This morning, the United States Patent and Trademark Office cancelled the trademark registration of the Washington Redskins football team. In a hundred-and-seventy-seven-page decision, the Trademark Trial and Appeal Board (TTAB) found that six registrations for the term “Redskins,” obtained between 1966 and 1990, “must be cancelled because they were disparaging to Native Americans at the respective times they were registered.”
The team, owned by Daniel Snyder, will still be able to use the name Redskins, but now anyone and everyone will be able to use the team’s name, as well as logos incorporating the name. (Among the cancelled trademarks was “Redskinettes,” the name of the team’s cheerleading troupe.) The Redskins, through Bob Raskopf, the team’s trademark attorney, released an official statement saying that they will appeal the ruling. “We’ve seen this story before, and just like last time, today’s ruling will have no effect at all on the team’s ownership of and right to use the Redskins name and logo,” Raskopf wrote.
Any plaintiff who wishes to cancel a trademark must, under the law, have a “real interest” in the outcome. To that point, several Native Americans from tribes across the country testified that the term “Redskins” was offensive to them. The TTAB then determined the plaintiffs’ claim of disparagement through a two-step analysis:
a) What is the meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the goods and services identified in the registrations?
b) Is the meaning of the marks one that may disparage Native Americans?
This means that the TTAB had to determine that the word “Redskins” is, indeed, a reference to Native Americans, and that the term was an offensive one.
The proof outlined in the decision is, at times, almost comically self-evident: photos of the Washington football legends Doug Williams and John Riggins wearing the team’s helmets, emblazoned with a cartoonish depiction of a Native American; photos of the team’s band and fans in headdresses, and testimony from linguists on both sides who argued about whether the term was offensive, including this gem, from David K. Barnhart, an expert witness in lexicography who wrote on behalf of Pro-Football, Inc., which operates the team:
The experts arguing on behalf of Pro-Football, Inc. attempted to stick to this story: that “Redskin” is a descriptive term, but also that, if the term is, indeed, offensive, its offensiveness only started in recent years—after the trademark was registered, meaning that it was legitimate then and, by extension, now. To prove this point, they brought forth documents, including dictionary definitions written over the years, to show that “Redskins” was not recognized as offensive, and thus only became offensive in the intervening years. Here’s an example, from the written testimony of Ronald R. Butters, a linguistic expert for the respondent.
It hardly needs to be said that listing dictionary definitions to prove that an offensive term does not offend a marginalized group that had no say in the writing of the dictionary definition is the height of fallacy. (I am reminded of my debates as a high-school freshman, which almost always started with a grave and faithful reading from Webster’s; as Jeff Shesol wrote earlier this week, such dictionary deployments are also a favorite tool of Justice Scalia’s.)
Perhaps the only dispiriting aspect of what, on the whole, represents a landmark decision on behalf of Native American rights groups is that this debate needed to be had at all. As part of their appeal, the respondents argued that “Redskins,” as it referred to the football team, had been stripped of its associations with Native Americans—never mind the cartoon warrior on the team’s helmets and the headdresses worn by fans. Such disingenuous, purely linguistic claims have been used throughout history to justify all manner of terror; to argue that the name of the football team had shed its historical associations relies upon a terrible logic that says that, because a group of peoples has been, over centuries, killed, brutally dispossessed, and internally exiled—to the point that they are invisible to many of the residents of Washington, D.C.—their history should be trumped by the history of a football team.
“It’s chilling, because what they’re really talking about is the result of centuries of United States policy against native people and the historical precedent of genocide,” Jacqueline Keeler, one of the co-founders of the advocacy group Eradicating Offensive Native Mascotry, told me.
Keeler, a member of the Navajo and Yankton Sioux tribes, continued, “That argument speaks to the idea that people do not believe that Native Americans exist. In their experience, there are no Native Americans, so the only context you’ve ever heard that term is through football.”
Photograph by Larry French/Getty.
