{"id":21960,"date":"2014-01-11T00:23:59","date_gmt":"2014-01-11T05:23:59","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=21960"},"modified":"2020-02-14T14:22:51","modified_gmt":"2020-02-14T20:22:51","slug":"redskins-and-hog-rinds-trademark-denied","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2014\/01\/redskins-and-hog-rinds-trademark-denied\/","title":{"rendered":"Redskins and Hog Rinds–Trademark Denied"},"content":{"rendered":"

\"Pork<\/a>The United States Patent and Trademark has recently refused to register the trademark \u201cRedskins Hog Rinds\u201d for a California food company on the grounds that the mark is \u201cdisparaging\u201d and therefore prohibited by Section 2(a) of the Lanham Act, the federal trademark statute.<\/p>\n

The ruling, handed down on December 29 by an attorney-examiner, can be appealed. The decision concluded that there was no reason to deny registration of the mark except for the fact that it was disparaging to Native Americans. The examiner reached this conclusion on the basis of dictionary definitions that identified the term as disparaging and by the opposition to the continuing usage of the term \u201cRedskins\u201d by a number of Native American groups, including the National Congress of American Indians and the Oneida Nation, as well as articles about Indian activist opposition to the term that appeared in the Washington Post<\/em> and the magazine, Indian Country Today<\/em>.<\/p>\n

This is not the first time that the term \u201cRedskins\u201d has been ruled disparaging. In recent years the Washington Redskins football team has unsuccessfully attempted to register variations on its famous mark.<\/p>\n

Presumably, if the applicant in this case had attempted to register the mark \u201cIndian Pork Rinds,\u201d it might have succeeded (if no one else had previously registered that mark).<\/p>\n

Why is the term \u201credskins\u201d deemed to be so much more offensive than other names for Native Americans? How did it become the R-word?<\/p>\n

There is little doubt that many people today believe that the word “redskin\u201d is a racial slur that has no place in public speech. However, while the historical treatment of Native Americans in culture was admittedly degrading in most respects, there is little evidence that the word \u201credskins\u201d was perceived as an inherently offensive term for Native American before the late 1970\u2019s or early 1980\u2019s.<\/p>\n

Traditionally, the word \u201credskin\u201d was viewed as a synonym for Indian, and its usage did not carry the negative connotations that have long attached to ethnic and racial slurs like \u201cchink,\u201d \u201cwetback,\u201d \u201ckike,\u201d or \u201cnigger.\u201d Until the 1970\u2019s, sportswriters covering teams with any type of Indian nickname used the terms \u201cIndians,\u201d \u201cBraves,\u201d and \u201cRedskins\u201d interchangeably without any apparent awareness that the third was more offensive than the first two.<\/p>\n

As the Smithsonian\u2019s Ives Goddard has demonstrated, prior to the twentieth century, Native Americans frequently used the adjective \u201cred\u201d in reference to themselves. In fact, the term \u201credskin\u201d appears to have originated as a translation of a Native American term used to differentiate Indians from other Americans.<\/p>\n

English language dictionaries in use as recently as the 1950\u2019s and 1960\u2019s reflect no acknowledgement that the term \u201credskin\u201d was understood as disparaging to Native Americans. For example, the 1952 edition of the Universal Dictionary of the English Language<\/em>, described \u201credskin\u201d as a \u201cNative American Indian, a Red Man\u201d (p. 981), but makes no reference to the word being offensive. The American College Dictionary<\/em> (1956 ed., p. 1016); The Grosset Webster Dictionary<\/em> (1957 ed., p. 1016); and Webster\u2019s New International Dictionary, Unabridged 2nd Edition<\/em> (1957 ed., p. 2088) all define \u201credskin\u201d as a \u201cNorth American Indian,\u201d again, with no indication that the term was considered offensive.<\/p>\n

In The American Heritage Dictionary of the American Language<\/em> (1969 ed., p. 1092), produced more than a decade later, the same definition is given, but with the qualification only that the term was \u201cinformal.\u201d<\/p>\n

In fact, the Merriam-Webster Company, the country\u2019s leading publisher of \u201cserious\u201d dictionaries, did not indicate that the term was objectionable until 1983, when it added the cautionary phrase \u201cusually taken to be offensive\u201d to its previous definition, \u201cA North American Indian.\u201d (This definition appeared in the 1983 editions of Webster\u2019s Third International Dictionary<\/em> and Collegiate Dictionary, 9th Edition<\/em>.)<\/p>\n

In contrast, the same dictionaries from the 1950\u2019s and 1960\u2019s clearly indicate that the word \u201cnigger\u201d is understood to be offensive and derogatory. The comments so indicating range from \u201ccolloquial, contemptuous\u201d (Universal Dictionary<\/em>, p. 774) and \u201coffensive\u201d (American College Dictionary<\/em> p. 820) to \u201csubstandard, now chiefly contemptuously\u201d (Webster\u2019s New International<\/em>, p. 1651) and \u201cvulgar\u201d (American Heritage Dictionary<\/em> p. 887). The Grosset-Webster Dictionary<\/em> omitted the word altogether, presumably because it was in such bad taste.<\/p>\n

