Thursday, October 12, 2006

Redskins: What's in a name?

Attorney Jeremy Elman wrote a legal analysis of the recent case filed by a group of Native American twenty-somethings to cancel trademark protection for the Redskins term and logo. Elman's article outlines the history of original case, brought in 1992, and the ensuing court rulings. The U.S. Circuit Court of Appeals ultimately found that the original petitioners waited too long to make their claim.

In 1999, the Trademark Trial and Appeal Board found the use of the term to be disparaging to Native Americans and cancelled trademark protections for "Redskins." Pro Football, Inc., the legal entity that owns the team (Snyder & company owns Pro Football, Inc.), appealed to the US District Court for the District of Columbia which ruled that the evidence cited by the Trademark Appeals Board did not actually support their ruling. For example, there was no evidence that Pro Football, Inc. used the term in a disparaging manner. In fact, the district court found some evidence that the team took steps to avoid derogatory connotations.

The original petitioners appealed to the US Circuit Court, but their case was denied on the basis that it was too late to make their claim. The legal challenge was launched 25 years after the first use of the Redskins trademark. Since minors cannot bring an action until they reach adulthood, the new case was brought by plaintiffs aged 19 to 24 to get around the circuit court's ruling.

Elman then launches into an analysis of the legal basis of the claims with suggestions for overcoming the district court's ruling. The petitioners could argue the use of "redskins" is disparagement regardless of the intent of the Redskins team. Elman, who clearly hopes the petitioners win, implies the court erred in considering the team's intent at all. He speculates on formulating an "unbiased" survey of Native Americans as evidence to show disparagement.

That point escapes me. People and teams ought to be held liable for what they do, not simply for how other people feel about it. Action is in their control. Reaction is not. Elman's argument works if Native American's are the only group surveyed. Create a "unbiased" survey of Washington Redskins fans, who also have a stake in the outcome, and you will find that "Redskin" is hardly disparaging when referring to the NFL team. Diehard fans identify themselves as Redskins. That's a fact that ought to be considered by any court. Elman's point, and the petitioner's case, counts on the Trademark board and the courts ignoring that.

I am not insensitive to the slurs directed towards Native Americans in American history. But this is not a suit against America, it a suit against the Washington Redskins (and boy, am I glad that George P. Marshall isn't the one to defend this case!). The term "Washington Redskins" is not disparaging in its current use. (How the Redskins play in the Meadowlands is different. Somebody sue for that.) As for the logo, how can that be seen as disparagement when the United States government uses the same image on U.S. gold bullion coins.

To see both sides of this debate, see All of my heroes have been Redskins, and follow the links to a favorable view by The DC Universe and the opposing opinion by The Curly R.

Elman's full article on can be found here.

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