Federal Judge: U.S. can be Indian givers:Redskins not trademarked
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Indian givers? Jeez. A touch ironic given that they were continually lied to and fucked over by whitey.
Indian givers is not ironic, it is racist. And why is this a shame? Am I just missing all sorts of sarcasm?
Ha, I am a fucking idiot.
Sucks a judge had to tell the team to do the right thing. #kennedypurpleprose
Sucks a judge had to tell the team to do the right thing. #kennedypurpleprose
The issue is not whether the mark can be trademarked. That is not at issue in the case. The issue is whether the mark can be registered by the US trademark office. (Or more specifically, whether the trademark office improperly denied registration.). Registration anong other things provides the matk certain benefits in litigation.Rasputin said:
The reason a disparaging mark cannot be registered is because the statute says so. If you want disparaging marks to be entitled to trademark registration, your beef is with Congress and the statute, not with the judge's ruling. Congress would need to change the law. If you want to trademark "George Bush Beats His Wife Beer," or "Doesn't Taste Like Piss Like That Other Beer Beer', Congress has decided they aren't goint to register your marks.
The Washington football team's constitutional argument is that it has a first amendment right to register a disparaging mark. The court held that whether or not you get registration doesn't curtail your speech. Say whatever you want. Use slurs all day long. Use slur trademarks in fact. All the court is saying is the first amendment doesn't force the United States to register you slur. And, the court adds, whether or not to extend registration to you slur is speech by the government, not by you. The first amendment doesn't mean you can force the government to endorse your speech. (It's more complicated than that because there are limits to the government's ability to deny benefits based on the content of speech, but that's the gist.)
In fact one of the Washington football team's arguments was that denying it registration amounted to the government weighing in on whether the term Redskins is offensive. To which I imagine the U.S.P.T.O.'s response was something like, "Yeah, that's right. And?" The first amendment doesn't prohibit the government from speaking.
MarcSullivaFan said:
Just a guess, but I think he was making a lame joke about how the mistreatment of native americans is a liberal myth.
He could also be an ignorant tool. But I'm going with "lame joke" for now.
I'm sensing that there is something underlying in this thread that similar to the JPP thread should get me outraged. Someone please let me know just how condescending I should be to people attempting jokes here.
There's about a 50 percent chance. It's a long opinion. I think if it gets overturned, it could be because of something I put in a parenthetical. The idea would be that registration is a benefit and you can't have the government deciding to whom to give benefits based on the content of their speech. You probably couldn't start giving social security benefits only to those who agreed to put anti-abortion signs in their front yards. Looking back at Rasputin's larger point, I'd concede there's a not-always-easy-to-draw-line between the government speaking and curtailing commercial speech.joe dokes said:As a lawyer who knows less than nothing about the patent world, I appreciate this explanation. (You better be right!!!!!)
Understand first that this decision does not cover the current logo, just the name and prior logos. Then understand that this would remove just federal trademark protection. There is also protection under state law that the Redskins could assert.
So the answer is, no time soon and perhaps not very profitably.
So the answer is, no time soon and perhaps not very profitably.
DennyDoyle'sBoil said:
How similar is this decision legally to the recent Supreme Court ruling that Texas need not issue license plates bearing the confederate flag?
Part of the Trademark Case is definitely premised on the same principle. I find the Texas license plate case a bit less defensible though.singaporesoxfan said:
Aside from the fact that in his effort to keep the name, Snyder has (presumably) given his lawyers the green light to concede that 'Redskins' is as offensive as 'Bound Gangbangs,' does it matter legallly if nobody has challenged any of those other registrations?
There's a saying that courts only decide the cases that are before them. But it's fair to use the marks as evidence in support of their point, which is that a trademark is not government speech. It's also a nice point because it makes the government look bad (arbitrary, which is a bad thing in administrative law) for inconsistent enforcement.joe dokes said:
The first amendment issue here is an interesting one. I think if we went back to the language of the amendment itself the government wins--denying a trademark does not abridge speech, i.e., there is no actual loss levied upon the team for using its preferred name. The problem as I understand it is the unconstitutional condition doctrine, which is the notion that to some extent the government cannot condition a benefit (granting trademark protection) on surrendering a constitutional right (the freedom to select a name as the team sees fit). That the battle is being fought at least in part over whose speech it is suggests that the team may win on the application of the unconstitutional condition doctrine as long as the choice of the name is considered their own speech--and that seems like a fairly easy question.
