Probably not. The test for disparagement has two elements: 1) whether the mark singles out an identifiable group; and 2) whether a substantial composite of the group would find the mark disparaging. That is to say, the mark doesn't just have to be offensive to someone somewhere, but rather it has to be perceived as disparaging by a substantial portion of the particular group singled out by the mark.
A good example of this is "Dykes on Bikes," a trademark that was allowed after evidence showing that lesbians did not find the term disparaging: http://en.wikipedia.org/wiki/Dykes_on_Bikes#Legal_battle_to_... ("The court found that men had no grounds to be offended by the term. McDermott stated his opposition against any group associated with the annual Dyke March, which he dubbed 'the Annual Illegal San Francisco Dyke Hate Riot' in which he and all men are subject to criminal attacks and civil right violations.")
In this particular case, although many native americans do not mind the term, a sizable portion find it to be akin to the n-word for african americans. Indeed, in the early 1990's a native american group brought cancellation proceedings for the trademark: http://en.wikipedia.org/wiki/Washington_Redskins_name_contro.... The USPTO canceled the registration then, but the decision was overturned on appeal for insufficient evidence of disparagement.
> The USPTO canceled the registration then, but the decision was overturned on appeal for insufficient evidence of disparagement.
That was the initial reason, but later appeals threw out the claim based on an earlier threshold issue, that the claims were barred by laches. The present case is a fairly direct follow-on with younger plaintiffs specifically to negate the laches defense.
> "The record establishes that, at a minimum, approximately thirty percent of Native Americans found the term REDSKINS used in connection with respondent’s services to be disparaging at all times including 1967, 1972, 1974, 1978 and 1990.
They don't appear to have any registered trademarks.
There have been several attempts to register marks with "nigger", "nigga", "niggaz", and similar, but they all seem to have been abandoned [1]. Most of these were for things related to music (e.g., music production companies) or for clothing.
[1] One exception. There is an application for "Figgas over Niggas" that is still on track.
Interestingly, the presumption appears to be positive in the statue absent the express carve out--which is essentially for "immorality" or "provocation".
U.S. Code › Title 15 › Chapter 22 › Subchapter I › § 1052
15 U.S. Code § 1052 - Trademarks registrable on principal register; concurrent registration
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—
(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute;...
I only skimmed the ruling, but it sounds like this was not simply because they used American Indian imagery. It specifically discusses previous rulings along the lines of what you're suggesting, and explains why they chose not to cancel the trademark in that case, and why that precedent is not applicable in this case.
Long story short, this isn't about simply using ethnic imagery. It's about using an out-and-out racial slur.
But that's a wrong-headed assumption. "Red-skin" is not a per-se slur, its a translation of a french phrase, and that was apparently derived from orginal native american usage. The latter referred to "white men" and "black men". Nobody is arguing that the native americans object to the french term "peau-rouge" ? or are they? Just curious on the data.
Well if we are going to play the PC game with trademarks may I suggest we start heading down the road of renaming all public schools that offend people; actually we are in places; renaming towns with offensive name, removing offensive slogans some towns may have, and so on and so on. Indian style names are quite abundant across this country and I am sure even some we think as inoffensive can be found otherwise if we ask the right people.
In the name of fairness we might just result to numeric designations.
I'm not sure how to feel on this one. I doubt my dad (an enrolled member of one of the plains tribes) will be pleased as the Redskins are his favorite NFL team.
If I was the Apache Foundation, I would be looking for another name.
Apache is not a derogatory name for an American Indian.
'"Redskin" is a term for Native Americans. Its connotations are a subject of debate,[1] although the term is defined in current dictionaries of American English as "usually offensive",[2] "disparaging",[3][4] "insulting",[5] and "taboo." [6]'
The decision is not based on the dictionary definition only, but based on the fact 1/3 of Native Americans have consistently (based on the evidence presented) thought the term to be offensive.
