The Washington Redskins are appealing the federal court decision that cancelled their controversial trademark. In the original case, a federal judge ruled that the name was offensive to Native Americans and therefore ineligible for trademark protection. The decision was based on the Lanham Act of 1946, which prohibits protection of trademarks that "may disparage" individuals or groups. The trademark has been cancelled once before, in 1999, but the decision was overturned.
Even if the team loses all possible federal appeals this time around, it may still seek trademark protection from states and continue to use the name. However, the team argues that the decision harms both its brand and its ability to crack down on counterfeits.
Why is this important?
The question of offensive names goes far beyond the Redskins and the federal trademark office. Public opinion is turning against names now perceived to have racist or insensitive associations. For example, Princeton University is considering renaming the famous Woodrow Wilson School of Public and International Affairs after students publicly noted that President Wilson supported racial segregation. This week, the University of North Dakota changed its team name from the 'Fighting Sioux' to the 'Fighting Hawks.' Similarly, Amherst College faculty have endorsed dropping Lord Jeffrey Amherst as the school's mascot, whose writings advocate for giving blankets containing smallpox to Native Americans.
Should the federal government remove the Redskins' trademark on the grounds that it is offensive and disparaging?
Not only should the federal government allow the Redskins' trademark, it should remove the disparagement clause completely to end censorship of speech the government dislikes.
By removing the Redskins' trademark because some perceive it to be offensive, the government is discriminating based on content in a commercial system meant to offer protection for all viewpoints.
More generally, the government should not prohibit registration based on an objection to its content. In doing so, Section 2(a) of the Lanham Act violates the First Amendment.
Trademarks are inherently expressive, and by offering legal protection to some and not others the federal government unfairly burdens owners with whom it does not agree. It should end this violation of free speech—and start with the Washington Redskins.
The federal government not only may remove the Redskins trademark, it should do so to avoid endorsing a slur against a racial minority—and the team should too.
The term 'redskin' is an Oxford English dictionary-defined slur and the National Congress of American Indians have declared it racist. The term qualifies as disparaging under the Lanham Act's Section 2(a) and therefore may legally be prohibited.
Beyond the fact that it may, the government should enforce this prohibition. Trademarks are not free speech. They are a commercial government protection—and an effective subsidy—that should not elevate racist slang.
Further, from a public relations standpoint, it would be wise of the team to preemptively change the name as a gesture of respect towards a people who have faced too many historical indigities.