An overwhelming majority of Native Americans isn’t troubled by the team name “Washington Redskins,” a Washington Post poll has found. But will that help the football club hang onto its controversial name?
On May 19, the Post published the results of a poll concluding that 90 percent of Native Americans are not bothered by the club’s use of the name. It found 80 percent of respondents would not be offended at being personally called a “Redskin.”
The telephone poll of a random national sample of 504 Native American adults, conducted from Dec. 16, 2015 to April 12, 2016, comes as the Supreme Court considers weighing in on whether a ban on registering disparaging trademarks violates the First Amendment guarantee of free speech.
In December, a federal appeals court struck down the ban as unconstitutional. But the government has asked for the high court’s review in a case involving the trademark “Slants” as used by an Asian-American rock band. The Redskins, who are involved in a separate case, asked the court to merge the two cases together to resolve the issue.
Survey results, of course, aren’t relevant to the question of the ban’s constitutionality. But they might come into play if the ban survives a Supreme Court review. The court has not yet announced if it will hear the case.
If the ban gets a pass, the football club would have to revert to arguing that, at the time it registered its trademarks in the late 1960s, “Redskins” was not considered disparaging by Native Americans.
It’s reasonable to presume that the survey could help in making that case. Extrapolating from the results, the Redskins could argue that a term found not offensive by most of the relevant audience today—a time of arguably greater cultural sensitivity—surely would not have been considered MORE offensive 50 years ago.
But there’s a catch. All the government—in this case the Patent and Trademark Office—has to show to reject a Redskins trademark registration is that the term was disparaging to a “substantial component” of Native Americans.
So what’s a substantial component? By today’s survey results, the PTO would have to determine if the 10 percent who found the term offensive comprises a “substantial component.” The last time the PTO wanted to cancel the registrations, it said 30 percent was enough to knock them down.
As for free speech, the government’s main argument is that denying a federal trademark registration to the Redskins, or the Slants, doesn’t interfere with that right because it’s not forcing them to change their names.
The Redskins could try to enforce their trademark rights without the registration. Trademarks and the rights they confer exist not due to a registration but because they have been used in commerce to identify the origin of goods and services. Both state and federal law also protect unregistered trademarks.
Most national companies, however, like to have their trademarks registered by the PTO because they benefit from a presumption of ownership rights nationwide if they end up in court; it saves them the step of having to prove ownership and what goods and services their rights extend to. And a federally registered trademark can be filed with Customs and Border Protection to automatically block attempted importation of knockoffs.
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