Redskins

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The Washington Redskins was traditionally a top-level team, having been crowned champion of the American National Football League (“NFL”) on three occasions. However, the team has been in the doldrums on the field for years; it won its last playoffs game 15 years ago and in the last decade it has delivered one disappointment after another.

Even so, it remains a popular and well-followed team (including by this writer). The mediocre present is connected to a distant, glorious past through a key element: the team’s name, logo, and colors. But the Redskins has not even had it easy in that regard.

The franchise’s constant sporting disappointments have been accompanied for some time now by a conflict that questions the team’s very identity. In past posts, we discussed the conflict surrounding the use of the “Redskins” trademark. That conflict revolved around the alleged offensive nature of the term in question, as it can have racist connotations.

The club vehemently defended its right to call itself the “Redskins.” In fact, the legal battle went all the way to the US Supreme Court, which established in a June 2017 judgment that the US Patent and Trademark Office was not authorized to cancel trademarks that, in its opinion, had become offensive. It was a long conflict that required a significant investment of time and resources, which made perfect sense for the US team.

Based on recent studies, the team is the fifth most valuable franchise in the NFL and the fourteenth most valuable sporting entity in the world, valued at over $3.4 billion. To give you an idea of the magnitude of that valuation, consider that, based on those studies, Real Madrid is valued at $4.24 billion and Fútbol Club Barcelona at $4.02 billion.

As indicated, one of the entity’s most valuable assets has traditionally been its “Redskins” trademark. In fact, the team had been using that name and its corresponding logo since July 8, 1933, becoming consolidated over 80 years not only as the key element identifying the team but also as a top-level commercial asset. Let’s imagine what the commercial use of their respective crests and names means for Real Madrid or Fútbol Club Barcelona.

In this context, the surprise came on July 13, 2020: the team announced that, after days of reflection, it had decided to cease to use the name “Redskins” and the entity’s logo. After years of legal battles and even a Supreme Court judgment confirming the trademark’s legal viability, the entity decided to walk away from the name it had borne for over eight decades (and that generated enormous income for it year after year).

No one will fail to notice that this decision has arisen from the civil movements in the United States following the tragic death of George Floyd at the hands of Minneapolis police. The racial discontent has spread to many areas, including aspects as diverse as reviewing geographical terms, whether to keep some statues or memorials in public spaces, and even discussing historical figures who were unquestionable until recently.

The paradox in this case seems obvious: while the Redskins trademark survived a taxing legal analysis, it was unable to overcome the force of social reaction against references considered offensive, from a current perspective at least.

In fact, the paradox is two-fold: walking away from the trademark did not relate to social pressures but only financial factors. As the club itself has recognized, the decision to withdraw the team’s name and logo stems from the threat by the team’s main sponsors and commercial partners, who advised that they would end their lucrative contributions to the club if the entity’s name was not changed. That is to say, the social alarm linked to an allegedly offensive name became a potential financial risk for companies that, in theory, were prepared to invest a lot of money to associate themselves with a popular sporting entity.

The case of the Redskins is not unique. The Cleveland Indians, a professional baseball club, has announced that it is considering changing the name for similar reasons to those that have led the Washington team to walk away from its trademark. The Atlanta Braves, also in the US professional baseball league, has informed that it is considering doing away with its traditional logo, which is a tomahawk (a Native American ax). Even the current NFL champion, the Kansas City Chiefs, is considering banning fans from entering its stadium dressed up or with their faces painted as Native Americans.

In view of this chain reaction, it should come as no surprise that the innately evolutionary character of public order should become an increasingly relevant element when judging the offensive nature of a trademark. It is not a new controversy. In fact, this blog has included posts on this issue, as interpreted by the Court of Justice of the European Union. However, we are perhaps seeing a fast shift toward increasingly less tolerant criteria for names with offensive connotations, which will probably lead to more limiting interpretative criteria aligned with a social view that is increasingly less tolerant toward this type of names. In fact, we have already started to see examples, including in Spain, of trademarks that have had to be updated to avoid reviews that could prove embarrassing under this new social perspective.

In any case, what is already certain is that the American football team from Washington D.C. will no longer be called the Redskins. For the moment, the club is nameless, as the alternative name chosen by the club has not yet been announced. The reason: the new name, intended to put out a fire, has started another one the scale of which is not yet known. It is reported that the new name chosen by the team from Washington D.C. conflicts with a third-party trademark. Some teams definitively have a difficult life… even after being reborn.

By Albert Agustinoy

This post is also available in: Español

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albert.agustinoy@cuatrecasas.com