Damn, kids. So much law shit creeping into our sports shit, you'd think I'd be popping on here more often to explain to you plebes how the world works, but I gots stuff to do. I'll break down my thoughts on the Bills trust soon and how the revelation by Mark Poloncarz that the trustees who decide on the Bills sale may have a "fiduciary duty" to sell to the highest bidder is the most obvious-as-fuck revelation since Mike Harrington revealed he likes Soft Batch cookies and tall glasses of warm milk. NO FUCKING WAY! Our media fails us, again, if for no other reason that that it took about two months for someone to actually consider the legal obligations in play with the Bills and that perhaps irrelevant is the shared hope of proving our eternal devotion to the Bills trustees so that they'll be overcome with a certain sense of civic pride and sell the team to Jim Kelly for pennies and leave us all in a land of bliss and tailgate blunts and shotgunned beers in perpetuity.
BUT THAT RANT IS FOR ANOTHER DAY.
I fucking love justice. I love it in all its forms and I love it when the people given the power to seek it through judicial process actually find it. Justice is fucking great.
Rarely, it seems, is the journey to justice a simple task. Somewhere along the way - and I'll assume it was way fucking back because people have been shitty forfuckingever, basically - the concept of justice became bastardized and co-opted so as to mean something uniquely personal. The meaning of justice co-mingles with each of our personal ideas of right and wrong and, more to the point, our personal desire to feel good - personally good - about outcomes. Justice becomes about getting our way, though rarely do we stop and take a thorough account of how many different interests and desires are competing for predominance. Rarely do we appreciate that sometimes justice produces arguably shitty outcomes, or outcomes that piss some of us off, or outcomes that suggest we should reform our system of justice in subtle or substantial ways ... and all of that is generally ok. You are not entitled to getting your way all the time. In fact, a just system might be one that ensures you don't.
All of which is to say that if you're looking at what the U.S. Patent Office did and you're angry about Free Speech or Dan Snyder's liberty or the storied tradition of a fucking football team, well, TOUGH. FUCKING. BREAKS. This went down in exactly the way it should have ... perhaps even a decade or two late. This is American justice. OUR American justice. And it's fucking beautiful. Get on board.
Some truths for you to chew on, if you're so inclined:
- The U.S. Patent and Trademark Office did this, ultimately, because five Native Americans filed a petition in 2006 and litigated it to fruition. Without the petition, there is no trademark revocation. Someone with standing - i.e. a personal stake in the issue - had to step up to the plate so as to achieve this particular relief. This is not the work of Democratic senators, as some pissants have whinged over the past day. This is legal process being exercised by Americans and American judicial process - in this case, the Trademark Trial and Appeal Board of the federal agency legally authorized to oversee trademark registration - going through the mechanics that lead to a result. So, to sum up: STOP BLAMING EVERYTHING ON THE POLITICIANS YOU HATE BECAUSE IT MAKES YOU LOOK LIKE A PETTY IGNORANT PIECE OF SHIT.
- The law relating to the registration of trademarks specifically contemplates people filing petitions for the cancellation of trademarks. This shit happens and it's ok. Word is Snyder has ":Washington Warriors" registered already, so anyone feeling bad for him can blow me. He's going to be fine.
- The petitioners in this case, as their fundamental argument, claimed that the trademark was improperly registered since it violated the terms of 15 U.S.C. § 1052, which basically says that trademark registration should generally be granted unless, as is relevant here, 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." YOU DON'T SAY. That seems really on point here. Let's keep going.
- It bears mentioning that this is the second case to kick around on this issue, the first having been dismissed on the basis of a laches defense. Stay with me now, I'll talk you through it.... The doctrine of laches basically says that someone can't unduly delay litigation, etc., where the delay prejudices the position of the opposing party. As applied to the prior Redskins case, the D.C. Circuit Court held that the petitioner unduly delayed bringing the petition to cancel the Redskins trademark and that the delay prejudiced the Redskins organization's defense of the case, and also caused economic prejudice. In other words, basically, the Redskins are already making so much fucking money now and had a financial interest in keeping the trademark, it would be unfair to make them change their name and stuff. Genius stuff from the Court of Appeals there.
- Of interest to some may be that the prior case also included a separate argument for cancelling the trademark on the grounds that both the term itself and the use of Native American imagery was scandalous to the general public and that the Court should apply the Indian Trust Doctrine. That doctrine, generally, holds that the federal government has a special relationship with American Indians, borne out of the fact that the United States was founded on Manifest Destiny and de facto genocide, and American Indians are thus considered wards of the state. I mention this only to remind us all how absolutely fucked American history is and how fucked it is that America's FUCKING SEAT OF GOVERNMENT has a football team named after a slang for the people that we fucking murdered to make the country in the first place, and we're in a second litigation to get the trademark revoked and it might even get overturned on appeal, thus confirming again that, fucking hell, we are the worst.
- The issue of whether the petitioners validly stated a disparagement claim that might cancel the trademark was a two step inquiry for the board. The first step seeks to define the meaning of the trademark as used by the Redskins. The second step asks whether the meaning defined in step one is a meaning that may disparage Native Americans. Note the subtle language I italicized earlier ... the question is whether the meaning of the trademark may disparage Native Americans. This is super relevant. Internalize it. Use it to lawyer people at the water cooler.
