Wednesday, June 18, 2014

Skinning the Redskins

I have no interest in sports. Never had any. I don't care who wins the world soccer championship, or comes out on top during the football, hockey or baseball seasons, or which team wins the pennant or trophy. It's not that I'm anti-sports. I am consummately indifferent. I guess I was born without a "sports" organ. When work colleagues asked me if I'd watched "the game" last night, my traditional response was: "When they schedule the Pittsburgh Pirates versus the Green Bay Packers, then I'll take an interest." That friendly retort usually drove home the idea that they shouldn't invite me to join a football pool. I'm not likely, either, to go wild in the streets, trashing shops and burning cars and being maced by riot police, if the Lakers lose to the Chicago Cubs, the Oshkosh Bears, or the Winnipeg Penguins.

However, the recent decision of the U.S. Patent and Trademark Office to de-register the name of the Washington Redskins is a serious matter, fraught with dangers not only to trademarks and trademark owners, but to patents and patent holders, in addition to copyrights and copyright owners, as well. Theresa Vargas in her June 18th Washington Post article, "Federal Agency cancels Redskins trademark registration, says name is disparaging," reported:

The United States Patent and Trademark Office has canceled the Washington Redskins trademark registration, calling the football team’s name “disparaging to Native Americans.”

The landmark case, which appeared before the Trademark Trial and Appeal Board, was filed on behalf of five Native Americans. It was the second time such a case was filed….

Federal trademark law does not permit registration of trademarks that “may disparage” individuals or groups or “bring them into contempt or disrepute.” The ruling pertains to six different trademarks associated with the team, each containing the word “Redskin.”

Commercially, what the ruling means is that while the team's owners won’t be forced to change the team's name to something more saccharine (or politically correct, e.g., "The Big Hulking Guys Who Chase Obloids"), it has lost the right to control the usage of the team's name in its logos and merchandising endeavors. That is, the name is up for grabs to whoever wants to sell T-shirts, mugs, glasses and apparel under that name. The team's owners would not be able to even license the team name to other parties.

Constitutionally, the de-registering amounts to a theft of property without compensation. The suit by the five "Indians" against the Redskins might be interpreted as having adhered to the "due process" clause of the Fifth and Fourteenth Amendments:

The government may not deprive citizens of “life, liberty, or property” without due process of law. This means that the government has to follow rules and established procedures in everything it does. It cannot, for example, skip parts of trials, or deny citizens their rights as protected by the Bill of Rights and by law.

 "Due process," in this instance, meaning the legalized theft of the Redskins name. "See? We followed the rules. The Patent and Trademark Office followed the rules. That's 'due process,' isn't it?"

Another Washington Post article by Cindy Boren, "Trademark decision puts economic, political pressure on Redskins," noted:

But whether a perfect storm of those issues is gathering is far from clear. Economically, the league isn’t likely to feel much of a pinch. Most of its revenues derive from TV licensing, although merchandise sales are significant. The nation’s most popular sports league, the NFL generates revenues estimated at more than $9billion annually and the Redskins, at $1.7 billion, were rated the league’s third-most valuable team by Forbes magazine last year. Their annual revenue was estimated at $373million.

This misses the point. The potential or real loss of revenue resulting from the decision is irrelevant. The Patent and Trademark Office's decision, based on a suit filed by five individuals, constituted the theft of property, on the most specious of reasons, that the "name" (and associated symbols) was "disparaging." The Office as much as said: "Your name and symbols are offensive to a certain protected class of citizens, and hurts its feelings, so this agency is delegitimizing said name and symbols as protectable and licensable property. The exclusivity of said name and symbols is hereafter null and void."

The actual document of the decision is 177 pages long, and includes many pages of some highly dubious documentation submitted by the complainants to buttress their case, including citations of novels, movies, TV shows, symbols of Indians from the past (such as dime or tobacco store Indian statues). The five complainants, Amanda Blackhorse, Marcus Briggs-Cloud, Philip Gover, Jillian Pappan, and Courtney Tsotigh, purport to represent all American Indians (aka "Native Americans"; anyone born in the U.S. can claim to be a "Native American." The term is meaningless).

Boren's article goes on to report:

As a league official said, “The decision does not mean that the team loses its trademark protection. It loses the benefits of federal registration, but the team will continue to protect its trademarks against third parties using it.  The team has what is called ‘common law rights,’ which do not require a trademark registration.”

Gabriel Feldman, the director of the sports law program at Tulane University, agreed with that interpretation. “This ruling doesn’t eliminate the ability of the Washington Redskins to use their trademark or prevent others from using it,” Feldman told the Post’s Mark Maske. “But it does limit their ability to enforce their rights. It ultimately could change the financial analysis about whether to keep the name or change it. … At the end of the day, this likely still will be a financial decision. I don’t know that this changes the political pressure. … This is clearly not the first time there’s been a public declaration that the name is disparaging and offensive.”

