We know the legal facts by now. On Wednesday, June 18, the U.S. Trademark Trial and Appeal Board, part of the U.S. Patent and Trademark Office, cancelled six different trademark protections associated with the Washington Redskins professional football team. Federal trademark law does not permit registration of trademarks that “may disparage” individuals or groups or “bring them into contempt or disrepute.”
Each of the trademarks in question contained the word “redskin.” The 2–1 decision said that “the recognition that this racial designation based on skin color is disparaging to Native Americans” was demonstrated “by the near complete drop-off in usage of ‘redskins’ as a reference to Native Americans beginning in the 1960s.”
A similar ruling was handed down in1999, but was later overturned on appeal. The current case was filed in 2006 by five new petitioners, targeting registration—and the protection it ensured—of the Redskins team name between 1967 and 1990.
Prior to the decision, strong momentum had been building to pressure the football team to change its name. President Obama, Democratic members of Congress, journalists, and other members of the public have urged the Redskins to change the name, largely through denunciation.
But the new lawsuit took a different tack, hitting the $1.7 billion franchise where it would hurt: merchandise—T-shirts, license plate holders, sweatshirts, beer glasses, decals, and more. Forbes estimates the brand alone to be worth $145 million. With that much money in the game, the ruling, in turn, could have a direct effect on other NFL franchises because football’s revenue-sharing system gives them all a stake. “Maybe this is the tipping point for the rest of the league,” said Gabriel Feldman, director of the sports law program at Tulane University.
The devil is in these details. And they will be argued, it’s predicted, for years while the ruling is appealed by Daniel Snyder, the Redskins’ stubborn owner (during which time the team can keep its trademark protection).
A legal irony: the Trial and Appeal Board explicitly stated that it does not have jurisdiction to make the Redskins “cease use of a mark, but only to determine whether a mark may continue to be registered”and therefore protected, which means that even if the team loses the trademark, it will not be forced to change its name. It will only be prevented from using the court system to prevent others from using the name “Redskins.” Also, this is a federal ruling. Anyone trying to market new Redskins merchandise if this ruling is upheld will still have to cope with state and common laws for trademarks, which are based on use.
Those are the legal facts, or some of them. Let’s look at the events they deal with. Snyder insists that the team’s name, which they have used since the 1930s, is what the New York Times describes as, from Snyder’s point of view, “a sign of honor and bravery, not a slur.” Not racist. He also claims that a survey showed that a majority of Native Americans supported the name.
Nevertheless, Native American groups have worked quietly, relentlessly, over the years to persuade hundreds of high schools and colleges to change their team names. How? By concerted appeals to students, alumni, and benefactors. Changing hearts and minds. And that’s what many are insisting must happen on the professional level, too, where names such as Kansas City Chiefs, Atlanta Braves, and Chief Wahoo of the Cleveland Indians endure. Redskins fans, business owners, and sponsors must get loud and angry, must take it to the streets if Snyder is ever going to change his mind about the name.
Suzan Harjo (Muscogee and Cheyenne), an Oklahoma woman who has been fighting against the Redskins’ name since 1992, believes this victory will lead to more teams with offensive Indian mascots feeling pressure to change. “We’ve made tremendous progress,” she says. “There were just a little over 3,000 of these in 1970 and now there are just a little over 900.” If this ruling holds, any of those 900 teams with federally registered Indian trademarks may find them thrown out the legal window.
One already-banished name and mascot is the Stanford Indian. The name was taken up by the California university in 1930, when the famous Glenn S. “Pop” Warner was the coach of the football team there. He had made his name before the First World War as athletic director at the Carlisle Indian Industrial School in Carlisle, Pennsylvania. His most famous athlete there was Jim Thorpe (Potawatomi and Sac and Fox), one of the early collegiate star football players and winner of the 1912 Olympic pentathlon and decathlon: the greatest multi-sport athlete in American history. Thanks to the stunning performance on the field of his authentic Carlisle Indians football team and his exploitation of it, Warner created the link in the public’s mind between sports greatness and the American Indian. Because of Warner, the Stanford mascot became the Indian.
In 1972 a group of Native American students at Stanford presented the university’s president with a petition urging that the “use of the Indian symbol be permanently discontinued.” The language used by the students, in a year squarely within the span considered by the Trademark Trial and Appeal Board in 2014, shows beyond any doubt that Indian mascots were indeed seen then as disparaging and bringing into contempt and disrepute an entire people. With long memories of Warner and Thorpe, how fitting that one of the earliest eliminations of a sports team’s Indian mascot happened at Stanford.
The petition from the Stanford Native American Cultural Center stated that the Stanford community was “not sensitive to the humanity of Native Americans, . . . and that a race of humans cannot be entertainment.” In changing its mascot, the university “would be renouncing a grotesque ignorance that it has previously condoned.”
“All of us have in some way, by action or inaction,” added the university’s ombudsperson when the president declared that the Indian was no longer the school’s mascot, “accepted and supported the use of the Indian symbol on campus. We did not do so with malice, or with intent to defile a racial group. Rather, it was a reflection of our society’s retarded understanding, dulled perception and clouded vision. Sensitivity and awareness do not come easily when childish misrepresentations in games, history books and motion pictures make up a large part of our experience.”
“Grotesque ignorance”? Are you listening, Dan Snyder? Those words are as fresh and relevant today as they were in 1972—which is the point of last week’s trademark ruling. Suzan Harjo has described the “historical trauma” Native Americans revisit every time they encounter a racist mascot, the “oppression” that comes from the use of these symbols. “You strip the person of humanity,” she said, “and they’re just an object.”
It shouldn’t take too much hard thinking to feel under your own skin, whatever color it is, that a term that labels an entire ethnic and racial group of human beings by the color of their skin in order to promote a football team is repellent. The particular term in question resonates with old tales of scalping, practiced by whites as well as Indians: knives, blood, white skin, red skin. The so-called Indian Wars of the nineteenth century. Removals. Massacres. Broken treaties. And on and on.
Redskin. The worst of the worst team mascot names.