Washington-Redskins.png

Let the Redskins Play On

 A recent Wall Street Journal story reports that there is yet another threat to the use of the name “Redskins” by the NFL franchise in Washington D.C — this one with a legal angle.

Because, as the Journal notes, “the U.S. government may refuse to register a trademark that disparages a ‘substantial composite’ of a group,” a challenge is being launched to the Redskins trademark of their name on the grounds that it is offensive to “five Native Americans of different tribes.” The choice of the phrase “Native American” is far from accidental, because it indicates how this term has displaced “Indian,” which is still used to describe the the professional baseball franchise in Cleveland.

Historically, challenges like the one currently being levied against the Redskins had to rest on the ground that the term “disparages” the member of any “substantial composite” of a group. In the case of the Redskins, previous challenges along these lines have failed partially on the prosaic grounds that the term wasn’t considered derogatory when the mark was first registered. As a matter of general legal theory, however, two issues are present.

First, it does not seem plausible to think that the Washington Redskins use the term to disparage the group to which they refer. Teams wish to develop positive identities for themselves, so this case is far from an ordinary case of disparagement, where the term in question is used against members of another group whom the speaker wishes to ridicule or abuse. The possibility that the Redskins organization would continue to use a term that antagonizes its own fan base is not credible. The simple fact that the term continues to be used to promote a team, its players, and its merchandise indicates that, to the vast portion of the public, the connotations of the name are positive, indicating strength, determination, and skill in football as in battle. If it were otherwise, the use of the brand would shut down entirely under the strain of market pressures.

The hard question in cases of this sort is whether certain individuals should have a veto right over the use of a term that has general popular acceptance. This question has also arisen in the context of defamation law, where it is often asked whether a term is defamatory when it is understood positively by some people but negatively by others . One nice illustration of this problem is the 1902 case of Roberson v. The Rochester Folding Box Company, where the question was whether the plaintiff had an action when the defendant company used the plaintiff’s picture for promotional purposes for Franklin Mills Flour Company, over the words “Flour of the Family.”

The two interpretations of these words shows the difficulty of finding the right context. On one hand, it could be noted that this case was a violation of the right of privacy insofar as the defendant used the plaintiff’s name and likeness for its own advantage. Today, this invasion of privacy goes under the name the “right of publicity,” indicating that the plaintiff is entitled to get revenue from the use of her name or likeness for the advertisement purposes of others, which was surely the case here. Under that view, the plaintiff is all too eager for her picture to be used far and wide, but wants to capitalize on its asset value. The Redskins are doing just that with their name, but they owe no money to anyone because they are are not using an individual, or even group, name or likeness. In this context, the claim could only be that some tribe has exclusive use for the name, so that the team owes that group royalties for past use. But that argument will not work. Today, the term “Redskin” just falls into the public domain, so that it is doubtful that any private party could claim royalties for its use, even if obvious objections (like the statute of limitations) are waived.

If we conceive of the Redskins case as a defamation-type action, there could be at most nominal damages — but only if there were some specific person or group to whom the statement referred. The defamation framework simply does not work here because the trademark law requires a showing of particularized harm. 

That leaves us with disparagement. But who is disparaged here? The question boils down to whether the resentment of some persons to the use of the “Redskins” name creates a veto right that prevents all other persons from using it. In my view, that is just too much too ask of the trademark system. The objectors may attempt to rally public opinion to their caues, or otherwise persuade the users of the name to abandon it (as happened when Stanford University changed its nickname from the Indians to the Cardinal). In general, however, the presumption should be against the use of state coercion on matters of speech. The selective and intense offense of some individuals, even in good faith, is not enough to displace that original presumption. Veto rights of the few over the many should not be freely dispensed.

  1. KingsKnight1

    The legal questions are all very interesting but I have a bigger one. Have these people nothing better to do?

  2. Pat in Obamaland

    Wonderful explanation, Professor Epstein. In case you are looking to develop the topic further in a Defining Ideas, I just want to make sure you refer to Stanford as the Cardinal rather than the Cardinals. I have found Stanford alumni to be very picky on this topic and I wouldn’t want you to make the mistake when writing for Hoover.

  3. Mike K

    I have suggested the alternative name, “Washington Weasels,” should they lose the suit.  Seems appropriate.

  4. The name is going down, it’s just a question of when. 

    That said, ESPN’s Tony Kornheiser has been pitching this idea for years: keep the name and change the logo to a red potato. Problem solved. 

  5. Tommy De Seno
    C

    Change the name to the Washington Palefaces. 

    If someone who was looking to represent athleticism, grace, sportsmanship, excellence and teamwork decided the color of my skin is the best exemplar, I’d be honored.

  6. outstripp

    Someone, cleverer than me, suggested the Washington Red Inks. Notice that it’s almost Skins shuffled.

