Redskins Decide That Suing Offended Native Americans Should Really Help Their Case

from the the-white-man-cometh dept

When last we checked in on the DC area’s professional football team, we had just learned that the USPTO had decided to remove certain trademark protections from certain aspects involving the team’s name on the basis that it is a demeaning slur against Native Americans. Whatever you think of that particular decision, things are about to get strange. That decision was made following a petition by five Native Americans who appeared before the USPTO and argued successfully that the term “redskin” is disparaging and racist. Daniel Snyder, owner of the Redskins, has since claimed that the team’s name is not racist at all and has vowed to continue the fight to keep his trademarks in place.

One would have thought that this would mean going through the normal USPTO appeals process. One would have been wrong, it turns out. Daniel Snyder and the Washington Redskins, who insist that they respect Native Americans, have instead decided to take the five Native Americans who petitioned the USPTO for the removal of the team’s trademarks to court in a lawsuit.

In June, the five activists – Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh – won a landmark decision from the US Patent and Trademark Office to cancel the NFL franchise’s trademark registration. In their decision in June, the Patent office board said the trademarks were “disparaging to Native Americans.”

In response, instead of taking the case to an appellate court, the team decided to sue the five petitioners in a US district court in Virginia. This is an option used when there is a dispute over a trademark; two companies selling products under the same or very similar logos or names, for example. This case is extremely unusual because the five defendants have no vested interest in the team name or logo – they petitioned to have the trademark protection removed because of its offensive nature. On this basis, the defendants’ lawyers filed a motion to have the case dismissed.

And that filing was denied by the judge, who will allow this ridiculous lawsuit to go forward. The team’s lawyers apparently feel that using a lawsuit outside of its intended purpose is just fine in this case, even if it means the five activists will have to go through the legal proceedings, which will certainly involve some sort of time and monetary cost to them. It’s beginning to look as though Daniel Snyder can’t take a breath without pissing off at least some Native Americans. But, again, regardless of what you think of the team’s name, the important part of this story is that Snyder and the Redskins are pursuing a path specifically designed to chill speech regarding trademarks a corporation might have in place. Should this start some kind of movement to allow for lawsuits against mere petitioners in trademark disputes, well, the team with the most money wins. The point is that allowing this sort of thing to go forward attaches a legal firearm to every dollar a company has within its coffers. Who will dispute a trademark with the threat of an expensive lawsuit staring them down?

But even this move might backfire. While legal experts seem to agree the move is absurd, some of the involved parties are champing at the bit.

David Glass, the president of the National Coalition Against Racism in Sports and Media, said that he welcomed the legal challenge. “We’re all smiling. We want to get Dan Snyder in court,” he told the Guardian.

I imagine one of the things Glass wants to get on the table is Snyder’s ridiculous claim that the removal of trademark protections violates his free speech rights, all while taking five activists to court simply for speaking their minds. It’ll take some serious tap dancing to make that look logically consistent.

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Comments on “Redskins Decide That Suing Offended Native Americans Should Really Help Their Case”

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57 Comments
Anonymoussays:

Wait, how is the team “using a lawsuit outside of its intended purpose”? What makes the suit ridiculous?

The purpose of the petition (filed by the petitioners) was to cancel the registration, and the suit filed by the team is to maintain the registration. What do you think the purpose of the statute allowing the team to do exactly what it has done is?

Anonymoussays:

Re: Re:

Whether or not one agrees with the team or Mr. Geigner, there are two errors in this writeup.

First, it is incorrect to say that Snyder “has vowed to continue the fight to keep his trademarks in place.” He is seeking to overturn the cancellation of his trademark registrations. While this may appear to be nitpicking, it makes a big difference. Just as a copyright exists from the time a work is “fixed” and no registration is needed, trademarks are obtained by substantially exclusive use of a mark in commerce, no registration needed. Unlike copyright law, where you must obtain a registration to bring suit, you do not have to have a registration to sue someone for infringing your trademark.

So why do you want a trademark registration? Only because a registration allows you to have certain evidentiary advantages at trial owing to the fact that the PTO already has evaluated your trademark application and found certain things to be true, such as ownership, validity, and secondary meaning. Having a registration makes litigation easier, and when many people likely intend to infringe your trademark, that is something a trademark owner really wants to have. Thus, the TTAB decision means nothing about whether Snyder has to change the team or whether he can sue you for printing up “Redskins” shirts (though I never understood why some offended commenters on this site thought printing more shirts offensive to them was a good idea).

