Several months ago, President Obama re-sparked a controversy about the use of the name “Redskins” by Washington’s NFL football team when he suggested that the team’s owner should consider changing their name. Recently a delegate from the American territory of American Samoa filed a bill in Congress to cancel any trademark registration with that term. Simultaneously, a cancellation proceeding is pending before the U.S. Trademark Trial and Appeal Board (“TTAB”) to terminate six (6) registrations that contain the term REDSKINS in the trademark on the grounds that the term is offensive to Native Americans. At least three (3) of these registrations were issued in 1974, one issued in 1978, and the earliest issued in 1967. The term REDSKINS has been used by the NFL since at least as early as 1932!
If either of these efforts prevail, the team may feel sufficient pressure to change their name. This is not the first time the team has faced this campaign. When they made it to the Super Bowl in 1992, Native Americans protested outside the Super Bowl venue in Minneapolis against the team’s use of the name and mascot. Around the same time, a trademark action to cancel various trademark registrations containing the term REDSKINS on the ground that the trademarks should not be registered because they are immoral, scandalous or offensive initially succeeded before the TTAB before being overturned by the U.S. District Court in D.C., in part, because the filing parties waited too long to raise their complaints.
Whether the term is controversial depends upon who you ask. While members of the Oneida Indian tribe believe it is offensive, many Washington fans view the name as a sign of toughness and strength. Regardless of these views, there is also a question of constitutionality: should a law be upheld that dictates the prohibition of the registration, not the use, of a term because it is viewed as offensive? By what standard is it deemed offensive? What if it becomes not offensive? The Trademark Office already provides a forum, i.e., a cancellation proceeding, to object to such registrations, which is currently being utilized by the objecting parties. The use of the federal government through attempted legislation seems heavy handed. Indeed, in the 1989 case of Texas v. Johnson, 491 US 397, Supreme Court Justice William Brennan stated, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” In this case, it appears to be a limited faction of society that contends the registration of REDSKINS is offensive. We shall soon see which view ends up holding sway.
Attorney Anna M. Vradenburgh counsels and represents clients facing trademark, copyright, patent and other intellectual property issues. To discuss your particular matter with Ms. Vradenburgh, please contact her at the Eclipse Group, located at 6345 Balboa Blvd, Suite 325, Encino, California 91316, by calling (818) 488-8146 or going to her website.