This week, Slate announced that it would stop referring to the NFL team from Washington, DC, as the Redskins. With this decision, Slate joins Washington’s City Paper, as well as the Buffalo News and the Philadelphia Daily News, in their refusal to use the Redskins moniker.
Litigation over the Redskins trademark has been protracted and convoluted. Substantively speaking, the litigation has focused on disparagement, which allows a trademark registration to be cancelled if it is disparaging to a substantial composite of a referenced group. Pro Football, Inc. v. Harjo was, however, decided on laches, which is a particular vulnerability for plaintiffs claiming disparagement. (In this particular case, it has also resulted in an odd situation whereby a new case has been filed in the TTAB over the same issue but with younger plaintiffs.)
The standard for disparagement is less than clear. Many TTAB decisions and court opinions have found that a mark just is disparaging with little supporting analysis. What is enough to be “substantial”, and what the parameters of a “referenced group” are, are often problematic (and have both been particularly problematic in the context of the Redskins litigation). Another problem with the standard is that it requires a mark to be disparaging at the time of registration. Thus, if a trademark was registered at a time when racism was socially acceptable, it might be more difficult for plaintiffs to petition for cancellation either because members of the group internalize that racism, or because the groups are not empowered enough to bring an action for disparagement in a timely fashion.
Extra-legal solutions, such as the decision by Slate and other media outlets, can be more effective than courts at addressing these issues. It’s not because of litigation, but because of market forces (including an evolving social and cultural climate), that a trend has developed toward elimination of American Indian school mascots at both collegiate and high school levels. The NCAA has banned conference play for teams with American Indian mascots, resulting in changes to more than a dozen teams. Other Universities, such as the University of Wisconsin-Madison and Iowa, have refused to schedule non-conference games against teams with American Indian mascots. Outside the courtroom setting, increased pressure has resulted in a steady decline of use of American Indian references in sports teams across the US. Whether or not these pressures reach the NFL team from Washington DC, however, remains to be seen.