Only 10% of Native Americans are offended, so... yay? The NFL is only offending a quarter of a million people?
In all seriousness, this is the takeaway. I'm not sure what the tipping point is with this sort of thing. It's kind of an odd and irrelevant poll.
Is it irrelevant? I'm not convinced that the poll is actually representative, but if it were, and exactly 91% of all Native Americans were not offended by the term, would that really not matter? I bet 9% of Irish Americans find the Fighting Irish to be offensive. Some black people find the term "black" to be offensive, while others find "African-American" to be offensive. Which do you use?
I don't know what the tipping point is either, but I feel like 9 or 10 percent isn't it.
I don't know what the tipping point is either, but I feel like 9 or 10 percent isn't it.
Yeah, that's what I'm saying. I think it needs more context, both in terms of the other ethnic groups you point out and just kind of a general conversation about what's acceptable. Saying, hey 91% of people are chill with this doesn't mean much in a vacuum. I feel like lots of accommodations are made for similarly small percentages.
The poll is relevant to this extent. There was an Annenberg poll done in 2004, with pretty much the same results. Opponents of the name wrote that poll off, saying in effect "that poll is old; I've spoken with Native Americans; and take my word for it, they find the name offensive."
So it turns out that to the extent Native American attitudes matter, you cannot take the critics' word for it. And all this while, it has been somewhat curious that if the critics funded a poll of their own with contrary results, we have not heard about it.
It is challenging to have a thoughtful discussion of the broader issue because passions run high and there are people on both sides who claim that there is only one defensible position. I was in one of those camps, and this poll is leading me to evaluate the firmness of my convictions. I don't think the Washington Post anticipated or wanted these results; it probably triple-checked them. As in other things, we don't handle complications and nuance very well.
So it turns out that to the extent Native American attitudes matter, you cannot take the critics' word for it. And all this while, it has been somewhat curious that if the critics funded a poll of their own with contrary results, we have not heard about it.
It is challenging to have a thoughtful discussion of the broader issue because passions run high and there are people on both sides who claim that there is only one defensible position. I was in one of those camps, and this poll is leading me to evaluate the firmness of my convictions. I don't think the Washington Post anticipated or wanted these results; it probably triple-checked them. As in other things, we don't handle complications and nuance very well.
Poll doesn't tell me a while lot for a variety of reasons.
For one, not sure it is a great sampling.
Also need to follow-up with more questions.
The article talks about how it seems the generally public is more against it because a higher percentage in other polls thought the name should be changed.
But that isn't what this poll asked. It simply asked if it bothered them, it didn't go into any detail about being in favor or opposed to a name change.
21% also thought the term was disrespectful.
For one, not sure it is a great sampling.
Also need to follow-up with more questions.
The article talks about how it seems the generally public is more against it because a higher percentage in other polls thought the name should be changed.
But that isn't what this poll asked. It simply asked if it bothered them, it didn't go into any detail about being in favor or opposed to a name change.
21% also thought the term was disrespectful.
I think roughly 10% of Americans believe Elvis is still alive. You can't get unanimity on anything. But if you're down around Elvis-Lives levels, chances are it's not an urgent national (or, more to the point, legal) priority.
Tyranny-of-the-majority issues are impossible to form a bright line on. There was a point in time where an overwhelming majority of adults in the US would have endorsed exterminating native americans, or japanese-americans, or americans whose ethnicities trace to muslim-majority countries. Or at least deporting them. One of the best aspects of the US constitution, in my view, is how broadly the 14th amendment's equal-protection language has been interpreted in recent decades to protect the interests of small minorities, the accommodation of whom might be inconvenient and easily trodden upon.
The government awarding of a trademark is a pretty light touch, on the spectrum of government action. It seems to me that most people who want to force the Washington franchise to change their nickname want to use the tools of government to legislate public morality, effectively. That despite it being a private entity, they want to act as if it were a public one in terms of the remedies they have available, and are using this trademark thing to shoehorn in a government-level standard of review to private speech. As some of the articles covering it have pointed out, there are some trademarks that have been awarded that are far more offensive, at least to most people. So I'd probably expect that it would need to be a pretty obnoxious level of inconvenience to native americans - way above this 9% shown by polls - in order to justify crossing that public/private chasm here. So in that sense, the poll does have plenty of weight with me.
