Wednesday, September 25, 2013

Part II: Blood is Thicker Than a Solution of Water, Urea, and Creatinine, Alternatively Titled "I Realize That I Have Something in Common With Daniel Snyder"

In Part I of this piece I told the story of the time my son kicked my dick so hard I pissed blood. I concluded with the realization that "Just like Dan Snyder, I piss burgundy and gold!" This realization coupled with some comments last week about the use of the word "Redskins" got me thinking about some legal wrinkles in the analysis.

Here's some quick background that will make my upcoming rant more understandable. You can register a trademark with the federal government if you use that mark in commerce in connection with goods or services. In particular, you register the mark with the United States Patent and Trademark Office (USPTO or PTO). You submit an application and an examiner decides whether to register the mark. You have a back-and-forth dialog with the examiner but if he won't give you the mark you can appeal his refusal to the Trademark Trial and Appeal Board (TTAB). If you don't like the TTAB's decision you can appeal that to the US Court of Appeals for the Federal Circuit (CAFC). After that you're shit out of luck (SOL), unless the Supreme Court of the United States (SCOTUS) will hear the case but that's highly unlikely. If you don't like someone else's trademark you can challenge it in the TTAB, and the owner of the mark has the option to remove the matter to the US District Court for the District of Columbia (DDC). You an appeal the DDC's decision to the Court of Appeals for the District of Columbia Circuit (CADC), and again you're probably SOL if you don't like their conclusion.

In 1992 a group of seven Native Americans petitioned the TTAB to cancel the REDSKINS trademark because they found it disparaging. There were many proceedings before the TTAB, DDC, and the CADC. In the end six of the Native American petitioners' claims were dismissed based on a laches defense -- the mark was registered in 1967 and they didn't sue until 1992. Simply put, they sat on their claim for too long. (I can't believe I'm writing about laches here again.) The seventh petitioner was only a year old in 1967 so he couldn't have sued when the mark was first registered, but he turned 18 in 1984 so he waited 7 years and 9 months to file his petition. Through various intellectual convolutions, DDC decided that he wasn't reasonably diligent in bringing his claim and CADC affirmed. Here's the CADC opinion. There may have been more opinions after this one but the gist is that these folks waited too long to complain that they were offended by the use of the name REDSKINS.

The obvious solution to this problem is to find a bunch of Native American kids with the same birth date and file a petition on their behalf on the day they turn 18. This is why people hate lawyers.


In fact I think someone has already started to put such a group of petitioners together. But what happens next? Well, the TTAB or DDC have to decide if the mark is "immoral, deceptive, or scandalous" under Section 2 of the Lanham Act. What does that mean? That means the petitioner must demonstrate that mark is shocking to sense of truth, decency, or propriety; disgraceful; offensive; disreputable; giving offense to conscience or moral feelings; or calling out for condemnation.

How the hell do you do that? Sometimes it's easy, like when you have a smutty mark. CAFC recently affirmed the TTAB's refusal of "COCK SUCKER" which was intended to be used on chocolate lollipops shaped like roosters. Apparently the target audience was students at the University of South Carolina and Jackson State University because they both have gamecock mascots. Seriously, read the opinion.


"COCK SUCKER" is clearly vulgar and I don't know why CAFC needed 13 pages to reach that conclusion but I'm not a judge so what do I know. Similarly, the following smutty marks have been refused by CAFC and/or TTAB:

1-800-JACK-OFF
JACK-OFF
A photo of a man and a woman with the man's penis exposed, used to promote swinging
CUMFIESTA
CUMGIRLS
PUSSY
SEX ROD (opposed by the Red Sox in part because it was in the same font as their trademark)
YOU CUM LIKE A GIRL
DE PUTA MADRE
BULLSHIT
W.B. WIFE BEATER
TWATTY GIRL
GRANDMA SCHITTHED'S OUTHOUSE BROWN
GRANDPA SCHITTHED'S INKY STINKY PALE ALE
SCHITTHED'S
DICK HEAD'S

But they allowed "BIG PECKER BRAND" because "use of the term 'pecker' meaning penis is rapidly becoming archaic" and just isn't offensive anymore. So start throwing that term around the office and if anyone reports you to HR tell them to take it up with the TTAB.

In the context of disparaging marks, the TTAB applies the following test:

(1) what is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and
(2) if that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group.

