is finally here.

As loyal readers will recall, more than a decade ago, I published this observation:

“‘Re-Branding Madness in Washington’ Overlooks Obvious“

Then in 2017, I wrote the following, in a long overdue tribute to Suzan Harjo:

“[I]n the end, it is about the money, and the NFL clearly has had sufficient funds to defend the indefensible for a quarter century now, so isn’t it time FEDEX and other NFL sponsors step up and get on the right side of this issue, with their money? Let’s all follow the money.”

What we have witnessed within the last week demonstrates not only a dramatic continuation of the racial justice movement spanning the world, but the extraordinary power of brands and the sponsorship dollars they invest, and perhaps as importantly, the power of those who choose to invest in those brands.

Daniel Snyder surely meant NEVER to mean forever, but in 2013, he could not have foreseen how quickly the world has changed over the last six weeks.

Most of the focus now appears to be on what the new name will be. One report suggests the Washington Warriors, without Native American imagery. Good luck.

Another suggests the Washington Redtails, in honor of the Tuskegee Airmen who fought in World War II. If so, Above the Law has identified a trademark problem.

How likely is it that Snyder’s current “thorough review” is focused on the idea of NEVER moving from the frying pan into the fire? If so, that could take Forever.

UPDATES:

USA Today reports team will announce name change today, Monday July 13, 2020.

It’s official, the team has confirmed retirement of the name and logo, and the announcement of a new name will follow, to last for the next 100 years.

Photo of Steve Baird® Steve Baird®

View my professional biography

Just so you know, I’m all about brands and the law, both professionally and personally. I regularly annoy family and friends in retail stores by focusing on product labels—not to buy the product, but to read the fine print…

View my professional biography

Just so you know, I’m all about brands and the law, both professionally and personally. I regularly annoy family and friends in retail stores by focusing on product labels—not to buy the product, but to read the fine print and ask, “Who owns these brands” and “Did they really register those marks?” To understand the depth of my passion for brands and helping clients achieve their business goals, legally, you must understand that my interest in business and branding goes back to the late 1960s. The very first brand I recall profiting from was Jiffy®. Even before being old enough to deliver papers for the Iowa City Press Citizen, between episodes of Bewitched®, I would bake cupcakes and walk my finished product door-to-door, sampling along the way, of course, throughout our Kimball Road neighborhood, mostly selling them to husbands whose wives didn’t bake enough (probably watching Bewitched®), according to them at least. One hundred percent profit margins are easy when you can use the necessary equipment and raw materials directly from Mom’s kitchen. Mass producing “hot pads” (pot holders, not real estate) and selling them door-to-door was another favorite childhood business venture at the ripe age of six. Graduating to lawn-mowing age worked well with my paper routes because I could easily see who needed help cutting their grass and, in some cases, avoiding neighborhood ridicule. Yes, you’re right, Dad loaned me his Lawn-Boy® mower on weekends, rent-free, and even bought the gasoline (Dad was not brand loyal at all with gasoline, so I have no brand memory there). Another pure profit opportunity. Let’s just say that Mom and Dad were generous, unsecured investors in my development and future. Thanks Mom and Dad, I now understand the meaning of overhead and capital improvements! I bucked a lot of family tradition and jokes to become a lawyer and a trademark guru. There is not one lawyer in the family tree, as far as my sister knows (and she would know). Nearly everyone is, or was, a teacher of some kind. That must be where my passion for educating others about the legal implications of branding comes from. Basically, I have been speaking about the legal implications of branding since the early 90s, after permitting my pharmacist’s license to expire (after being a victim of an armed robbery where Dilaudid® was on the top of the gunman’s list of desired controlled substances), and shortly after working for an 86 year old federal judge whose chambers had a nice view of the White House in Washington, D.C. While I’d like to say that the movie My Cousin Vinny inspired me to become a lawyer, it was released two years after I graduated from law school. So, really, I guess it just inspired me to be a better lawyer and leader. For now, you can call me a “thought-leader” in the trademark world, and the thankful leader of a very talented group of creative and insightful lawyers and staff who are dedicated to putting our intellectual property clients in the best possible position to achieve their business goals. When I’m not in the office, “cracking the whip,” making sure others in the group keep their bios on this blog short and sweet, working (which isn’t to say I’m not still thinking about my clients’ businesses), or soaking it up in the hot-tub with my soul-mate, I am a dedicated family man – a.k.a. the chauffeur. Until they reach the driving age, I’ll continue to shuttle my four wonderful kids around to their athletic and other events, at which you can find me cheering in the stands.

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