- The first step of the inquiry is pretty fucking obvious, as the decision of the board lays out: the trademark, by its absolutely clear and intended nature, refers to Native Americans. There is no other meaning of the Redskins trademark. Look at their logo. Look at the historical imagery used by the team. The team basically conceded this.
- The second step is where shit gets fun because, as noted above, this issue isn't about the team's intention to disparage Native Americans. It isn't about whether the trademark, in fact, disparages all Native Americans or whether all or even most Native Americans consider it disparaging. The issue, and it takes its language and scope directly from the federal trademark statute, is whether the trademark has the tendency to, perhaps?, disparage Native Americans. This is a fucking cake walk at this point. God Bless law and order judges and their adherence to the plain meaning of Congressional actions, amrite conservatives?
- The board refers to three types of cases where a trademark uses a derogatory word: (1) innocuous word turned disparaging because of use by trademark holder; (2) disparaging word turned innocuous by use in completely different context, such that there really is no disparaging meaning; (3) disparaging word used with no malicious intent, per se, though the derogatory meaning remains intact because the use of the trademark is still associated with the original derogatory meaning. That third category of cases is where this one lies. Redskins is offensive because it's a Native American slur, and Dan Snyder's continued use is offensive because he STILL USES IT TO REFER TO NATIVE AMERICANS. This shouldn't be hard.
- The board thoroughly disregards the "honorable intent" of the Redskins organization as irrelevant to the issue of whether the term is disparaging. The critical issue is whether a "substantial composite" of Native Americans consider the term to be disparaging. Well, what then is a "substantial composite?" It need not be a majority of Native Americans, according to the board, and frankly, that has to be right. We know this is fucked up, right? Do we really need to take a vote centuries after we didn't take one and instead just took their land, lives, and resources? Jesus Christ, this shouldn't be hard.
- In doing the arduous, perhaps-overkill-but-that's-how-you-lay-down-smack-proper work of assessing whether the term "Redskins" is sufficiently disparaging enough to merit cancellation of the trademark, the Board goes through a hefty analysis of expert reports, letters from concerned parties, a National Congress of American Indians' resolution in support of the petition to cancel the trademark, and other evidence concerning the use of the trademark. It's fascinating stuff and makes clear the substantial history of Native Americans objecting to the use of the trademark and considering the trademark to be disparaging. It is a history that Snyder et al. have tried to sweep under the rug through marginalization and, even in the context of this litigation, arguments that claim only a "handful of individuals" truly object to the trademark. The National Congress of American Indians represented 30% of Native Americans at the time of their resolution against the trademark. Only a "handful of individuals?" Nah, b.
- Hey do any of you nerds remember when I mentioned laches above? What of it now, then? THIS: "It is difficult to justify a balancing of equities where a registrant’s financial interest is weighed against human dignity. To apply laches to this type of claim contemplates the retention on the register of a mark determined by the Board to be a racial slur, in blatant violation of the Trademark Act’s prohibition against registration of such matter, merely because an individual plaintiff “unreasonably delayed” in filing a petition to cancel. ... If plaintiffs are created every day as individual members of the referenced group mature to age 18, the laches defense will never yield the registrant of a racial slur the repose it seeks." Boom. Every day that this trademark persists is another day for us to get this horribly, dumbfuckingly wrong.
- ADDENDUM: Please be advised that this is not about free speech. Snyder can call his team whatever the fuck he wants. But if he wants protection of the federal government and its resources to protect his trademark and turn away counterfeit goods and permit him to sue people who infringe on the copyright, well, HE HAS TO FOLLOW THE FUCKING LAW. So call your squad Redskins all you care to, hoss. But don't come to our government asking for it to bend its rules just because you and your idiot supporters stomp your feet real hard. Fuck.
This was a great victory for justice, both because I agree with the result and, even more to the point, the result was achieved through careful analysis and application of clear legal standards. In that sense, it is unassailable. The statute's wording is crystal clear and the result unavoidable. Laws are laws and you don't get to disagree on principle - particularly such vague principles as the tradition of a football team's name - without looking a bit petty.
If you're on the wrong side of history on this one, well, there's still time to punch yourself in the dick and come out into the light. We have to start getting things right, folks, and while there is a long list of other shit that might affect your life in more discernible ways and you want the government to get cracking on that first, why can't we deal with the truly obvious shit while we're on our way? Acts of good faith and progress are not mutually exclusive. We don't need to choose between doing the right thing on this issue and doing the right thing when it comes to health care, social security, corporate welfare, foreign policy, drug policy reform, human rights or whatever other issues you care about. Let's do what we can when we can. This ... THIS ... is a thing that got dealt with and got dealt with via our shared system of justice. It is a great thing.
As for the case itself, there will be an appeal, of course, and the practical ramifications of the decision won't truly take effect until that plays out. Unless, of course, the NFL and Snyder take a moment to do the right thing as the Trademark and Patent Office has done. So, let's cross our fingers for justice and the good people seeking it out.