Government overreach in Redskins trademark case?
- 20 June 2014
On Wednesday the US Patent and Trademark Office cancelled six of the trademarks belonging to the Washington Redskins National Football League team, finding the team name offensive to Native Americans.
The ruling shouldn't be particularly shocking - the Patent Office had issued a similar decision in 1998 before being reversed on appeal - but the political environment surrounding the name has shifted considerably in the last 16 years. Proponents of a name change are heralding the latest decision as a possible turning point that will force team owner Daniel Snyder's hand.
"It's hard to view the new ruling as anything other than the beginning of the end of the name," writes Damon Darlin of the New York Times. "It has now been assailed not just by Native American groups but by the president of the United States and half the Senate, which ultimately controls the various tax and legal advantages the NFL enjoys. Players in football and many other sports are now routinely asked their view of the name, and their evident discomfort with it is rising."
That discomfort is reflected in the media as well, as the Seattle Times on Wednesday announced that it would no long print the team's nickname, which sports editor Don Shelton called "absurd, offensive and outdated".
The Times joins a growing list of media outlets that have made a similar decision, including the San Francisco Chronicle, the Orange County Register, the Oregonian and the Washington City Paper.
The Federalist's Robert Tracinski says that no matter how uncomfortable people may be with the Redskins name, the Patent Office shouldn't have become involved. The action, he writes, sets a terrifying precedent.
"The ruling was based on a dubious argument that 'redskins' is a slur against Native Americans," he writes. By that logic, he says, we should probably rename the state of Oklahoma (derived from the Choctaw Indian word for "red people") and the US Army Apache helicopter, named for a tribe the US military defeated.
What is and isn't offensive is subjective, he writes, which is why the government should have stayed away from the controversy and let market pressures sort it out.
Because the opponents of the name were failing in the court of public opinion, he says, they turned to one of their "favourite fallbacks": government bureaucracy.
"Bureaucrats in Washington are now empowered to make subjective decrees about what is offensive and what will be tolerated, based on pressure from a small clique of Washington insiders," he writes. "Anyone who runs afoul of these decrees, anyone branded as regressive and politically incorrect, is declared outside the protection of the federal government."
The Wall Street Journal's editors say this is all just another case of government employees following "liberal orders".
"The Obama Democrats now think government should dictate team mascots," they write.
For RedState blog's Erick Erickson, it's just another case of white guilt.
"The lesson here is that guilty-feeling white liberals are a threat to freedom and, in Barack Obama's America, the key to survive is to not appear on the radar of in Washington DC," he writes. "Once Washington's elite know of your existence and you do not behave like them, they will turn the power of government in your direction."
Tracinski's fellow Federalist writer Rachel Lu says the same logic applied to the Redskins could be used to do away with teams with other ethnic mascots, such as the University of Notre Dame "Fighting Irish", which she says invokes "ugly stereotypes about Irish alcoholism and a propensity for brawling".
To those who say the Irish people have embraced the name, she replies:
What percentage of Irish people have been consulted about the Notre Dame mascot? And even if they did approve, shall we permit the oppressed to approve their own degradation? Do not our own consciences tingle every time use "tradition" as an excuse for participating in such obvious and unapologetic bigotry?
The difference with Notre Dame, and other Irish-inspired mascots, writes Talking Points Memo's Josh Marshall, is that they are teams "historically associated" with the Irish-American community.
"Clearly context matters," he says. "History matters. Indians or Native Americans aren't just any group in American history. Their role is singular in something like the way African-Americans are."
While the Patent Office's decision may be symbolically important, it will have little real-world impact for now. Mr Synder's legal team has already announced it will appeal, so the ruling is on hold until then. And even the team eventually loses, it can still sue people or companies using the Redskins name for civil damages due to "trademark confusion".
Trademark registration offers additional legal protections, but losing it won't give counterfeiters free rein to start printing knockoff Redskins merchandise, for instance.
In other words, whether or not you agree that the Patent Office decision is a bad precedent, Tracinski is right about this: a Redskins name change likely will come down to public opinion and market forces.