Have you ever noticed how much the Redskin’s logo looks like the Indian head nickel? The man on the coin looks battle-hardened, stoic and not for sale. The irony is that the image is on a nickel.  That Indian is totally monetized.

Trademark Action

The current dispute is not about the image, but the name, “Washington Redskins.” On June 18, 2014, the U.S. Patent & Trademark Office cancelled six trademark registrations held by the team, ruling that the term “Redskins” was disparaging to “a substantial composite” of Native Americans when the marks were granted between 1967 and 1990. The team could appeal. It does not have to change its name. It will continue to have common law trademark protection, established on the basis of long use, but the name has certainly lost value.

Changing Language

Is it disparaging? It depends on who you ask. To be perfectly fair, an argument could be made that the team has been caught in the crossfire of changing sensitivities about the way we talk about race. The franchise has used the name Redskins (originally the Boston Redskins) since 1933. That is a long time to build a brand, but brand and good will do not always go hand-in-hand. The team also has a long difficult history on race.  On October 31, 1960, in the Washington Post, the great sports writer Shirley Povich made clear his disgust at the Redskins’ failure to integrate,

For 18 minutes the Redskins were enjoying equal rights with the Cleveland Browns yesterday, in the sense that there was no score in the contest. Then it suddenly became unequal in favor of the Browns, who brought along Jim Brown, their rugged colored fullback from Syracuse.

From 25 yards out, Brown was served the ball by Milt Plum on a pitch-out and he integrated the Redskins’ goal line with more than deliberate speed, perhaps exceeding the famous Supreme Court decree. Brown fled the 25 yards like a man in an uncommon hurry and the Redskins’ goal line, at least, became interracial.

It’s great writing and enlightened thinking, but that word “colored,” jumps screamingly off the page. The Post, which has lobbied fiercely for Redskin name change, might not publish Povich’s column today. There is apparently no bottom to this pit of irony. The point is, however, that even had the USPTO not taken action to cancel the trademarks, the brand has been damaged by changing language and mores.

The Long Grind of Time

This dispute has been around in one form or another since 1992. The USPTO cancelled Redskins trademarks before, in 1999. The Redskins appealed then, and the court ruled that the petitioners’ right to complain had expired under an equitable doctrine known as “laches.” Many people are familiar with the related concept of a statute of limitations. Basically, it means that people who have been injured have to complain within a set period of time. The clock does not begin to run, however, until a petitioner reaches the age of majority. The latest iteration of this legal action involves 18-year-old petitioners who, because of their age, had not previously been able to sue. Now they may. The action is not time-barred. It’s a clever legal move. It’s hard to say the same of the way the Redskins used 22 years of notice to deal with problem.

Beyond Intellectual Property

This issue has resonance far beyond intellectual property rights. It has a lot to do with the profile on the nickel. The Indian head nickel was minted between 1913 and 1938, not coincidentally overlapping the early years of Redskin history. For long thereafter Americans of Northern European heritage adopted a romanticized view of the native people we had very nearly exterminated. Today, in the twenty-first century, we would no longer encourage children to play cowboys and Indians, any more than we would Christians and Muslims or cannibals and missionaries. The parts of our history that deal with racial, religious and cultural conflict are simply too complicated to be monetized, especially for sports and entertainment.

Anne Wallace, Esq.

By

Anne Wallace is a New York lawyer who writes extensively on legal and business issues. She also teaches law and business writing at the college and professional level. Anne graduated from Fordham Law School and Wellesley College.

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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