Second, there are two options for appealing a ruling of the Trademark Trial & Appeal Board. One is an appeal to the Federal Circuit, the other is an appeal to a district court. Both are perfectly acceptable. There is no nefarious angle to report. In fact, doing so likely is perfectly reasonable. There are evidentiary procedures available in a district court that are not available before the TTAB. The Washington Redskins just chose the latter option:

http://ttabvue.uspto.gov/ttabvue/v?pno=92046185&pty=CAN&eno=200

Sheogorathsays:

Re: Re: Re: Re:

Unlike patent law, where you must obtain a registration to bring suit, you do not have to have a registration to sue someone for infringing your copyright.
So why do you want a copyright registration?
Only because a registration allows you to have certain advantages at trial owing to the fact that the USCO has an official record of your copyright, which makes it easier to prove certain things to be true, such as ownership and validity. Having a registration also makes litigation more advantageous, and when many people likely intend to infringe your copyright, that is something a copyright owner really wants to have.

FTFY, AC2.

Sheogorathsays:

Re: Re: Re:2 Re: Re: Re: Re:

Actually, 17 USC ? 411(a) specifically states that the original author and no one else can sue without registration. To quote the whole subsection:
(a) Except for an action brought for a violation of the rights of the author under section 106A (a), and subject to the provisions of subsection (b), [1] no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register?s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

Yikes. That quote does not say what you say it says.

Where exactly are you getting “and no one else” from? Certainly not anywhere in the quoted language. Copyrights can be transferred from the author to others, and you don’t need to be the author to own a copyright or sue for infringement.

The subsection does say that “the applicant” can institute a civil action for infringement if he has deposited his application and all necessary fees and the application was rejected.

Other courts have said that getting an application on file is enough to bring suit also (regardless of whether it has been rejected or just hasn’t been acted on yet).

Sheogorathsays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

(a) Except for an action brought for a violation of the rights of the author under section 106A (a), and subject to the provisions of subsection (b), [1] no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. (emphasis mine)
Any clearer yet?

Anonymoussays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re:

Ah, I may have mistook your previous post.

Yes, an author can bring a claim under section 106A (which only provides an U.S. approximation of “moral rights”) without first registering the copyright.

But the quoted section does not say that non-authors cannot sue (which is how I interpreted your prior post, probably incorrectly), only that registration of the claim must be made before non-authors can sue.

But, at any rate, authors and non-authors alike can sue for copyright infringement once they have properly filed their application, even before the registration issues (at least in some circuits).

Michaelsays:

Re: Re:

The purpose of the petition (filed by the petitioners) was to cancel the registration, and the suit filed by the team is to maintain the registration. What do you think the purpose of the statute allowing the team to do exactly what it has done is?

Actually, the process to maintain the trademarks would be to appeal the case they just lost with the USPTO. Instead of doing that, they have sued the petitioners. The article does not say what they have been sued for (interference with a business model?), but since these 5 people cannot possibly issue a trademark, suing them cannot restore the trademark. All it could really do to help with the trademark is pressure them into not engaging in an appeal to be filed later – which is almost certainly the purpose.

Anonymoussays:

Re: Re: Re: Re:

“Actually, the process to maintain the trademarks would be to appeal the case they just lost with the USPTO.”

This is false. First, they have already had the issue adjudicated in front of the USPTO’s Trademark Trial and Appeal Board. Second, there is more than one option for appealing that decision: an appeal to the U.S. Court of Appeals for the Federal Circuit or an appeal in U.S. District Court. They chose the latter.

The only “claims” asserted in the complaint filed in district court are for reversal of the TTAB decision and declarations that the mark is not disparaging, etc. They are not suing for damages or making any allegations that the defendant’s have engaged in any violation of law.

Here is a link to the complaint: http://home.comcast.net/~jlw28129/Pro%20Football%20v%20Blackhorse.pdf

If you don’t know the facts or anything about this process, you might want to avoid telling other people what the process “actually” is or what “is almost certainly the purposes” of such actions. You might end up looking foolish.

Re: Re: Seriously...?

Yes, renaming the team to something related to Washington would be the smart choice, such as: the Capitals (hockey team) or the Senators (baseball team).

