The only thing worse than a frivolous lawsuit is a frivolous repeat of a frivolous lawsuit:
A group of Native Americans filed a new legal challenge yesterday to trademarks for the name and logo of the Washington Redskins, saying the team’s name is a racial slur that should be changed.
A petition filed at the U.S. Patent and Trademark Office by six Native Americans represents a second chance for Indians to challenge the football franchise’s name. The team prevailed in an earlier fight when a U.S. District Court judge ruled that the plaintiffs waited too long under trademark law to object. This time, the complaint was filed with a new set of plaintiffs.
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“The term ‘redskin’ was and is a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging and racist designation for a Native American person,” the complaint says.
Whatever thesaurus the plaintiffs are using, I want one. I’m surprised the complaint didn’t add “just plain icky.”
The litigation is premised on patent and trademark law, about which I know exactly zero. But let’s pretend this were a torts lawsuit.
Group libel is always a fun topic. It’s also always a loser in court — unless the group is unambiguously defined (e.g., “Every single member of the Washington Redskins uses illegal drugs…” would be actionable defamation at common law. “Most members of the Washington Redskins use illegal drugs…” would not).
So first and foremost there simply is no tort. And if there were, there would be a question of standing (who exactly qualifies as a “Redskin” capable of being offended?). And injunctive relief is not a typical tort remedy. Oh, and let’s not forget that pesky collateral estoppel problem.
Did we learn nothing from the Mohammad cartoon riots? Not every umbrage deserves correction, either in the courts or in the streets.
One sports trademark is “Just Do It.” Perhaps another should be “Just Deal With It.”
5 Comments
Kip: if you don’t know the history of this particular trademark question, check out Language Log (no link, just google) and enter “redskins” in the search function. Lots and lots of posts by Bill Poser (Linguist) and Geoff Nunberg (Linguist) about the topic of the lawsuit.
Also: when someone tells you that lots of money ought to be taken out of some pocket and put into theirs, because of a great and historical harm, you should do two things.
#1 Inquire into the harm. It may be real, and maybe greater than you knew. and,
#2 Keep your hand on your wallet, they may be trying to swindle you.
This includes tort reformers of course. đŸ™‚
Keep up the fine guest-hosting.
I did a quick google for the Redskins logo, and it’s actually very respectful; it’s the sort of image that could be on the face of a coin. As for the word itself being offensive, meh. I wasn’t aware it had particularly strong pejorative connotations, but then, I’m not terribly up on my racial epithets. Putting the legal issue aside for the moment, let’s look at the social issue: do people call other people “redskin” with the same connotation as using the n-word? If Wikipedia is to be believed, the name came from a desire to honor the Sioux mother of the team’s head coach. I’ve only ever heard the term used as a slang description, never as an epithet.
Yes, this would be a silly tort lawsuit. But it’s not a tort lawsuit, it’s a lawsuit under 15 U.S.C. § 1052(a), from which most of the synonyms in the complaint come from.
There’s also no collateral estoppel issue; the Trademark Trial and Appeal Board originally ruled in favor of the revocation of the trademark, the District Court reversed the TTAB, and the D.C. Circuit reversed, so the case is still pending.
As for the merits, I’m not entirely convinced of the proposition that the Indians don’t have a case that “Redskins” might be sufficiently offensive as to not merit a trademark.
As a more-than-hypothetical datapoint, consider, for example, the “Yid Army” of Tottenham Hotspur.
My combat outfit was the Second Infantry Division, the Indianheads.
I challenge anyone to suggest this was done to derogate the Indians any more than naming a team Redskins.
Perhaps they could rename the team The Pussies but keep the same picture.
Why I saw a US made movie the other week extrolling the virtues of Japanese-American troops in WWII. I am sure the fact that the soldiers were shown referring to themselves as “Buddha-heads” means it was a term of endearment.