On the Washington Redskins’ Name Trademark Cancellation

by Dr. Gerard Emershaw

In a 2–1 decision the Trademark Trial and Appeal Board cancelled the name trademark of the NFL’s Washington Redskins. The sole issue that was considered by the Board was whether the professional football team’s name violated Section 2(a) of the Trademark Act of 1946, 15 U.S.C. § 1052(a). This law states that “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it”:

Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or a geographical indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after one year after the date on which the WTO Agreement (as defined in section 2(9) of the Uruguay Round Agreements Act [19 USC §3501(9)]) enters into force with respect to the United States.

Therefore, the only question is whether the team nickname “Redskins” disparages American Indians. The first recorded use of the word occurred on October 9, 1813 in The Weekly Register. The article contains quotes from a St. Louis man concerning an expedition that was being led by General Benjamin Howard. The man said that this expedition was to “route the savages from the Illinois and Mississippi territories.” The man continued: “The expedition will be 40 days out, and there is no doubt but we shall have to contend with powerful hordes of red skins, as our frontiers have been lined with them last summer, and have had frequent skirmishes with our regulars and rangers.” Therefore, ‘Redskin’ was coined as a synonym for ‘savages’ in describing American Indians.

Dictionaries tend to support the view that ‘Redskins’ is a disparaging term. These dictionaries are hardly considered bastions of political correctness. Merriam-Webster states that the term is “usually offensive.” The American Heritage Dictionary calls it “Offensive Slang” and states that it is “used as a disparaging term for a Native American.” Dictionary.com characterizes it as “disparaging and racist.”  Random House Kernerman Webster’s College Dictionary calls it “insulting” and “offensive.”  Collins Dictionary calls it “taboo.”

The Washington Redskins’ trademark attorney Robert Raskopf says of the term:

It may or may not be used disparagingly, just like many other terms can. So we don’t really think there’s much to that claim, and once you cross the tiny little line that needs to be crossed and realize that we, the Washington Redskins, have made something honorable and successful and imbued that into this brand, there’s no way that anyone can say that we use that mark disparagingly. It’s a mark. What trademark law’s all about.

However, when asked by a radio host whether he would call an American Indian a “redskin” to his or her face, Mr. Raskopf hesitated before finally replying: “I understand that word isn’t in use as much as it once was. That’s not what this case is about. It’s what our word means.” If the word is not derogatory, why would Mr. Raskopf be so reluctant? Why should he hesitate to use ‘Redskin’ to refer to any and all American Indians to their faces?

The meaning of a word is determined by its use in a social context. In some instances, one can use a word to mean what he or she wishes. For example, one can coin a new use of an existing term. At some point some English user first used the word ‘winner’ sarcastically to mean not a victor but the very opposite—a loser. One can also use a word in a code context. One can imagine a CIA agent using the word ‘winner’ in e-mails, letters, or monitored speech to mean any number of things in order to get important messages to his or her superiors. However, for the most part one cannot use any and all words willy-nilly exactly how he or she wishes. In order for language to be useful as a medium of communication, the standard uses of words come to socially be understood as the meanings of these words. If this in general were not the case, it would simply be impossible for anyone to communicate using a natural language. If each and every speaker used each and every word like Humpty Dumpty—using the word to mean what he or she chooses it to mean—then a natural language simply could not exist.

Those who wish to defend the Washington Redskins are likely to appeal to poll data. For example, a September 2004 National Annenberg Election Survey poll found that over 90% of American Indians are not offended by the name Redskins. Does this matter? If it does, then it means that truth is democratic. It means that a group of people who are stoic can be the targets of slurs simply in virtue of being psychologically strong. Racial, anti-Semitic, sexist, homophobic, and other slurs are derogatory because of how they are typically used and how they have historically been used and not by how effective they are in injuring. If most American Indians are indeed strong enough not to be offended by racial slurs, this does not give everyone license to use those slurs without moral reproach. American Indians have been the victims of genocide, ethnic cleansing, imperialism, government corruption, and just about every evil of the progressive welfare state. Does the fact that they have bigger problems than the name of a mediocre football franchise with a foolish owner and an injured and overrated quarterback mean that they are not owed common decency?

The important thing to note is that nobody is making it a crime or a tort to use the word ‘Redskins.’ Nobody is violating the First Amendment free speech rights of Washington Redskins owner Daniel Snyder or anyone else. Nobody is censoring anybody or anything. While there is a natural right to property and this includes intellectual property such as a trademark, the government—for better or worse—is required in order to establish, exploit, and defend such intellectual property. 15 U.S.C. § 1052(a) is the governing law on the matter concerning the establishment of trademark in American law. It is obvious that ‘Redskins’ violates that law, and therefore, the Trademark Trial and Appeal Board was right in canceling the Washington Redskins’ name trademark. That law, like any other law, is not sacrosanct. It can be repealed and/or altered if need be. The law should be changed. While it makes sense for the federal government not to issue a trademark in a case where deception is involved, there should be no moralistic requirement for intellectual property. Were such a requirement placed on patents and copyrights, it would lead to widespread censorship and politicization of science and technology. But if the law is eventually changed, one would hope that the advocates of the change would not complain when and if some name that is a slur against their race, religion, ethnicity, gender, etc. is trademarked.

