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.