The legal problems involve context, the limited population, and the relevant time period.
In a hearing before the Trademark Trial and Appeal Board [TTAB] on Thursday, the Indians were repeatedly reminded that they must show that the use of the word "Redskin" was disparaging – not in general or in isolation, but when used, apparently with pride, and with an economic incentive to vigorously promote it – as the name of a major league football team.
As a hypothetical example of the context problem, while the word "Yankees" might be disparaging when used in certain contexts – e.g., by a southerner speaking angrily about the loss of the civil war – it is proudly embraced by most residents of northern states as the name of a highly acclaimed sports team.
As two real life examples, Banzhaf notes that the TTAB registered “Jap” for women’s clothing, and “Moonies” for dolls, although both words would clearly be disparaging and offensive in other contexts.
Moreover, and perhaps more serious, the Indians also must show that the word “Redskins”
Unfortunately, during that time period, there are far fewer examples of "redskins" used in reference to Indians compared to a much larger number of instances of the term referring to the NFL team.
Since the legal test is the meaning and impact of the words only on Indians, surveys of the general population, dictionary definitions, the views of governmental bodies or sports organizations, etc., are legally irrelevant. In addition, this legal standard also creates another major problem.
As the Court of Appeals has already found, the "long delay made it difficult to obtain any other contemporaneous evidence of public attitudes towards the mark." The problem was compounded by the death of the then football team's former president who might have remembered something of attitudes and understandings based upon his meeting with tribal leaders near the time the trademark was registered.
It also means that things which have occurred since that time may not be legally relevant to bolster the Indians’ case, even if they has some relationship to the view of American Indians. Instead, the Indians are largely limited to the scant existing evidence of the attitudes and views of American Indians regarding the Redskins football team name some thirty years ago.
An additional problem is that this very evidence has already been found wanting by the federal judge very likely to review any new decision of the TTAB which is adverse to any of the trademarks.
In an earlier decision, she ruled that "the evidence the TTAB put forward comes nowhere close to meeting" the evidentiary standard, that the agency had "relied on flawed or incomplete data," and that the TTAB's conclusion was based "on a paucity of actual findings of fact that were linked together through inferential arguments that had no basis in the record." Convincing her that any evidence presented last week to the TTAB is any better or stronger is likely to be quite difficult.
Finally, at the Washington Post has conceded, the board's ruling may have only a very limited effect "because trademark officials do not have the authority to halt the sale of goods containing Redskins images or logos, nor can they order the team to pay damages to the petitioners,"
Banzhaf argues that challenges before the FCC to the broadcast licenses of TV and radio stations which repeatedly and unnecessarily use this word are likely to be much more effective since that legal test is whether the terms are derogatory and/or racist now rather than some 20-40 years ago, and because the impact of the license challenge on the targeted stations (e.g., to their credit rating) would be immediate.
Banzhaf’s previous legal actions related to the FCC resulted in hundreds of million of dollars worth of free broadcast time for antismoking messages, and a ban on cigarette commercials.
He was also instrumental in an FCC license challenge which pressured DC-area TV stations to begin employing African Americans on the air in significant roles for the first time.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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