Robert Raskopf, the Washington Football Club’s trademark attorney, is taking Bill Clinton’s “It depends on what the meaning of the word is, is” to a whole new level when it comes to representing Dan Snyder in his appeal against the U.S. Patent and Trademark Office.
The USPTO had recently revoked Washington’s trademark on its team name after it had found the name to be disparaging to Native Americans.
The lawyer representing Washington’s NFL team was on The Sports Junkies WJFK Radio and he was asked if he’d call a Native American a “redskin” to their face.
Raskopf responded:
“Well, that’s interesting that you would say that,” he said at last. “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.”
Ah, the old “you may THINK the word means this, but it actually means this to us” defense.
Raskopf continued: “And if you look at those dictionaries that are in this (trademark) case, in evidence, every one of them defines ‘redskin’ as — almost every one of them, maybe one doesn’t or two — as ‘a North American Indian.’ It’s how you use it, it’s not whether you use it. You need to put the word in context. Once you get the context, this case falls apart in seconds for them. And that’s where we’re standing. We’re standing on that ground.”
When it comes to the subjectivity of language, of course context matters. The US Patent Office addressed this specifically in its decision:
The question is only as to the second prong, whether the term is disparaging… In other words, respondent’s alleged honorable intent and manner of use of the term do not contribute to the determination of whether a substantial composite of the referenced group found REDSKINS to be a disparaging term in the context of respondent’s services during the time period 1967-1990, because the services have not removed the Native American meaning from the term and intent does not affect the second prong. If it is found to be disparaging during the relevant time period, then the Trademark Act mandates removal from the register.
Dan Snyder can say that his team’s name can mean whatever he wants it to, but it is not up to the US Patent Office to accept that at face value. The Patent Office issued a whole 177 page finding that lays out specifically how the word was found to be disparaging during the relevant time period. Dan Snyder can’t simply shake all that off with a simple “Well, I don’t mean it that way.”
Nevertheless, that appears to be the route that Raskopf is going to take in Washington’s appeals process.
“That’s right,” Raskopf said. “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.”
So, the term is a slur unless Dan Snyder says it because Dan Snyder chooses to define the term differently. It’s telling that this is the best defense that Washington could buy.
And if the team name “may be” construed as a slur, why fight so hard to keep it?
