Dan Graziano is a sports writer who, like David Elfin, I respect for his football coverage. Like Elfin, Graziano wrote an anti-redskin piece on the ESPN NFL East Blog yesterday. I agree with Graziano's premise that public opinion is irrelevant in the decision to keep the Washington Redskins team name.
But, Hog Heaven thinks Graziano is right for the wrong reason.
Graziano says "the word 'Redskin' has a well-deserved established history as a racist epithet," without citing any evidence of such. He poo-poos expert testimony that such a history is not at all established.
(We wrote a few days ago about the legal risk to writers who use the brand Redskins [Capital R, plural] to be a word, redskin, that they say is a slur.)
But worse, Graziano posits that if any word is used at any time by anyone to disparage a people, then it should never be used as a trademark. Hmm.
The Redskins have the law on their side. Public opinion, like Graziano's, does not matter.
Hog Heaven is not the only one who says so. The U.S. District Court says so.
U.S. District Judge Colleen Kollar-Kotelly wrote in her 2003 ruling of that "perceptions of the general public are irrelevant to determining if the [trade]marks are disparaging to Native Americans." What matters under the law is whether the Washington Redskins used the trademark to disparage Native Americans as they built their brand.
Judge Kollar-Kotelly reversed the decision of the Trademark Trial and Appeal Board (TTAB) to cancel trademark rights to "The Redskins" because the TTAB's findings were insufficient to sustain a legal ruling of disparagement.
To be fair, the judge tossed the Board's ruling because it was sloppy. She did not rule on the actual merits of a matter she saw as an effort to raise larger social issues. But, two points in the ruling struck me.
Never was heard a disparaging word
First, the TTAB could not and did decide which of the linguistic experts presented by the Suzann Harjo party and by the Washington Redskins was the more valid. Instead, they looked at other stuff. The Board essentially looked at the dictionary definition of "redskin" and ruled that the word might be disparaging, so the trademark must be reversed.
That's the logic behind Graziano's argument.
If experts cannot agree on the history and use of the word, then redskin is not unquestionably, obviously and indisputably a slur.
Second, the Board itself concluded that the word redskin was extinct by the mid-Twentieth Century.
As the judge put it "From the 1960s to the present day the word 'redskin(s)' dropped out of written and most spoken language as a reference to Native Americans." The Redskins registered their trademark in 1967.
That mirrors my life experience, and I suspect your own, of never hearing, reading or using Redskins to mean anything but the NFL team and other sports teams that patterned themselves after them.
Harjo and company filed a new case before the TTAB this year with a new set of plaintiffs whose age may allow them to defeat Kollar-Kotelly's ruling that the last set waited too long to challenge the registration.
I am not lawyer enough to know if that will work. The reason the law requires challenges to be made early (five years, I think) is to allow trademark holders to change the brand and avoid investment in a mark they later cannot use.
The Redskins are 80-years old. They invested millions to promote their brand "The Redskins." They have been so successful that Redskins has been redefined as a football team, and only as a football team, until Harjo made a federal case of it..
The Redskins were so successful that writers like Graziano routinely defame the brand (capital R, plural) when writing about the spurious word.
The legal standard to overturn trademark protections is supposed to be stringent.
The new case is a Mulligan to the TTAB. Their last ruling was sloppy. Their next ruling, whatever it is, will surely be appealed to the District Court. Thus, it will have to be legally sound and not just politically correct to pass muster.
Where polls do have a place
Opinion polls have no place in matters of law, but they make sense in business. Daniel Snyder has paying customers to please. Their opinions carry weight. Opinions of opponents of the Redskins brand do not because, one suspects, they don't buy Redskins stuff anyway.
Daniel Snyder will make a change if there is a business case to do so – if Redskins fans, the people who spend money, stop buying Redskins stuff because it says "Redskins."
The ultimate decision rests with we fans.
To read the full text of Judge Kollar-Kotelly's ruling, all 74 pages of it in full-scale legalese, point your clicker here.
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Suzann Harjo ignited a fight about the brand that has yet to morph into the larger social issues she want to talk about, that have nothing to do with the Washington Redskins football team.
I do not believe Harjo will win her legal case. I do not believe the effort will translate into discussions about the 19th-Century actions of the U.S. Government on behalf of the American people against Native Americans and the long-term implications for the descendants of those people.
The Washington Redskins did not exist when those events occured. They cannot fix them. Forcing the Redskins to change the brand lets everbody get back to ignoring those issues again. Just sayin'.
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