Thursday, June 19, 2014

This week’s road trip for the Angels has been an interesting one—and not for the team’s record on the field or its problems with the bullpen. It started with the Angels in Atlanta, playing the Braves, and finished with the Angels in Cleveland, playing the Indians. In between, the U.S. Patent and Trademark Office issued a ruling removing the protections for six of the Washington Redskins trademarks that has implications for both of the teams the Angels played this week. You can read the decision here

All of this comes as basketball is dealing with the Donald Sterling situation.

Normally, I am not a fan of the politically correct thought police. I generally think that it’s a waste of time to try and force people to think “correctly” and if anything, does more to reinforce the negative viewpoints. 

But in this case, I think the court got it right. The government should not be in the business of protecting disparaging trademarks that are on their face offensive to specific groups of Americans.

In no way do I want to call Daniel Snyder, or any of the fans of the Redskins racist. This isn’t about that. The issue here is whether or not the government should be in the business of protecting a property ownership interest in an offensive term.

On its face, it’s clear that the term is offensive. No one today would think of walking up to a Native American and calling him/her a “redskin” just as no one today would walk up to an African American and call him an “N***”, a Jewish person a “Kike” or an Hispanic person a “brown skin”. No one today would think to name a team with any of those terms.

Sure, in the past, some terms were not considered as offensive as they are today. And, in general, yes, I believe people are way to oversensitive on the subject of race. I do not want to see Tom Sawyer and Huck Finn banned because of the writing. Nor do I want to see the Mikado banned or redacted because it contains the n-word. Works of art should be seen as they were, and people can judge them accordingly. They should be seen within the context of the times that created them. People need to stop seeing racism everywhere simply because of their world view. 

But the trademarks owned by the team are a different subject. They aren’t works of art. They are assets, given value by the protections afforded them by the government—the government for all Americans. In that sense, the government has no business being in the business of disparaging one group for the economic benefit of another.  

The decision by the Trademark Trial and Appeal Board (the court within the U.S. Patent and Trademark Office) isn’t saying that the Redskins can’t go by the term “Redskins”. If Snyder wants to call the team that, he can. If the fans call the team that, they can. And I sure don’t want a warning label slapped on next year’s football season prior to every Redskins game that fans might be exposed to racist language (or some PSA warning like that). We are adults and free—and freedom for all means sometimes being exposed to things from others that we may find offensive. 

The best way to deal with racism is to disown it and diffuse it. By invalidating the trademarks, the court is doing just that. If the team and fans want to continue it, they can. They just can’t own it. 

Over time, the marketplace will sort this out. How offensive the term is can be determined by the public’s response. At some point, the economics will either persuade Snyder to change the name or to keep it. Advertisers and broadcasters can decide if the marketing with the team’s name justifies any potential stigma associated with it. If the economics become so unbearable for the league, then they too can take action to force a change, just like the NBA is doing with Sterling. 

The Redskins can still protect its image and name in the courts. It will just have a harder time without the protections afforded by the trademarks. It will then be up to the team to try and prove in court that the unlicensed item is in fact a copy of their exact images and terms and not based on other work. This could result in outcomes that the team does not want as the team would have to distinguish its images from similar ones which may or may not be racist. Legally arguing how one set of images and names are disparaging while similar ones are not is a difficult needle to thread.

I’d like to propose a simple test to determine whether or not some of these team names should be kept. The test should be whether or not a new team would be so named with a comparable name from other groups. Basically, if the name's categorization is applicable and acceptable to all, then it should be kept. If not, then it should be changed. 

So this brings us back to the teams the Angels played this week. Should they lose their trademark protections as well? In the case of the Braves, I don’t think so. In terms of the Indians, I’m not sure.

As a noun, “braves” is defined to mean either “a brave person” or “a warrior, especially among North American Indian tribes.* As such, it is comparable to “Spartans” for Greek warriors, “Berserkers” for German warriors,  “Samurais” and “Ninjas” for Japanese warriors, "Assassins" for Persians, etc. I don’t think any group would have a problem with those terms, so the Braves should be allowed to continue.

As for the Cleveland Indians, I’m not so sure. Since it refers to a entire race of people, it could be seen as a lot more offensive. Would a sports team today form and be called by a specific ethnic group? I think not. I can’t imagine a team today being called the “L.A. Caucasians” or anything resembling that. So, at some point, the Cleveland Indians may wish to reconsider their team’s name and logo. I don't believe that they should be forced to change. Instead, let the court of public opinion help them decide.

It would be different for the Cleveland Indians if they were named after a specific tribe such as the Chicago Blackhawks or Florida Seminoles. In that situation the team could license the name from the tribe and a decision by the so-named group could be made. I would have no problem if a team gained permission from a tribe through such a deal because the aggrieved group could weigh the benefits and detriments of the deal. However, with a name like the Cleveland Indians, it would be impossible to gain that kind of permission from all Native American tribes and all Native Americans so in the end, it be deemed offensive. 

The term “redskin” is offensive because it specifically refers to a perceived physical difference between people. As such, our government has no legitimate interest in protecting a property interest in language and images that are offensive to specific groups of Americans. While this may cause a financial impact on the value on the team, and may impact several other team names in different sports, it’s better for our government not to take an active stance that supports one group’s finances at the expense of disparaging other groups of Americans. There are many ways for teams to deal with this ruling and they have the freedom to continue on as is. But I would rather live in a country that doesn’t treat racially offensive language as an asset to a business.

Love to hear what you think!

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