It took tax evasion to bring down Capone. A Native American group hopes that another arcane economic law — trademarks — can do the same to the Washington Redskins.
Later today, the USPTO's Trademark Trial and Appeal Board will consider if the NFL team should lose its federal trademark because it violates Section 2(a) of the Trademark Act, which bars any mark that
[c]onsists 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
It's that disparagement section that's bringing the issue to a head. For decades, critics have suggested (with justification) that naming a team after an expression once used as a racial slur is disparaging to the insulted group. Even D.C.'s local weekly, Washington City Paper, last year decided that it would no longer use the team name at all — though that was also in part due to a longstanding feud with the team's owner.
Trying to strip trademark protection from the Redskins has been tried before. In 1999, the USPTO determined that the team should lose protection, but the determination was overturned by a federal judge in 2003. That judge didn't rule on whether or not the name is offensive, instead finding that the trademark office "relied on flawed or incomplete data." (For those really interested in diving into the 2003 legal arguments, see this overview.)
Today's hearing, then, is a do-over. CBS DC spoke with Suzan Shown Harjo, one of the 1999 plaintiffs who is also involved in today's action.
Redskins general manager Bruce Allen said last month that it is “ludicrous” to think that the team is “trying to upset anybody” with its nickname, which many Native Americans consider to be offensive.
That’s beside the point, according to Harjo. She’s never suggested that the Redskins deliberately set out to offend anyone. But that doesn’t mean that people aren’t offended.
“It’s just like a drive-by shooting,” Harjo said Wednesday. “They’re trying to make money, and not caring who is injured in the process — or if anyone is injured in the process. I don’t think they wake up or go to sleep dreaming of ways to hurt Native people. I think they wake up and go to sleep thinking of ways to make money — off hurting Native people.”
Harjo's point about making money is a good one, and it's the leverage that she and her allies hope to influence. If the Redskins lose trademark protection, anyone can sell paraphernalia bearing the name of the team without repercussion. For the fifth-most valuable sports franchise in the world, that's a significant threat.
But it also raises another consideration: Were the team to change its name, imagine the massive spike in sales from fans looking to swap outdated shirts/hats/tire covers/golf bags for ones with the new name. A switch could end up being very profitable. They just need to make sure they pay all the appropriate taxes.