A Washington Post editorial of June 18th opined:
Were the ruling to stand, bootleggers could pump out cheap jerseys, jackets and other trinkets bearing the team’s logo and name without the team collecting licensing fees. It could even make the Redskins name and logo even more pervasive than it is now.
Despite a well-orchestrated public relations pressure campaign that has been joined by the usual cadre of liberal special-interest groups, polls have consistently found that there’s never been more than a tiny minority of the public at large and, more importantly, of American Indians themselves, who think the name is offensive. Ninety percent of the American Indians told pollsters for the Annenberg Public Policy Center in 2004 that the name didn’t bother them.
George Preston Marshall, the founding owner of the club, chose “Redskins” in 1933 to honor Lone Star Dietz, the coach and an American Indian. “I admire the Redskins name,” the late Jack Kent Cooke, whose family sold the team to Dan Snyder in 1999, once said. “I think it stands for bravery, courage and a stalwart spirit, and I see no reason why we shouldn’t continue to use it.”

NBC disagrees, or hasn't read a history of the Redskins. Its May 27th, 2014 article, "Civil rights groups urge players to oppose Washington team's name," raises the usual suspects of oppression and exploitation.

Over the weekend, a couple of random Washington players tweeted approval of president/G.M. Bruce Allen’s response to Senator Harry Reid regarding a 50-Senator letter opposing the team name.  Now, more than 50 Native American and civil rights groups are urging all other players to take a stand in opposition to the name.

In a letter dated Wednesday but released to the media today, more than 75 different organizations have asked NFL players to speak out against the team’s name.  The letter comes less than a week after NFLPA president Eric Winston explained on PFT Live that the players union doesn’t plan to get in the middle of the lingering controversy.

“Despite team officials claiming the name ‘honors’ Native Americans, the ‘R-word’ does exactly the opposite,” the letter states. “It was the word screamed at Native Americans as they were dragged at gunpoint off their lands, it is the word for the object needed to collect a bounty—literally ‘red skins’—ripped from dead Native American bodies and exchanged for money as proof of kill, and it is a term that still denigrates Native Americans today. The name does not honor people of color, instead it seeks to conceal a horrible segment of American history and the countless atrocities suffered by Native Americans….”

No mention of the atrocities suffered by whites at the hands of Indians from coast to coast in the 18th and 19th centuries. Well, they don’t matter, do they?  And, of course, more of the usual suspects:

The list of organizations sending the letter includes the NAACP, the Anti-Defamation League, the National Gay and Lesbian Task Force, the National Fair Housing Alliance, and many Native American groups.

How many Indians are we talking about who feel "disparaged" or "offended" by the Redskins' team name? One and a half handfuls out of tens of thousands of individuals claiming to be full-blooded, half-blooded, and even fractional Indians, according to a number of articles on the subject. For example, in September 2004, the Washington Times ran an article, "Indians give a cheer for the name 'Redskins'":

Ninety percent of American Indians say the name Washington Redskins does not offend them, according to a new national survey.

Only 9 percent of polled Indians say they find the name of Washington’s professional football team “offensive,” according to the results of the University of Pennsylvania’s National Annenberg Election Survey. The other 1 percent did not respond.

“I thought more people would have had” problems with the name, said Adam Clymer, political director of the survey, which questioned more than 65,000 Americans of all races and ethnic groups between Oct. 7, 2003, and Sept. 20, 2004.

There are bogus Indians. The most notorious of them still living are Elizabeth Warren, a Harvard professor and politician who claims to have Cherokee blood in her background. There is Ward Churchill, another obnoxious academic who called all the people who died on 9/11 in the World Trade Center "Little Eichmanns." He also claimed to be of Cherokee blood, until real Cherokees outed him. Reason Magazine ran an interesting column in 2012 on the most notable fake Indians, "5 Other Fake Indians Besides Elizabeth Warren."

My car once broke down in Gallup, New Mexico on a cross-country trip. Nearby was a Navajo Indian reservation. The mechanics who fixed my car were half-Navajo brothers who did not live on the reservation. We "bonded," because their family name was…Cline, as well. They weren’t "red" or even bronze, but rather tan, grew moustaches (full-bloods are genetically incapable of growing facial hair or hair anywhere on their bodies), and didn't have many nice things to say about the reservation Indians (drunks, lazy, always fighting, looking for a fast buck, etc.). I introduced them to the idea that perhaps being dependents of the federal government wasn’t doing them much of a favor. The indolence encouraged by the federal government was inherently destructive. They agreed.

I think the only "redskins" that might exist have a severe case of sunburn.  

And the only "redskins" who would feel "offended" by the name are at root tribalists who have a vested interest in being a "minority" ready to accept free money and taxpayer-paid benefits. The federal government is inclined to make them dependent, too.

But, then, the federal government, especially under President Barack Obama, wants to put the whole country on a reservation.

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