Wednesday, June 18, 2014

Unintended consequences - look for a flood of offensive Redskins products, thanks to the opponents to the Redskins' name

Isaac Garcia shared a Politico article that details a recent court ruling.

In a major blow to the Washington Redskins, the U.S. Patent and Trademark Office on Wednesday canceled six federal trademarks of the Washington Redskins team name because it was found to be “disparaging” to Native Americans.

“We decide, based on the evidence properly before us, that these registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered,” the patent office’s Trademark Trial and Appeal Board wrote in a 2-1 decision.

From previous items that I have read, I know that the "at the respective times they were registered" point is key. The Politico article doesn't detail the exact years of registration of the relevant trademarks, but apparently the Patent and Trademark Office felt that even then, the name "redskins" was derogatory to Native Americans.

Let me briefly interrupt myself for a relevant disclosure.


For those who haven't followed this particular story, there has been a decades-long debate over whether the "Redskins" name (derived from the time that the team was in Boston) is a hallowed historical name, or an offensive slur that does not belong in the National Football League. (As opponents have noted, the name "Redskins" has connotations that other sports team names do not have - Indians? Braves?) Opponents argue that Native Americans and others oppose the name. Proponents argue that only a minority of activists are getting fired up over the name.

But for the moment, the U.S. Patent and Trademark Office has spoken, although the ruling can be appealed.

But if the ruling sticks, there's an interesting little unintended consequence of the ruling, at least in the short term.

Of course, the move to remove trademark protection from the name "Redskins" is an effort to get the Redskins - legally, an entity known as Pro Football, Inc. - to come up with some other name. However, there's nothing to prevent the team from continuing to use the name, as Politico notes:

Critics of the Washington Redskins name who had turned to the trademark office note that the ruling against the team by the patent office does not stop the organization from continuing to use the term. But it could potentially devalue the name because anyone would be able to use the unprotected name, meaning that companies not affiliated with the team could, for instance, print and sell t-shirts, posters and whatever other products they wanted without having to share any revenues with the Redskins’ owners.

Now take a moment and think about the ramifications of THAT.

In essence, if the ruling sticks, this means that anyone can produce Washington Redskins products without having to pay a license fee to the NFL or to Daniel Snyder. With the removal of the license fee restriction, more people will enter the market and produce Washington Redskins products. Ironically, efforts by opponents to suppress the name will, at least in the short term (until Snyder caves) result in the name being used a lot more.

But wait, it gets better.

While the trademark was under the control of Pro Football, Inc. and the NFL, Washington Redskins licensed products needed to conform to certain minimum standards of taste. As a multi-billion dollar corporate entity or group of corporate entities (take your pick), the National Football League could not afford to be associated with anything that would anger its advertisers.

But now that this restriction has been removed, all sorts of Redskins products are possible. I was not old enough to remember the days when the Washington Redskins were the NFL's southernmost team, and coincidentally the last team to add a black player to its roster, but you can bet that businessmen in the South (and yes, in Boston) will take the opportunity to produce products that proclaim the Redskins are the best, the Cowboys [expletive deleted], and that those who don't like it can [expletive deleted]. I don't think Roger Goodell will be happy.

Oh, and the danged foreigners and organized crime won't be happy either, as new people muscle in on the market for unauthorized Redskins products. Consider Robert M. Tyler's description of the situation in 2013, back when the Redskins trademark was protected like any other:

Just before this year’s “big game” (in another article, we’ll talk about the use of “Super Bowl” in advertising), U.S. Immigration and Customs Enforcement announced it had led a nationwide enforcement operation netting almost 200,000 fake or counterfeit NFL souvenirs valued at over $17 million. The investigation targeted not only international shipments but also warehouses, stores, flea markets, online vendors and street vendors. Forty-one people were arrested.

So, by now, perhaps you’re thinking, “Fine, Rob, my business should think twice before selling unlicensed NFL merchandise. But what’s the harm if I buy my kid a fake jersey online and save some money?” Granted, you’re not going to get sued for buying a counterfeit product. But it may trouble you to hear of increasing evidence tying organized crime to counterfeit sports merchandise.

Obviously the opponents of the name hope that Snyder and the NFL will cave quickly and change the name. But as Redskins/Skins/Rednecks fans well know, Daniel Snyder marches to his own drummer, and he may very well continue to use the Redskins name, despite the loss in revenue, and despite the fact that we're going to see a flood of offensive unlicensed material that would even make Bill Watterson cry.
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