Wild Horses

by Gerard Emershaw

Wild horses couldn't drag me away
Wild, wild horses, we'll ride them some day

Mick Jagger/Keith Richards

In the wake of the recent Bundy ranch standoff, the Bureau of Land Management (BLM) is facing a wave of bad publicity. To make matters even worse, the BLM has recently been involved in a situation that has angered animal rights activists and horse lovers. The BLM rounded up a herd of horses that roamed free on federal land in northwest Wyoming and gave the horses to Wyoming state officials. In turn, the Wyoming state officials sold the 41 horses that had been rounded up to Bouvry Exports, a slaughter house in Canada, for a grand total of $1,640—$40 per animal.

Wild horses are protected by the federal government. However, the government declared that these Wyoming horses were not wild horses despite the fact that they were descendants of stray rodeo horses from the 1970s. The reason these horses were not considered wild is that they had not interbred with other wild horses.

The slaughter of horses is a big industry in Canada and Mexico, but it had effectively been banned in the United States since 2006 when the federal government ended the funding for a program of regulators or horse slaughterhouses. Congress has recently lifted the ban, and many are planning to open horse-slaughter plants around the country. There is a large international market for horse meat, which costs 40% less than beef.

Several issues are at play within the Wyoming horse slaughter story. First, the federal government has no business owning large tracts of land. In fact, owning such land is unconstitutional. The Constitution permits the federal government to purchase and control land within states only “for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” There are no “needful Buildings” in the wilds of Wyoming or in any other similar areas in other states. Even if it were not unconstitutional, the owning of land by the federal government should be opposed for pragmatic reasons. Government ownership of land leads to the spoil of the commons. Since there is no true owner, federally owned lands often fail to ruin. This is why devastating forest fires on federal lands are so common. Federal ownership of land also leads to corporatist arrangements by which politically connected corporations may use the land via a permit for purposes such as livestock grazing or oil drilling. Thus, federal government ownership of land leads to inefficient and unfair uses of the land.

If all land in the country were privately owned, then the herds of wild horses—including those wild horses which the federal government in its Socrates-like wisdom arbitrarily deems to not be wild enough to be wild—would all be privately owned. Some owners of these horses would simply allow them to roam wildly on their private lands. Some might even attempt to profit by making these lands into private preserves or parks where people could pay to observe and enjoy these horses. Other others might round up the wild horses and sell them to the highest bidder. Some of these horses would be bought by horse protection groups seeking to save their lives. Some would be bought by ranchers or the like seeking to attempt to domesticate them. However, many of the horses would likely be sold for slaughter.

This in turn raises the question about horse-slaughter in the United States. It was illegal, then it was effectively banned, and now it is legal again. Should the practice be legal or illegal in the United States? Given that slaughtering horses does not violate the natural rights of any American citizens or residents or any other human beings, it seems that the “crime” of horse slaughter is victimless. It appears prima facie that there can be no legal objection to slaughtering horses that one owns. With the price of beef reaching all time highs, more economical sources of meat are going to become highly sought after. While the morality of meat eating can be debated, the legality of it from a libertarian perspective cannot.

But from an ethical and psychological perspective, is there a line that must be drawn in terms of the consumption of meat? It is obvious that the slaughter of humans against their will for the purpose of consuming them as meat violates the natural rights of those individuals. But what about if some private entity wished to sell human meat as a Soylent Green delicacy and only made the corpses of willing human beings into meat? Should I be able to sell my body to be consumed as meat the same way that I can now donate my body to science? For many reasons, it seems unlikely that widespread cannibalism is going to occur within the human race. This is especially true in the West. Aside from the occasional Hannibal Lecter-like individual such as Jeffrey Dahmer, the vast majority of Americans have no desire to consume human flesh. However, if you craved human flesh, and I willed my body to you for the express purpose of having you feast upon my remains, it seems that the government should not interfere with this regardless of how distasteful it seems.

If the consumption of human flesh is even possibly permissible, then it seems that the same would be true of horse flesh. However, it is interesting to consider where Americans commonly draw the line. Even the most carnivorous Americans tend to believe that certain domestic animals are not to be consumer. For example, common pets such as cats, dogs, hamsters, gerbils, parrots and other companion birds as well as horses—which serve both as pets and as useful domestic worker animals. Cats have been useful for hundreds of years as mousers while many breeds of dog have proven useful as hunters, shepherds, guard animals, aids to the handicapped, etc. Some animals such as certain varieties of pigs as well as many other common farm animals are sometimes kept as pets and sometimes consumed as food. As distasteful as it may seem, there seems to be no justifiable reason why Americans should not be permitted to consume Shetland ponies, beagles, Persian cats, parakeets, hamsters, etc. However, it would be unsurprising if consuming certain domestic animals turned out to be psychologically harmful. While it may turn out that eating meat of any kind is unenlightened, it is even more likely that it says something very negative about a human being if he or she is willing to eat certain domesticated animals which are commonly friends and co-workers of human beings.