It's not about PC.
At their essence these arguments amount to a fear that political correctness will go too far. But I am not a member of the political correctness brigade. I am a professor trademark law. And trademark law has established rules to address this issue.
Since 1905 federal trademark law has banned the registration of scandalous or immoral marks. In 1947, marks that may disparage, bring into contempt or disrepute persons, institutions, beliefs, or national symbols were also banned. U.S. trademark law is not unique in prohibiting the registration of offensive trademarks. Many other countriesÂ’ trademark laws contain similar provisions.
A trademark case is currently pending over the Washington football team name. A group of seven Native Americans first challenged the trademark in 1992. The plaintiffs presented the trademark office tribunal with evidence of dictionary definitions, linguistsÂ’ expert opinions, and the results of a survey all showing the trademark to be disparaging of Native Americans. In 1999, the tribunal agreed that the registrations should be cancelled.
But on appeal, a federal court found that the Native Americans failed to present sufficient evidence that a substantial composite of Native Americans regard the term Redskins as disparaging when used as a trademark by the football team because the survey asked about the term in the abstract.
The court also found that the Native American plaintiffs had unjustifiably delayed in bringing the action since the trademark had already been registered 25 years by the time of the lawsuit (the trademarks in question were registered between 1967 and 1990).
After that loss, a new group of younger Native Americans brought a second challenge. Since one cannot be held to have delayed in bringing a legal claim before the age of 18, this group of young adults appear to have overcome any criticism of delay in the new lawsuit by bringing their claims as soon as they could. We await a new ruling, which should be announced imminently.
Racial slurs and football team names: What does trademark law say?
The team can still be the Redskins. But there may be financial repercussions because the team may not be able to use federal law to keep other people from using a racial slur for profit as well.