Oddly enough, one of the owners of the redskins was a racist. The washington redskins were the last team to integrate and their foundation was specifically forbidden to donate money towards integration causes. However, I think their team name was picked by the original owner, who named them the Boston Braves like the baseball team (now Atlanta Braves) who wanted the team to be like the New York Giants football/baseball (now S.F. Giants), but Boston fans were confused and they changed the name.
We always ask them how they feel about Andrew Jackson, you know the guy on the twenty dollar bill? I am very sure he is more offensive than the football team.
I assume we are only after sports teams because its easy to guilt the owners. Please have Cleveland get rid of their mascot
Cleveland's name is based on reference to the nickname for Joe Louis: http://en.wikipedia.org/wiki/Cleveland_Browns and the original owner wanted to name it after the coach Paul Brown.
I agree with the general tenor of this comment, but the idea that you need a "citation" is misplaced. The common practise of "scalping" was widespread (although not uniformly) and this is documented in various places. The speculation on the origin of what is essentially a slang word is speculative regarless of what side of the debate you want to argue--thus citation is irrelevant. Conversely, there was certainly an origin of the term, and lack of citation doesn't support the term never had an origin (correctly understood or otherwise).
A variation of "Red-skin" also appears in the French Language (something there is no data to support Native Americans would have objected to, presumably). Again, this is neither here nor there in that french speaking canadiens would have been in contact with all manner of native americans, including those among which 'scalping' took place (in terms of geographic an time period overlap etc).
editL
Just a cut-n-paste but might be helpful for some folks to baseline:
Redskin...had not emerged first in English or any European language. The English term, in fact, derived from Native American phrases involving the color red in combination with terms for flesh, skin, and man. These phrases were part of a racial vocabulary that Indians often used to designate themselves in opposition to others whom they (like the Europeans) called black, white, and so on.
But the language into which those terms for Indians were first translated <was French>. The tribes among whom the proto forms of redskin first appeared lived in the area of the upper Mississippi River called Illinois country. Their extensive contact with French-speaking colonists, before the French pulled out of North America, led to these phrases being translated, in the 1760s, more or less literally as peau-rouge and only then into English as redskin. It bears mentioning that many such translators were mixed-blood Indians.
So the original term in the west was "peau-rouge" and this can be see in various french-language citations if needed--including news reports. How and why this was used as slang in English is another question all together, and how or why it ended up as a mascot (like braves, warriors, spartans etc) another question again.
I've seen this brought up a few times for weeks now. If this movement wanting a football team name change doesn't approach Oklahoma about changing their racist name then I'll be really disappointed. They could at least request the University of Oklahoma to make the change.
I don't think a significant portion of Native Americans find "Oklahoma" to be racist. (based on a guess, not based on any studies)
The point of the ruling was a significant portions of Native Americans found "redskins" to be derogatory at the time the team chose the name all the way to today. I think people arguing today that "redskins" is offensive is based on the fact that a significant portion of Native Americans do think it is offensive today and not based on etymology alone.
I would have to say that's what the term meant in California during the mid-1800s as the person describes. The term could have easily meant something different to different people in a different section of the country. It could have been a negative description, a positive description, or just simply a description. Whether it be an accurate description or not.
Well, Apache is the name of a group of tribes and they might decide they want the website back.
And I take a bit of an offense at you telling me or my Dad what you think Redskin means versus what he grew up with and myself growing up on a reservation with the slang "skins" being used often and not in anyway like your dictionary definition probably written by someone who had never set foot on a reservation.
> Well, Apache is the name of a group of tribes and they might decide they want the website back.
They never had the website, and they can't get it back. And being the name of a group isn't the basis for the legal decision here, so that part is irrelevant, too.
> And I take a bit of an offense at you telling me or my Dad what you think Redskin means versus what he grew up with and myself growing up on a reservation with the slang "skins" being used often and not in anyway like your dictionary definition probably written by someone who had never set foot on a reservation.
