Intellectual property experts say that the U.S. Patent and Trademark Office's recent decision to cancel the Washington Redskin's registered trademarks on the grounds that it degrades Native Americans, could eventually lead to the demise of the football team's name.
Just months after the move was announced in June, experts at the University of Maryland Francis King Carey School of Law discussed what economic consequences the decision could have for the US$9 billion a year NFL business.
It's not the first time the team faces legal heat over its questionable name. In 1992, American Indian rights leader Suzan Shown Harjo and a group of older Native American activists succeeded in revoking the team's trademark based on the claim that the name was disparaging to native peoples. But that decision was appealed based on a detail in trademark law cases that requires complaints to be filed soon after a plaintiff experiences the affects of an injury (usually soon after he or she turns 18).
The more recent lawsuit was filed in 2006 by a younger group of American Indians led by social worker and Navajo Nation member Amanda Blackhorse, who filed on the same grounds and won. In June, the U.S. Patent and Trademark Office (USPTO), which doesn't allow for the registration of disparaging or derogatory trademarks, canceled the team's trademark registration once again. According to court papers, the team's owners argued against the allegations, responding that the term was not offensive in 1933 when the trademark was registered. While the USPTO does not force a name change, it could make it more difficult for the team to sue entities that use the team name on merchandise without its permission.
According to University of Maryland law professor James Grimmelmann, the USPTO decision won't take money directly out of team owners' pockets. But the public's approval, at some point, will.
“When it's just a few people protesting, your ordinary fan doesn't feel this directly affects them. But it's starting to tip over to the point where people aren't able to say, ‘oh, this is just a small matter.’ You have to actually confront the fact that using the name is highly offensive to people,” said Grimmelmann.
According the Forbes’ “The Business of Football List,” the Washington Redskins is the third highest valued team of the NFL. At US$2.4 billion, the team is topped only by the Dallas Cowboys and New England Patriots. Merchandising and trademarks licensing are two of the top five sources of wealth generation for the NFL. In 2010, the NFL reported US$2.1 billion in merchandise. But according to Grimmelmann, it's not as simple as cutting off the team's ability to control merchandise. Negative news coverage creates uncertainty and deligitimizes the team's use of its own name.
“The constant message you get when this is in the headlines is that there's something offensive in the name and people should be ashamed when they use it. It helps keep the story in the news and it's just a drag on everything the team does in the public sphere,” said Grimmelmann.
Public support and reactions have varied both inside and outside of the football world. In August 2014, The Washington Post announced it would no longer use the term in any of its editorials. And just a few months ago, longtime referee Mike Carey — the first African American referee to work a Super Bowl — revealed his years long silent boycott of Washington games.
“It just became clear to me that to be in the middle of the field, where something disrespectful is happening, was probably not the best thing for me,” Carey said.
But the team's owners say they won't give up. In a May 2013 interview with USA Today Sports, owner Dan Snyder said, "We'll never change the name. It's that simple. NEVER — you can use caps."
He later told ESPN that the name represents honor, pride, and respect. Snyder's supporters and other critics of the #ChangetheMascot campaign argue that most Native Americans don't mind the name, often pointing to data from a 2004 National Pennsylvania Annenburg Election Survey that found 90 percent of self-identified American Indians did not find the team name offensive. But supporters point out that a lack of consensus isn't reason enough to continue to use a term that dictionaries define as a racial slur.
Eighteen years after the legal battles initially began, Harjo argues that the name has a harmful psychological impact on native communities, especially youth, whose identity and self-esteem is cut short by historically insensitive branding and imagery.
“The use of that name harkens back to a time when we were actually skinned by bounty hunters who turned in our skins for payment. So, you had companies, colonies and states that issued bounty proclamations for dead Indians. And what were presented as proof of Indian kill were the bloody reds*ins,” she wrote in an op-ed on the subject.
Similarly, Director of the National Museum of the American Indian Kevin Gover has also commented that the majority of reactions to the name dispute demonstrates a much bigger problem: Most Americans have a limited and incorrect understanding of Native American history.
“Most Americans — even those occupying our economic and political centers — do not encounter Native Americans in their day-to-day lives,” said Gover. “Perceptions are reduced to myths and caricatures and to the limited education retained from the American classroom.”
Conscious or not, those occupying our “political centers” will only go so far to weigh in on whether the Washington Redskins should change their name.
“Conferring or not a property right is as far as the federal government will go. The U.S. Government will not step in and force the team to change its name,” says Grimmelmann. “That would get in the way of the team's First Amendment rights.”
Ultimately, the decision to change the name or not, will be up to the team owners and most importantly, the public.