But at this point, arguing over the name is a matter of pride for Snyder, as in: “You’re not forcing me to back down and you can’t make me change my mind”.

Anonymoussays:

Re: Re:

They sue in Virginia which has no anti-slapp law. So there is little downside for them, other than a PR disaster. Given the way the team has been playing lately, this lawsuit could just be an attempt to distract the public from football and keep them focussed on something else.

For alternative names, I suggest the Royals, because they Royal Suck.

Paul Alan Levysays:

Sorry, Tim, I don't get it

Declaratory judgment actions are now attacks on free speech?

Tim, I don’t like Snyder or the offensive name of his football team any more than you do, but I don’t get the complaint that he chose to go to district court to establish his position that the TTAB erred. When Jerry Falwell obtained a UDRP decision compelling the transfer of Christopher Lamparello’s domain name fallwell.com, on the theory that it infringed his mark, we sought a declaratory judgment of non-infringement from the ED Va; this gave us the tactical advantage of staying transfer of the name pending the outcome of the litigation. When Wal-Mart sent a cease-and-desist letter to Charles Smith about his parody designs, we sought a declaratory judgment of non-infringement from the ND Ga instead of waiting for him to be a defendant in Arkansas (the same Quinn Emanuel team as the one that represents the Potato Skins represented Wal-Mart in that case, except that the original lead associate on the case has moved on). It never occurred to me that we were attacking Falwell’s or Wal-Mart’s free speech rights by filing these actions.

naschsays:

Re: Re: Sorry, Tim, I don't get it

Tim, I don’t like Snyder or the offensive name of his football team any more than you do, but I don’t get the complaint that he chose to go to district court to establish his position that the TTAB erred.

But why would he take the five petitioners to court over this? They don’t have any authority to overturn the decision, so why sue them?

Anonymoussays:

Re: Re: Re: Re: Sorry, Tim, I don't get it

Why sue them? Because special snowflakes with lots of money, zero creativity, and who see their wealth as an end rather than a means, have absolutely nothing else to do with their lives. Suing people who dare question their “specialness” is a welcome distraction from staring at the wall trying to feel proud of accumulating a lot of very expensive nothing.

naschsays:

Re: Re: Re: Re: Re: Re: Sorry, Tim, I don't get it

Because they are the parties that filed the initial petition, so they are the adverse parties in the appeal to overturn the decision granting that petition.

If correct, then that is messed up. We’re asking people to assume the risk of a federal lawsuit in order to make a petition. The TTAB should be the ones getting sued.

Anonymoussays:

Re: Re: Re:2 Re: Re: Re: Re: Sorry, Tim, I don't get it

I don’t understand what the problem is.

If you file a petition to cancel someone’s registration, YES, you run the risk of having to back up your claims on appeal if you want to maintain the fight. They could always just refuse to answer if they no longer want to have this fight, and go on their way.

Anonymoussays:

Re: Re:

Dan Snyder…is an asshole. There’s just no way around it. Anyone with a conscience and with any public relations sense would have already changed the team’s name AND made a huge donation to either a Native American educational fund or to an organization that fights racism.

But it appears we’re going to have to wait, because he’s stated quite adamantly that he won’t change the name and he won’t sell the team. And the other NFL owners don’t have the stones to force him to do either — which they should, via the simple expedient of refusing to schedule games against Washington next year.

Davidsays:

Re: Re:

Well, if a team like Harlem Globetrotters called themselves “The Harlem Niggers”, it would be sort of a half-defiant insider joke. A bad joke, and one that is likely to lead to tensions as the setup of the team might change over the years, but still sort of a joke.

But in football, being an indigenous American is going to make it rather harder than easier to become a fully integrated “Washington Redskin”.

It’s anything but an “insider joke”.

Anonymoussays:

Re: Re:

What about the Chicago Blackhawks? Have you noticed their offensive caricature of a Native American?
Or what about the Atlanta Braves and their offensive use of a tomahawk gesture?
The Notre Dame Fighting Irish? Really? Fighting Irish?
The Florida State Seminoles and their stereotypical Indian riding a horse and throwing a spear?

Where does it end?

No matter what you name something, there will ALWAYS be someone who claims offense.

Get over yourselves.

get over it.

