Racial slurs and football team names: What does trademark law say?

Christine Haight Farley from the American University Washington College of Law says in the Washington football team name dispute, trademark law might play a small, but important role, in the controversy.

800px-Redskins_vs_Giants_line_of_scrimmage_throwbacksPerhaps like many of you, family conversations around my dinner table have recently included the issue over the Washington area professional football team’s name.  I have two sons who unsurprisingly support their local football team.  Perhaps more surprisingly, my boys are also, it seems, fierce supporters of the First Amendment.  So our conversations on this topic have more resembled a debate.  The fact that I’m a trademark law professor has failed to intimidate them.

I can’t credit my boys with advancing any novel arguments in favor of the Washington football team keeping its name, but I will give them credit for covering all the major lines of argumentation.

They accuse me of being hypersensitive on behalf of a group of people I do not represent.  They wonder whether a majority of Native Americans are in fact opposed to the name.  They argue that the team name, after such long-standing use in connection with football, has come to refer only to the football team, and is no longer remembered as a racial slur.  And finally, they make the slippery slope argument.  They ask whether I will next oppose the Braves and the Chiefs.  And they wonder how I can distinguish the fighting Irish with its aggressive leprechaun mascot.

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 countries’ 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, linguists’ 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.

Trademark law and offensive speech

Many are surprised to learn that trademark law has anything to do with the regulation of offensive speech.  But would we want the government to devote resources to protecting offensive marks? And should the government provide official sanction and significant legal benefits to offensive marks?

My sons’ concern over censorship is misplaced. This section of the trademark law only bans the registration of marks; not the use of marks. Trademarks deemed too offensive and denied registration are still legal to use in the marketplace and may even be subject to some trademark protections.

So should the Native Americans be victorious in their case against the football team, the legal result would be that the registration of the trademark would be canceled, but the team would continue to use their trademark in commerce without interference. Trademark law is therefore a very limited regulation of offensive speech.

My sons are, however, justified in their concern that these trademark decisions could potentially amount to subjective determinations.  With differing levels of sensitivity across the public, what is the appropriate standard to be used in these cases?

The law is in fact sensible and straightforward.  First, one must determine the likely meaning of the trademark taking into account not only the dictionary definition, but also any figurative elements of the trademark, the nature of the goods or services associated with the trademark, and the manner in which the trademark is used in the marketplace.  Second, there should be evidence that it is more likely than not that the meaning of the trademark is disparaging to a substantial composite of the referenced group.

The term used by the Washington football team has been demonstrated by overwhelming linguistic and historical evidence to constitute a disparaging epithet insulting to Native Americans.  Many Native American organizations, including the National Congress of American Indians, the National Indian Education Association, the Native American Journalists Association, the Native American Rights Fund, the Morning Star Institute, the International Indian Treaty Council, and the National Indian Youth Council, have publicly and vociferously opposed the continued use of the term in trademarks or as the name of sports teams.  The director of the Smithsonian National Museum of the American Indian has said he considers that name to be the most offensive name in current use.  The trademark office tribunal was satisfied by survey evidence that showed that 37 percent of the Native Americans surveyed found the word the team uses as their name to be offensive.

A fight over a football team’s name

Of all of the offensive trademarks that have been considered by the trademark office and the courts, none has captured the attention of the media and the public as much as the Washington football team name.  Ironically, of all of the offensive trademarks, this one is also the most well-known and possibly perceived as the most innocuous by the general public.  My boys have grown up in a city of people who regularly wear shirts emblazoned with the word.  I would not be surprised if they have also come to overlook the fact that the Native American head on those shirts depicts a race of people.

The district court faulted the survey evidence for not connecting the word to the team use.  The apparent theory is that a racial epithet could somehow become acceptable when applied to football merchandise. The football team has argued that their use of the name has only been a positive use.  Football, soda, or cigarettes, positive, neutral or negative, this is an unnecessary evidentiary hurdle.  Any commercial use of a racial epithet will disparage the referenced group.

Many have wondered whether the commercial use of an epithet denoting another race would be as difficult to challenge.  Would, for instance, a trademarks referring to the skin of an African or an Asian person be acceptable?  Embarrassingly, Americans have for too long accepted racist stereotypes of Native Americans.  Especially in sports, where universities and high schools often have used Native American nicknames and mascots. But these regretful practices are largely disappearing now.  Recent psychological evidence has demonstrated the general negative effects associated with any references in sports to Native American people.

For decades Native Americans have fought to protect themselves from the public humiliation and discrimination associated with racial slurs such as the Washington football team name.  The use of the word is hurtful and insulting to our nation’s first inhabitants and their descendants.  Racist trademarks tear at the fabric of society by promoting negative stereotypes of minority groups. There is a strong public interest in eliminating damaging stereotypes and stigmatization.  The social costs to the public at large are huge and include reinforcing hateful and erroneous stereotypes and misinformation about our fellow citizens.  The psychological harms of such racialized representations impact not only the referenced group but also society as a whole.   The public acceptance of hateful language against one group suggests tolerance of other hateful language and treatment toward other groups.

In these larger issues of racial identity, civility, and community, obviously trademark law plays a very minor role.  But as some of these disputes, such as the Washington football team name dispute, demonstrate, on occasion this small role can be an important one.

I will give my boys two minutes of rebuttal, after they clear the table.

Christine Haight Farley is a professor at American University Washington College of Law.

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