Disclosure statement: My user ID on this site refers to my 320 years of Maryland/Washington, D.C. ancestry, some of which resulted in a "Heinz-57" admixture of ethnicities'/races' blood, including Native American and African American, coursing through my veins. Also, my family and I are Redskins season ticket holders.
In fairness, the appeal filed cites more reasons than you've chosen to share in your opening post. Among them:
- The District Court granted summary judgment repealing legal protection for the Redskins mark on the basis of that mark's having been offensive in 1967 when it was granted; however, in 1967, not one Native American objected to the mark or asserted that it offended them or their ethnic identity group.
- In 1967 and afterwards, numerous Native Americans expressed widespread support for the team, this without articulating an objection to the team's name.
- No Native American registered an objection on the grounds of the mark's being offensive to them until 25 years after it was registered.
- On two occasions, courts determined that laches existed with regard to Native Americans registering a complaint regarding the team's mark being disparaging.
- There is no precedent for the cancellation/revocation of a trademark.
- Cancelling a trademark on the grounds of offensiveness violates the First Amendment's protection of speech.
- The Redskins filed for and received trademark protection in 1967, and again in 1974, 1978 and 1990. Section 2a of the Lanham act, as codified in 1945, and still in force, bars registration of marks that "may disparage … persons, living or dead, institutions beliefs, or national symbols, or bring them into contempt, or disrepute." As part of the process for registering and obtaining protection for a mark, the Patent Office (PTO), absent prima facie evidence that a mark is unregistrable under Section 2, discloses the mark in the "Official Gazette."
Once the mark has been publicized, anyone who feels it disparages them may file a petition to that effect, bidding the PTO to cancel the mark's registration. The petition may do so at any time if they claim the disparagement pertains to Section 2a of Lanham. That said, U.S. common law (Trademark Trial and Appeal Board (TTAB) procedures; U.S. Code Section 1067) exists indicating that although one may petition at any time, the disparagement must have occurred at the time the the mark was registered, not some quantity of years later.
Now, having laid out more comprehensively the nature and extent of most of PFI's line of argument (there are a few others, but they seem to me, not being an attorney, in the main, procedural and thus beyond my ability to evaluate effectively), I have to agree that legally speaking, the mark "The Redskins" qualifies for and should retain its trademark protection. Whether it also deserves social opprobrium is a different matter, one that has nothing to do with what it deserves in law.
Practically speaking, I don't care what the Washington football team's name is. Economically, I think changing the name would be quite expensive, and to that end, I'd prefer not to have to bear some share of that cost. Season tickets, concessions, etc. are dear enough as it is; I am surely not the only one who wants not to have another cause for them to more rapidly and sooner cost more. Emotionally, I'd just as soon it remain as it is, but if it changed, nothing about how I feel about the "former Redskins" would change.
My First Amendment Thoughts on the Matter:
Whereas the former points are merely facts, this claim is one that requires a judgment call, and to that end, I have to agree with PFI (the Redskins owner). As much as I find more than a few terms and phrases offensive, some of which are detailed in the brief, terms I consider unworthy of the public's approbation, I yet agree that they are protected forms of expression, regardless of the intent their "speaker" held when using them.
In my mind, there are no bad words, only bad intentions. Therefore, legally speaking, offensive or not, a private entity/person is entitled to trademark protection of his ostensibly offensive brand name, moniker, or slogan. Seeing as PFI is a business, the burden lies with consumers of PFI's product to show their opprobrium via their wallets. If/when it becomes economically imprudent to continue to use the trademark, namely the term "Redskins," PFI will, in order to remain a going concern, desist from using it.
My Thoughts Re: Subjecting "The Redskins" (as a mark, and along with other words) to Obloquy:
I without exception agree that folks offended by the use of "The Redskins" as a team brand and name have every right to deny their support of all forms to the team. Indeed, I believe that if they feel that way, they should do exactly that, perhaps even encourage other to do the same. I'm fine with their taking either or both actions.
The thing that gets me is that although there is much outcry about PFI's mark and use of it, we as a society seem to have little to no desire to censure those who routinely use what are the two most often uttered, thought and heard derisive epithets in the American vernacular: the "N-word" and the "F-word." So comfortable have we become with the first of those terms that the "a-ending" variation of it has become the name of a popular music group.
Clear diction or not, I don't care for the sentiment the "N-word" embodies. That word arose as the penultimate aspersion of disdain, derision, repudiation, and reprobation one could direct at others, regardless of their race. For that reason I don't feel it is appropriate to use in "polite society." My personal feeling on the matter notwithstanding, I must accord folks the right to use those words in speech and writing.
The thing is that be it 1945, 1967, 1978, or later, one would have no trouble showing that, were a trademark filing made using the "N-word," the term is offensive to many. I am hard pressed to make the same claim re: the term "The Redskins." Truly, not once in my life (56 years) have I heard or seen the word "redskin" used derogatorily. I realize my personal experiences don't coincide with the reality millions have faced, so perhaps as goes my having been blessed to have never heard the term used to disparage someone is just that, a fortunate and serendipitous circumstance.
Really, I don't think the outcry against "The Redskins" is much beyond something onto and about which folks can latch and gripe. I don't see a whole lot of cause to now, after the team's having been supported since 1933 by Native American and others, to make a stink about the team's name. Were it clear to me that people from 1933 onward continuously and consistently deplored "redskin," I'd say at a minimum social ignominy be an onus we all owe in respect of our Native American brethren.
For now, however, my position is that when I observe Americans fulminate over using the "N-word" and the "F-word" to the extent that it becomes effectively extinct in plebeian vernacular, I will advocate for (or support) amending Lanham and/or the TTAB Section 1067 stipulations and guidelines. If one or more individuals move now or later, regardless of the extance of the "N" and "F" words, to amend that section of the code so that it can apply not only at the time of a mark's registration but also afterwards, I have no objection to their doing so.