WOW! – the amount of manufactured butt-hurt on this site is astonishing. I don’t find the term ‘redskin’ offensive any more than cracker – as its all buried in context. If you want to start censoring people, start with this site and see how well that goes.

all of you “butt-hurted” people only want things that YOU don’t like censored, but even SUGGEST that something that offends others be censored (pick one – abortion, LGBT issues, pretty much anything on Fox news, etc…) and the talons and ice picks come out. hypocrite much?

No one has explained how the football team name “redskins” has caused ANYONE to lose money, ability, or livelihood. If YOU take offense to it, then its on YOU. YOUR Self-Esteem is NOT anyone else’s problem but your own. If they didn’t hurt, they wouldn’t be called “feelings”. Build a bridge, and get over it. If you allow people to define you, then you’ve already lost the game.

Anonymoussays:

Re: Re: get over it.

Please explain how Snyder has been censored in any way, shape, or form. The Washington Redskins are still the Washington Redskins. He simply no longer enjoys special trademark protection. You, for example, are free to form a club called “The Moronic Fuck-wits,” but wouldn’t be able to sue other moronic fuck-wits for brand confusion. Nor would they be able to sue you… Everyone wins!

Anonymoussays:

Re: Re: Re: Re: get over it.

He simply no longer enjoys special trademark protection

If you extend this argument, you could get to the point where you revoke the “special” privileges granted by having a business license. Or a driver’s license. Or the “special” protection of having the police respond when you call them. At some point, it becomes a question of whether they are receiving equal protection under the law, as the Fifth Amendment requires.

Trademark protection isn’t “special”, it’s routine. “Special” would be a subsidy to build a new stadium.

Please explain how Snyder has been censored in any way, shape, or form

Imagine if the trademark registration of the New York Times was revoked because they published an article that some thought was racist. That would obviously be an attempt at censorship, even if the Times refused to cave and kept its name. (Yes, the Redskins case is distinguished from that one in that the trademark itself IS what is considered racist – but either way, you’re withholding a routine government benefit because you don’t like what someone is saying.)

Anonymoussays:

I don't see the problem with this lawsuit

even if it means the five activists will have to go through the legal proceedings, which will certainly involve some sort of time and monetary cost to them.

Well, the activists certainly caused some sort of time and monetary cost to the Redskins, so I’m not all that sympathetic. The activists don’t HAVE to go through the legal proceedings anyway, do they? They only have to go through them if they don’t want the Redskins to win. The Redskins aren’t asking for damages or even attorney fees; they only ask for some declarations and a reversal of the order canceling the trademark.

Snyder and the Redskins are pursuing a path specifically designed to chill speech regarding trademarks a corporation might have in place.

It doesn’t chill someone just protesting the trademark. It only perhaps chills someone actually trying to get it removed.

If the Redskins did not name these people as defendants, would the lawsuit even be valid? See this Popehat article from just yesterday, where a business was forced to name people who objected to a zoning change as defendants if they wanted to appeal the zoning decision.

And the Redskins unquestionably have the right to file this lawsuit. The TTAB refused to consider constitutional questions, and even if that wasn’t the case, administrative decisions can almost always be appealed to actual courts. Can you imagine for one second that if the Redskins had filed this and NOT named those activists as defendants, that the activists wouldn’t have tried injecting themselves into that lawsuit anyway?

The team’s lawyers apparently feel that using a lawsuit outside of its intended purpose is just fine in this case

As opposed to, say, using trademark law outside of its intended purpose to try to force a team to change its name?

Anonymoussays:

Re: Re: I don't see the problem with this lawsuit

Someone finally made the right argument. The problem here seems likely to be the same as the issue addressed in Mr. White’s post: the ol’ saw that “the law is an ass.” The district court lawsuit defenders here, however, fall into two camps, both of which miss this point entirely.

The pro-Snyder Porkrinds seem to think that denial of trademark amounts to a First Amendment violation, which is obviously BS.

The Divine Brotherhood of Law argue that everything is as it should be, because this is The System, and The System is composed of Forms. This makes more sense, but it would be nice if the Brotherhood would occasionally allow that there are Forms of Crap.

Anonymoussays:

You are misrepresenting the “Divine Brotherhood of Law” position, I believe. If there were some identifiable problem with the procedure being followed, I’d be all in favor of calling out the flaw in the system.

But the only “problem” is being manufactured by people who do not understand the system and are, therefore, misrepresenting the system.

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