  7. Brian Watt

    Other offensive names:

    Stanford Cardinal – Offensive to Catholics

    Cleveland Browns – We know what this really means

    Milwaukee Bucks – …where is the outrage?

    Cincinatti Bengals – Offensive to the Bengalese

    Green Bay Packers – Glorifies meat packing – offensive to animal rights advocates

    Chicago Blackhawks – Trivializes the proud Blackhawk nation who never had a hockey team of record

    Chicago White Sox – Offensive to the Boston Red Sox

    Boston Red Sox – Offensive to the Chicago White Sox

    Miami Heat – Trivializes Global Warming

    Notre Dame Fighting Irish – Stereotypes the Irish as pugnacious (well…)

    Texas Longhorns – Offensive to Texas Shorthorns

    Utah Jazz – Since when has any decent jazz come from Utah? 

    New Orleans Saints – Demeans the concept of sainthood

    San Diego Padres – Demeans the priesthood

    Toronto Raptors – Trivializes rap artists (oh, wait…rap artists may be an oxymoron…I just offended rap artists…Ack!). 

    Tampa Bay Buccaneers – veiled promotion of online piracy and copyright infringement

    Minnesota Vikings – Trivializes Norsemen, Norsewomen and Norsekids

    Kansas City Chiefs – How is this being overlooked?

    Oakland Raiders – Just offensive in general but particularly to people who have lost one eye

    Boston Celtics – Offensive to the Celts – especially since it’s not even pronounced correctly!

    LA Kings – Offensive to those of royal blood

  8. Tommy De Seno
    C

    I agree Brian Watt.   I’ve never been upset when they’ve named teams after really awful white guys like Vikings and Pirates.

  9. Mike K

    Dartmouth has renamed its teams, “The big Green” so as not to offend the Indians for whom  the college was founded in 1769. I’m offended but I’m a white guy.

  10. FightinInPhilly

    I have two thoughts on this. The first (snarky) is that they should change the name and then change it back one week later. When there are complaints, Snyder can point to Washington’s long and proud history of changing deals.

    The second is more serious, and will naturally never happen. Snyder should announce that while he won’t change the name, he will fund scholarships for Native American students, literacy programs, anti poverty programs on reservations, and preservation of languages, oral traditions and history of the dozen’s of tribes in the US. 

    While Bob Costas and his ilk want to change the name to make themselves  feel better, they won’t actually change a single thing in the lives of people. Our justified distaste for headline grabbing idiots shouldn’t cause us to overlook a real problem.

    (note I said Snyder, not govt assistance, for those of you who worry I might be advocating yet another federal program).

  11. Joseph Paquette

    I heard the Redskins wanted to drop the “Washington”, as that was hurting their image.

  12. Foxfier
    Richard Epstein:  

    Because, as the Journal notes, “the U.S. government may refuse to register a trademark that disparages a ‘substantial composite’ of a group,” a challenge is being launched to the Redskins trademark of their name on the grounds that it is offensive to “five Native Americans of different tribes.”

    Betcha I can find a solid five dozen Hibernian Americans of different clans that find Notra Dame’s use of “Fighting Irish” to be offensive.

    Twice as many if they’ve been playing badly. 

  13. Foxfier
    Brian Watt

    Notre Dame Fighting Irish – Stereotypes the Irish as pugnacious (well…)

    If truth was a defense, wouldn’t “Redskins” be perfectly OK?  It’s as accurate as calling Polkadot Americans “white.”

  14. Despair Troll
    Brian Watt:

    Green Bay Packers – Glorifies meat packing – offensive to animal rights advocates

    Meat packing… hehe…

  15. Despair Troll

     

    KingsKnight1: The legal questions are all very interesting but I have a bigger one. Have these people nothing better to do? · 2 hours ago

    Personally, I think they’re Giants fans.  So from that perspective, it’s an excellent use of resources.

  16. Tommy De Seno
    C

    The moment we take Indian symbolism out the mainstream we will be accused of trying to stamp out their culture completely, and we will be shamed into putting it all back.

  17. Paul Dougherty

    They should change the name to “Indians”, and keep the logo. That way, twice a year there would be Cowboys vs Indians.  Another thought would be for the team to change to the Washington Singularities.

    Definition from Merriam Webster Online:

    4:  a point or region of infinite mass density at which space and time are infinitely distorted by gravitational forces and which is held to be the final state of matter falling into a black hole

    Kind of apt.

  18. EThompson
    Brian Watt: Other offensive names…

    Let’s not even venture into the complaints PETA might have re: Tigers, Lions, Timberwolves, Panthers, Bruins, Bears, Wolverines, et. al.

  19. Amy Schley

    I think it was one of Instapundit’s commentators that suggested leaving the team the “Washington Redskins” but changing the mascot to a potato.

  20. CuriousKevmo

    And “49ers” represents greedy horrible business people that are avoiding the Obamacare mandates.

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