The petitioners for cancellation of the trademarks in this case (and the previous one on the same marks) were all Native Americans, enrolled in tribes -- I'm not sure if anyone of them lived on reservations or not, but that's irrelevant to the legal standard anyhow. Further, the evidence presented in the case, and the legal standard, address whether the terms were disparaging to a substantial composite of the referenced group (Native Americans), not to some group irrelevant to that.
That doesn't mean that all Native Americans have to view the mark as disparaging for it to be cancelled, but it certainly does mean that the decision is not about whether other people, who aren't Native Americans, think the term is disparaging to Native Americans.
He didn't tell you what he thinks the word meant. He told you the definition as accepted by many dictionaries. Be careful not to take other peoples word and apply it through your own filter.
I cannot really put into words my reply other than I am rather put out someone would link a wikipedia article in this way. I really don't have the words anymore.
Maybe, but I've just seen a whole reservation take a vote on a name and be ignored by the NCAA. If you can honestly tell me that this came from the tribes and was voted on by their people, I'll believe it is an actual movement. Otherwise, its just more of the loud offended that don't really give a damn about.
You might want to look at this brief (and, in particular, see who the amici offering it are) in support of the plaintiffs' position in the preceding case raising the same issues (the present case is a rehash of that case, organized by the same group, with younger named plaintiffs to avoid the laches defense that ended up being a problem for the earlier case):
Amicus National Congress of American
Indians ("NCAI") was established in 1944 and is
the oldest and largest national intertribal
organization; it represents over 250 tribes, nations,
pueblos, and Alaska Native villages with a combined
enrollment of over 1.2 million.
Amici Cherokee Nation of Oklahoma,
Comanche Nation of Oklahoma, Oneida Indian
Tribe of Wisconsin, and Seminole Nation of
Oklahoma are federally recognized Indian tribes
that have adopted resolutions condemning the use of
Indian names and mascots by sports teams.
Um, it did come from a Native American group. Not that your opinion on whether or not something is an "actual movement" matters to anyone but yourself...
The plaintiffs are individual persons because of the standing issues related to disparagement claims), and ones just past the age of legal adulthood specifically to negate the laches defense raised in the immediately previous case on the same issue (the Harjo case, whose procedural history is discussed at length in the decision, and whose trial record was adopted wholesale in this case by mutual consent of the parties, because the substantive issues in this case are a subset of those in the Harjo case.
So, while its nice that you read the named plaintiffs, it would probably help if you read the document beyond the names of the parties to get a clear understanding of what is actually going on.
I'm pretty well aware of what's going on, hard not to be where I'm standing. I didn't see the support I would want to see, but I wouldn't expect it given earlier actions.
If they want to be offended maybe they should look at the crappy government health care (search: don't get sick after june), or the federal prosecutor who won't prosecute non-indians who steal on the reservation (even if the rez has video), look at the high unemployment rate after shutting down the defense contractor, or maybe take crimes against children with some seriousness. Being offended by names is way the heck down on the list.
Oh, excuse me, all of those are failures of government and we cannot acknowledge that.
The organized groups that have been involved in protest against disparaging use of Native American slurs or images by sports teams are often also (and often far more) concerned about other failures of government related to treatment of Native Americans (of course, government granted monopolies like registered trademarks are as much actions of government as prosecutorial decisions, so its inconsistent to label only the latter as a failure of government.)
I mean, one of the organized groups that started protesting and lobbying against these sports uses the earliest was AIM [1], who, whatever else one might say, certainly cannot fairly be described as not interested in addressing "failures of government" affecting Native Americans.
AIM isn't behind this and I'm not sure AIM is even a going concern these days after everything that the FBI did to them. It would be hard to actually live on a reservation and not know about AIM or its history.
AIM's history of involvement on this issue was among the pieces of evidence cited in the decision supporting the conclusion of fact that the marks at issue were disparaging to a substantial composite of Native Americans at the time registered.
