Yesterday’s ruling by the Trademark Trial and Appeal Board on a suit challenging the right of the Washington Redskins football team to protect their trademark is being hailed as a turning point in the battle to force the team and its stubborn owner to give up the fight to keep the controversial name. An appeal of the 2-1 vote will probably take years to adjudicate and even if it is eventually upheld, the decision doesn’t force the National Football League team to stop using its name. Nor would it prevent the team from going to court to protect its rights or to sue counterfeiters since it could do so under common law rights that are not affected by the ruling. But the decision does create more pressure on Redskins owner Daniel Snyder to back down from his vow to retreat in the face of protests from Native Americans and prominent politicians (up to and including the president of the United States) who want him to switch to a moniker that is not generally understood to be a slur.
This controversy has become more a war of wills than a debate about the merit of Snyder’s claim that the term “redskins” is actually one that honors Native Americans rather than disparaging them. The main reason for that is that it is difficult, if not impossible, to argue that Snyder is right about the positive nature of the word “redskins.” Unlike other Indian-related names like “Braves” or “Chiefs” that are used by other professional sports teams, “Redskins” is not a word that one would naturally associate with honor, bravery, courage, or ferocity in battle. Snyder’s defense is pure baloney. Though for those who have no historical memory it is just the name of the Washington football team, redskins is an antiquated term of abuse that references the skin color of Native Americans. As such, it is the sort of label that is rightly consigned to the dustbin of history as Americans have discarded the routine racism that was once commonplace in our popular culture. Like President Obama, I, too, were I rich enough to be a team owner, would not want one with such a name.
The arguments about this have largely centered on whether Snyder has a leg to stand on when he denies Redskins is a slur. But the question of whether the resources of the federal government ought to be employed to aid those seeking to force Snyder to give it up is an entirely different one from that of whether the team’s critics are right about its unsavory nature. Thus, rather than stand his ground on the farcical notion that the name is neutral or a positive statement about Native Americans, Snyder’s best defense may be one that focuses on whether the government has any right to meddle with his business.
The legal grounds on which yesterday’s ruling was made centers on a provision of the Lanham Act which governs trademark protection that allows third parties who believe a copyrighted name is scandalous to the general public or disparaging to particular groups. Those Native Americans who joined in the challenge alleged that Redskins does exactly that and a majority of the board agreed with them. It is likely that most Americans, outside of Redskins fans who wish to preserve the 75-year-old name of their team, probably concur.
Even if their appeal fails the team could still defend its trademark against those who sell bootleg or counterfeit merchandise. But, as many observers have noted, the Redskins are marketing partners with all but one other NFL team (the Dallas Cowboys have their own separate deal); the ruling may generate pressure on Snyder to sell from his fellow owners and the NFL itself. Given that the president and most Democratic members of the U.S. Senate are now on record demanding a change, it’s not clear that even the obdurate Snyder has the intestinal fortitude to stick to his vow never to budge on it.
But while it is easy to argue that it would be appropriate for Snyder to bend to public opinion, the involvement in the government in this debate is a very different matter. Although Redskins critics seem to have the law on their side about the trademark, it is worth asking whether a strict enforcement of that standard about scandalous or disparaging names is possible or desirable. Though the language of the law appears to be clear, is anyone really comfortable with a situation in which an appointed panel sitting in Washington has the right to censor trademarked names in this manner? If “Redskins” doesn’t meet the panel’s smell test, surely many other trademarks which have their roots in the American past could also be challenged. Just as Snyder’s team is put in the dock in the court of public opinion, why wouldn’t the manufacturers of Aunt Jemima products also be put there since surely their Gone With the Wind-style logo, redolent of slavery and the most shameful chapters of American history, could be deemed offensive.
Snyder’s sentiments resonate with the fans of his team specifically because he is seeking to preserve not just his brand but also the memories of the team’s supporters. Though sports teams take on the character of the city or region in which they play and are treated as if they are public property, they are nothing of the kind. An NFL franchise is, in that sense, no different from any other business. If the fans of the most popular sport—at least in terms of television ratings and merchandise sales—are not troubled by the team name, it is difficult to see why the government ought to intervene. If, however, the culture changes to the point where even an NFL team must bow to public opinion, then that is something that the market will demonstrate. If Americans feared to wear a Redskins jersey lest they be branded as racists, then surely Snyder would have to give up.
Though I sympathize with those who would like the team name to change, forcing this issue via judicial action or legislation would involve the government in something that is none of their affair. It is the market that should dictate this decision, not our political elites. Americans need their government to protect their liberty, to provide for the common defense and to do those things that cannot otherwise be done for the general welfare of society. But it does not need a government to decide on the name of a football team.