Today, of course, the understanding is quite different. Contemporary dictionaries clearly identify the term \u201credskin\u201d as disparaging. The Online Oxford Dictionary<\/a> describes it as \u201cdated and offensive.\u201d Similarly, Merriam-Webster\u2019s online dictionary <\/a>identifies it as \u201cusually offensive,\u201d while the online Thefreedictionary<\/a> defines it as \u201cused as a disparaging term for a Native American,\u201d and further classifies the term as \u201coffensive slang.\u201d Moreover, the word has almost completely disappeared from everyday usage, except in reference to sports teams with the \u201cRedskins\u201d nickname.<\/p>\n

So, how did the word \u201credskin\u201d become so offensive so relatively recently? First of all, there is nothing remarkable about a word\u2019s meaning changing over time, especially when it has racial or ethnic connotations. In the 1950\u2019s, it was widely believed that African-Americans preferred to be called \u201ccolored\u201d and \u201cNegro,\u201d and at the same time considered the label \u201cblack\u201d insulting. By the end of the 1960\u2019s, the situation had definitely been reversed, with only those who were insensitive to racial issues continuing to use the traditional terms.<\/p>\n

Moreover, beginning in the late 1960\u2019s, the American Indian civil rights movement campaigned to convince other Americans that most of the images of Native Americans in American popular culture were wildly inaccurate and insulting. No image was more stereotypical than the image of the Plains Indian \u201con the warpath,\u201d which was a staple of film and television westerns.<\/p>\n

Because \u201credskins\u201d was often the western movie\u2019s term of choice for Native Americans and because westerns usually depicted Native Americans an \u201cuncivilized savages\u201d (even if heroic), the term redskin took on a secondary meaning as \u201csavage Indians.\u201d At least for those Americans who came to regret the traditional depictions of Native Americans, \u201credskin\u201d became an unpleasant term and a reminder of the dominant culture\u2019s insensitivity to the feelings of its aboriginal counterparts.<\/p>\n

A second explanation comes from the fact that the word \u201credskin\u201d obviously uses a color to describe a racial group. While \u201cblack\u201d and \u201cwhite\u201d became acceptable terms in the 1960\u2019s (and are still widely used), during the same era the practice of referring to Asians as \u201cyellow\u201d fell into disfavor and came to be viewed as an expression of anti-Asian racism. Social pressure to avoid \u201cyellow\u201d references in regard to Asians may have had an impact on public attitudes toward defining Native Americans as \u201cred.\u201d<\/p>\n

In addition, there has always been something slightly disparaging about the \u201cskins\u201d component of the word \u201credskins.\u201d \u201cSkins\u201d can connote images of animal pelts cut away from the body by fur hunters. While there is absolutely no basis to the frequently (and irresponsibly) repeated claim that the term \u201cRedskins\u201d once referred to the hides of Native Americans which could be exchanged for a bounty, there is something a little unpleasant about the similarity between \u201ccoonskin\u201d and \u201cdeerskin\u201d on the one hand, and \u201credskin\u201d on the other.<\/p>\n

Although the California applicant in the Redskins Pork Rinds case seems to believe that the term has market value, it seems unlikely that any newly created sports team in the 21st century will take the name \u201cRedskins.\u201d Pork rinds and other rural consumption items notwithstanding, the primary issue is whether or not sports teams with the name \u201cRedskins\u201d whose use dates back to a time when the term was not perceived as offensive should be allowed to continue.<\/p>\n

One could argue, however, that the real issue with the Redskins is not whether or not the name is especially offensive. When George Preston Marshall named his football team the Braves in 1933 and then changed it to Redskins the following year because of a switch in stadiums, he had in mind a plan to exploit the linkage between the team and Native Americans.<\/p>\n

However, his plan had nothing to do with intentionally insulting Native-Americans by choosing a degrading name; the plan was to exploit the Native American as a symbol of patriotism and ferocity in battle. For similar reasons, many non-Indian U.S. military units in World Wars I and II adorned their helmets with Native American symbols.<\/p>\n

It seems to me that the focus on \u201cdisparagement\u201d missing the real issue with Native American team names, since it is hard to argue that \u201cIndians,\u201d \u201cTribe,\u201d \u201cBraves,\u201d or \u201cChiefs\u201d are inherently disparaging names. The real question, at least as I see it, is whether the appropriation of Native American symbols, even with good intentions, is an inappropriate usage of someone else\u2019s cultural property.<\/p>\n

The NCAA has framed the issue in this way by recognizing a de facto property interest in tribal names that can be \u201clicensed\u201d to sports teams (like the Florida State Seminoles), if the tribe wishes to do so. Since no one can \u201cown\u201d generic terms like Redmen, Indians, Chiefs, and Braves, those names are off-limits to colleges.<\/p>\n

Special thanks to Marquette University Law School alum Daniel Friedman for calling the Pork Rinds ruling to my attention.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The United States Patent and Trademark has recently refused to register the trademark \u201cRedskins Hog Rinds\u201d for a California food company on the grounds that the mark is \u201cdisparaging\u201d and therefore prohibited by Section 2(a) of the Lanham Act, the federal trademark statute. The ruling, handed down on December 29 by an attorney-examiner, can be […]<\/p>\n","protected":false},"author":30,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[7,122,57,63],"tags":[],"class_list":["post-21960","post","type-post","status-publish","format-standard","hentry","category-intellectual-property-law","category-public","category-race-and-the-law","category-sports-law","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/21960","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/30"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=21960"}],"version-history":[{"count":1,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/21960\/revisions"}],"predecessor-version":[{"id":28854,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/21960\/revisions\/28854"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=21960"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=21960"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=21960"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}