I think the activists seeking name change are missing the forest for the trees. The way bad private actors have been shamed into action in the past has been with protests, boycotts and public humiliation. They already have the media on their side! Burn Snyder in effigy outside the stadium on game days, make sure it makes the news. Stage a season-ticket-holder walkout a la Liverpool. The team sucks, so give people an additional righteous-sounding reason not to renew their tickets and let them declare that publicly, give them the shield of respectability in order to make a personal-entertainment decision. This focus on the trademark is really kind of a sideshow from where the real action ought to be, in my view.
On the contrary I think this is a potentially much-more effective stance. Just the risk of losing trademark would have persuaded a smarter businessman to change the name 15-20 years ago. Unfortunately it's Daniel Snyder and even his usual level of business sense is undercut by how personal it is for him. He's also a billionaire so it might not matter how much money he loses as a result of this. Similarly, humiliation clearly has no effect on him.
That said, humiliation may have an effect on the team's sponsors: FedEx, Anheiser-Busch ( Who just renamed Budweiser as America for some reason. I'm sure that's some great synergy with a racial slur for Native Americans.), Sprint, and Coca-Cola.
In the interests of arguing with myself, here's The Undefeated's Mike Wise making a different (though far more emotional) case:
More at the link. I think he ends up arguing against a strawman a little bit in talking about tyranny-of-the-majority issues (they polled native americans themselves on whether they personally were offended, let's recall), because nobody just went and asked a general pool of Americans whether they cared whether native americans were offended or not. But he doesn't have zero point, either, because the harms aren't evenly distributed on both sides of the decision.
Personally I think human mascots are kind of creepy so I'd be just fine with dumping the Notre Dame Mascot.
You get that the Washington team name is not a race, but a racial slur, right? They aren't the Washington "Fighting Arapaho".
I get it.
I guess a better way to make my point is with an analogy. Just because smacking your kid around is wrong doesn't mean we should ban all child discipline. Maybe Notre Dame's mascot, in this analogy, is like spanking. To some people that crosses the line, to others it doesn't. I think his point was analogous to saying that if I can't put out a cigarette on my kid's arm because he spilled his juice, then we have to stop taking away his game boy when doesn't do his homework, too.
On a slightly different note: if the Haslams changed the name of their team to the Cleveland Brownskins and put an image of a Raja on the helmet, or if the DeBartolos rebranded their team the S.F. Yellow Men and added a picture of a Chinese emperor, or, say, Mark Davis renamed his squad the Oakland Darkies with a image of an African chieftain, I would refuse to use those names (unless they did it ironically to make a point about the Washington team - in which case they would have my unending loyalty) and argue that they should be changed to something else. Why should Snyder get a pass? Because I don't work with or live near any native americans and therefore don't have to look them in the face when I use the slur?
I guess a better way to make my point is with an analogy. Just because smacking your kid around is wrong doesn't mean we should ban all child discipline. Maybe Notre Dame's mascot, in this analogy, is like spanking. To some people that crosses the line, to others it doesn't. I think his point was analogous to saying that if I can't put out a cigarette on my kid's arm because he spilled his juice, then we have to stop taking away his game boy when doesn't do his homework, too.
On a slightly different note: if the Haslams changed the name of their team to the Cleveland Brownskins and put an image of a Raja on the helmet, or if the DeBartolos rebranded their team the S.F. Yellow Men and added a picture of a Chinese emperor, or, say, Mark Davis renamed his squad the Oakland Darkies with a image of an African chieftain, I would refuse to use those names (unless they did it ironically to make a point about the Washington team - in which case they would have my unending loyalty) and argue that they should be changed to something else. Why should Snyder get a pass? Because I don't work with or live near any native americans and therefore don't have to look them in the face when I use the slur?
To the point of your second paragraph, you wouldn't similarly decry the introduction of "Fighting Irish" as a team name today, if it wasn't a brand that was already ingrained in our culture? What about the "Drunk Russians" or "Sleepy Mexicans"?
I think everyone's okay with it because we grew up hearing the name, so it seems innocent. That sounds similar to what Washington fans say. If it were news today, the university president would be making a public apology and someone's job would be on the line.
FTR - I'm Russian / Irish, so I guess you can beat me up for the Mexican example of you want. Also, I don't care about changing Notre Dame's mascot.
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