> I'm not sure AIM is even a going concern these days after everything that the FBI did to them.
There clearly less active now than in the past, e.g., their most recent press release on their website is October 22, 2013 -- concerning the very issue here, interestingly enough.
No they don't. This challenge wasn't based on someone else having rights to the name, and nobody gets the "Redskins" trademark now that the team has lost it. No property (physical, intellectual, electronic, etc.) has changed hands, and this decision doesn't set precedent for that to happen in the future.
If the Apache group of tribes claimed that the word "Apache" was offensive, and managed to convince the USPTO that that was the case, maybe they could get the trademark rescinded, but that wouldn't mean they would get it for themselves, nor would it even mean the ASF would have to stop using the name, much less give up their website, only that they would no longer be able to sue other people for using it as well.
Even if the Apache Software Foundation were to lose the trademark on the right to exclusively use that word in the software industry, that does not mean they would necessarily need to give up the domain.
And bear in mind that trademark law does not aim to be a unique name registry. The trademark is issued in the context of the business. For example, the USPTO has trademarks registered for Apache helicopters and Apache skateboards, among others.
The cancellation of the Redskins' trademarks will not have an immediate impact. They will appeal, and be allowed to continue exclusively using the trademark in the meantime. But should the cancellation stand up, there will be nothing on the federal level to stop random schmoes from selling Redskins gear, with logos and all.
One could imagine this having the perverse result of the team becoming more popular temporarily as now there is a bunch of cheap merchandise. I don't think it will come to that but it is slightly more likely than it was yesterday.
They would potentially become more popular, but they wouldn't get the revenue from that popularity, because the knockoff vendors wouldn't pay for the rights to the Redskins IP. Since merchandise is a major revenue stream for sports teams, it seems unlikely, were it to come to that, that the team would tolerate it for too long; they wouldn't really have any choice but to change their name to something that could be trademarked to recover their merchandise revenue.
South Africa had much more land for the conquered, even during apartheid.
Israel has set aside massive amounts of land to its previous inhabitants.
Canada certainly has much more land set aside, though I expect it's equally marginal.
More generally...
Japan-SK
Japan-Taiwan
UK-India
Overall it seems rare for conquerers to commit a genocide and set aside marginal lands for the previous inhabitants. Usually it makes more economic sense to take the existing population and use political violence to extract labor and resources out of them.
Consider that the land that was set aside was often poor land that nobody else wanted. And then, to add insult to injury, the land would often be taken again if valuable natural resources were discovered.
It was overturned the first time because of laches, i.e. that the plaintiff had waited too long to bring the case. This time the plaintiff is someone who only recently turned 18, which negates the laches issue.
there are many native americans who support the use of this name. it honors them. it's perhaps the most "american" team in pro-football, next to their rivals, the cowboys. the name may genuinely offend some of native american origins. i doubt these folks happen to be fans of the team. not sure if that matters, just sayin.
edit: want to add i am totally in favor of renaming the team. it would be cool to keep the spirit..perhaps the "native americans"?
I personally find it strange that the accepted term is "Native American" considering some of the treatment by Americans of the past and the fact they didn't name their land "America".
> I personally find it strange that the accepted term is "Native American"
"Native American" isn't the accepted term so much as one of the more commonly accepted terms.
> considering some of the treatment by Americans of the past and the fact they didn't name their land "America".
Since Native Americans don't share a single pre-colonization language or name for the land, its not really surprising that one of the more broadly accepted blanket terms in English for the group is one that includes the name of the land in the English and a reference to Native Americans historical precedence in the land.
>
> ...we decide, based on the evidence properly before us, that
> these registrations must be cancelled because they were
> disparaging to Native Americans at the respective times
> they were registered, in violation of Section 2(a)
> of the Trademark Act of 1946, 15 U.S.C. § 1052(a).
>
Seems like this ruling may lead to more... there are a lot of trademarks in the US that some party somewhere will take offense to.