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In an apparent attempt to preemptively distract attention from a looming disaster in New England, the local football club last week managed to stir up yet another round of off-field facepalming. The source of this latest drama was a legal brief filed by the team’s counsel attempting to overturn the cancellation of six of their trademarks by a federal judge earlier this year.
What’s interesting is that, while the brief is at times a compelling piece of work, it manages to make almost as strong an argument for changing the name as it does for protecting it.
The legal arguments follow a few basic tracks:
First, that the statute (from Section 2(a) of the 1946 Lanham Act) was inaccurately applied—that is, that it is meant to cover government speech, and a trademark registration is not government speech. Second, even if it did apply, it’s impossible to accurately determine what qualifies as disparaging. Third, the enormous delay between trademark registration and cancellation prevented the team from mounting a proper defense. Fourth, the trademarks were registered properly (and, incidentally, that not enough people consider the name disparaging). And, fifth, the doctrine of laches states that, basically, the petitioners didn’t act quickly enough from the time they became aware of the problem for their complaints to be enforced.
To disprove the assertion that a trademark is the equivalent of a government endorsement, the brief goes on to list a number of trademarks that “the Team believes are racist, or misogynistic, vulgar, or otherwise offensive.” And to the delight of sports bloggers, columnists, and the general Internet hivemind, the list includes such notable products as YID DISH, DIRTY WHOOORE CLOTHING COMPANY, MURDER 4 HIRE, GRINGO STYLE SALSA, WHITE GIRL WITH A BOOTY, and PARTY WITH SLUTS, among many, many others. You get the idea.
Goofy details aside, the filing is concerned with legal aspects like precedent and intent of the statute. But a decision overturned through a technicality would not in any way be a vindication of the name, so what really jumps out at me is the intense hair-splitting that goes on with regard to the term “disparaging.”
“The term ‘may disparage’ is hopelessly subjective, indefinite, and discretionary,” the brief notes. Even dictionary definitions, it argues, “are themselves vague. Merriam-Webster’s defines disparage as, inter alia, ‘to describe (someone or something) as unimportant, weak, bad, etc.’ … Terms like ‘bad’ do not meaningfully constrain the adjudicator’s discretion.”
Even amidst all the legalese and all the other avenues that the team is exploring to try to have this decision overturned and their name preserved, this is what it comes down to: What does “disparage” mean?
The problem is that, if you move away from the legal standard, “disparaged” is really an inadequate description of how the name’s opponents claim to feel. So is “offended,” another word that’s often used to characterize them.
I’ve written in the past about the feeling of being demeaned for cultural reasons, and it’s a visceral thing that no simple word can sum up, legally or practically. It is unmooring and demoralizing and upsetting and diminishing and belittling. Seeing this compressed into legal dickering over the badness of “bad” is frustrating.
It’s also, ultimately, beside the point: Even if the team name is outright hate speech, it is still protected under the First Amendment. It is probably not incumbent upon the government to force a change, and the team may well have made a compelling point to that effect.
That’s why the accuracy of “disparage” and “offend” is so important. If the team can tell themselves they’re just making people feel “bad,” it’s easier to continue using the name. And they will be the ones who have to make that change.
Fans of the team could help sway the decision, of course, and the brief provides another compelling reminder why they should—the team name really is just another corporate mark.
The brief compares it to GRINGO BBQ, CONTEMPORARY NEGRO, F’D UP, WHITE TRASH REBEL, and I LOVE VAGINA, but it’s also no different from PEOPLE’S DRUG, A&P GROCERS, DATSUN, and PRICE CLUB.
Corporate marks change, even longtime regional mainstays. The attachment isn’t—or shouldn’t be—to the name. (There’s no small irony in the fact that the team’s stadium sponsor, FedEx, simply changed its name in the ’90s after decades of success.)
“It is simply a historical accident that the Team is the Washington Redskins rather than any other Native American sports mascot,” the brief notes.
A corporate mark that’s just a “historical accident” seems like an impossibly foolish thing to spend so much time and energy defending—for fans, team executives, and even lawyers.
Follow Matt Terl on Twitter @matt_terl
Photo by Darrow Montgomery