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Government has no business in Redskins opinion


© St. Petersburg Times, published July 23, 2000

I concede up front that referring to Native Americans as "redskins" is deeply offensive to that community.

The term has about the worst provenance going. It gained use when bounty hunters would turn in scalps and the "red skins" of the Indians they killed for profit, instead of the full corpses.

So when Native American Suzan Shown Harjo, a Cheyenne, complained to the owners of the Washington Redskins football team about marketing "a racial slur," she had a legitimate beef.

Lucky for Harjo, she lives in a free society where there are many options for people deeply insulted by a corporate name. She could organize protests against the Redskins organization. She could call for a boycott of Redskins games and merchandise and try to ruin the team's good will in the community by portraying its owners as indifferent to charges of racism. Remember what happened to the Sambo's restaurant chain? It went from 1,200 restaurants down to one in part because civil rights groups objected to its racially insensitive name.

But Harjo went further. She sued. And that is where she lost me.

In April of last year, Harjo and six other Native Americans actually succeeded in getting the cancellation of seven of the Redskins' trademarks -- some of which the team had held for more than 25 years. In the case of Harjo vs. Pro Football, the Trademark Trial and Appeal Board ruled that the use of the name "Redskins" was disparaging to Native Americans -- too insulting to receive protection of law.

Harjo's legal strategy was a kind of pocketbook siege since the ruling doesn't mean the Redskins have to stop using the name, just that team owners no longer have the exclusive right to use it for merchandising T-shirts, caps and other stuff that bring in gobs of money.

I admit, it surprised me to learn that the trademark office is charged with denying trademark requests where the contents of the mark are deemed "scandalous" orwhere the trademark would disparage "persons, living or dead, institutions, beliefs, or national symbols." But they've been at it for decades. The Lanham Act, passed more than 50 years ago, makes the trademark office the last word on acceptable words and images in commerce.

The Redskins high-profile case brought attention to this unchecked power. Now it's time to rein it in.

There are two primary reasons for giving businesses the exclusive use of their name and logo: to protect consumers from being deceived by copycat producers and to protect the value of a business' good name. Government also has a legitimate interest in scrutinizing trademarks to make sure businesses don't use them to make false claims about their wares. But passing judgment on aesthetics and propriety shouldn't be on the list. The First Amendment protects offensive, demeaning speech, even if used by a business. And the marketplace is incentive enough for most businesses to avoid adopting racial slurs as a name.

I certainly understand why Congress -- a body that has always been overprotective of the adults it governs -- injected a decorum test into trademark law, but the Constitution demands it be removed like a bad mole.

The law draws the trademark office into making from-the-hip, indefensible value judgments with sometimes laughable results:

In the past, a trademark request for women's underwear named "Queen Mary" was denied since the association of the two was considered demeaning. A bra called "Bubby Trap" was also rejected because the name offended public propriety. However, "Libido" perfume qualified for a trademark in light of the kind of sexualized advertising typical for fragrances. Also approved was a trademark for "Moonies," a doll which dropped its pants. The panel thought the name would be perceived as referring to the doll's "moons" and not members of the Unification Church. Old Glory Condom Corp.'s trademark was also given the green light, since, in the panel's opinion, the product's depiction of the American flag on each condom was used to promote safe sex as a form of patriotism and not to bring the flag into disrepute.

Is this really the way we want government to spend its time?

The Redskins' hearing to determine whether the team name was disparaging to Native Americans included expert testimony by competing linguists, opinion polling that came to opposite conclusions and 12,000 pages of documents. The proceedings lasted for years -- a profligate waste of resources over a question the government has no business answering.

Last month the Redskins' appeal was heard in federal district court. The team is asserting that the Lanham Act is constitutionally invalid, which, of course, it is.

The Harjo case should go down in history, not as the case that gave Native Americans a win at Wounded Pride, but as the case that ended the government's ability to ever join such a battle again.

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