How does this play out in practice? Oddly. For example, in In re Squaw Valley Dev. Co., the TTAB concluded that the marks "SQUAW" and "SQUAW ONE" were offensive when used to sell clothing or retail store services in the field of sporting goods or equipment. They reached this conclusion after reviewing a plethora of dictionaries, articles, state laws, and other sources showing that "SQUAW" is an offensive term for a Native American woman. However, they decided that "SQUAW" was not offensive when used to sell skis, ski poles, ski bindings, and other ski equipment because Squaw Valley is a ski resort and it's often referred to simply as "Squaw." Again, people hate lawyers for a reason.

Similarly, the mark "HEEB" was refused (by a panel of judges named Seeherman, Holtzman, and Kuhlke) as disparaging to Jews. But by contrast, "MAFIA BRAND" and "JUNIOR M.A.F.I.A." (Biggie!) were allowed because "MAFIA" isn't disparaging to Italians ... according to two panels of judges named Chapman, Hairston, and Bottorff; and Simms, Walters, and McLeod, respectively.

Sometimes reading cases is fun: "BLACK TAIL" was used to sell noodie magazines and it was allowed because:

As the Court said in Mavety, and as the present record shows, the word “tail” can have a variety of meanings as applied to an adult entertainment magazine. In particular, the dictionary definitions show that “tail” can mean “buttocks,” and there is no indication from the dictionary definitions that such a meaning would be considered vulgar.

Having reviewed the issue of BLACK TAIL magazine which is of record herein, we find it difficult to believe that anyone, seeing the mark used for such a publication, would consider the phrase to refer simply to buttocks. The photographs in the publication are photographs of nude and scantily-clad African-American women, and while many of the photographs feature the rear ends of these women, a large number feature their breasts and genitalia, often showing the women using their fingers to further expose themselves. However, our principal reviewing Court stated quite clearly in Mavety that, in view of the existence of an alternate, non-vulgar definition of “tail,” the Board, without more, erred in concluding that in the context of an adult entertainment magazine, a substantial composite of the general public would necessarily attach to the mark BLACK TAIL the vulgar meaning of “tail” as a female sexual partner, rather than the admittedly non-vulgar meaning of “tail” as rear end. 31 USPQ2d 16 1928. Given that opposers have not provided any further evidence as to the meaning of “tail” than was present before the Court during the appeal, we cannot conclude that it is the vulgar meaning that the relevant public would attach to the mark, nor can the Board substitute its own judgment for that of the perspective of the relevant public.

Can you imagine reviewing back issues of Black Tail magazine in your office with a valid work-related reason?!? I need to get a job on the TTAB! Out of respect for the women of G:TB, this is the only Black Tail photo I will post here.


So what does all this mean for "REDSKINS"? My hunch is that it will be canceled. In order for a mark to be offensive "a substantial composite of the referenced group" must feel disparaged. Here are some data from the TTAB proceeding involving the REDSKINS mark:


As we already saw, "SQUAW" was not allowed in some circumstances (i.e., when it wasn't clearly tied to Squaw Valley) because it was found to be offensive, but less than half of Native Americans (47.2%) surveyed felt offended by it. So you don't need to demonstrate a consensus to establish that a mark is disparaging. In fact, the judges who denied the HEEB mark noted that "While case law does not provide a fixed number or percentage, it is well established that a 'substantial composite' is not necessarily a majority." Given that 36.6% of Native Americans surveyed (i.e., more than 1 in 3) and 46.2% of the general population are offended by "REDSKINS," I can easily see the mark being canceled (once the stupid laches shenanigans are avoided). The "HEEB" opinion suggests that if a sub-population within the group in question is offended, then the "substantial composite" requirement is met, and a smart lawyer should be able to parcel out a particular sub-population of Native Americans to win cancelation.

To that point, Rick Reilly clearly isn't a trademark lawyer. There was an LA-based rap group called N.W.A. that was popular in the late 80's/early 90's. You may have heard of them. According to their Wikipedia page, N.W.A. stands for "N***az Wit Attitudes." N.W.A. registered the "N.W.A." mark with the USPTO. They did not, however, register "N***AZ WIT ATTITUDES". Clearly they aren't offended by the word "n***az," and neither are countless other emcees who throw the word around, so in Rick Reilly's world what's the problem? In fact, many people have tried to register marks containing this word but none have been allowed. And obviously the NAACP would win if they petitioned the TTAB to cancel a mark containing this word. So just because some Native Americans don't mind calling themselves "REDSKINS" doesn't mean that the term isn't offensive to other Native Americans. Or perhaps to put too fine a point on it, what does Rick Reilly think would happen if they changed the team name to the Washington Niggaz? Chris Rock pondered this previously but I can't find the video.

Of course, even if the federal registration of the REDSKINS mark gets canceled, Snyder et al. can continue to use it and can probably even enforce infringement of the mark in state court. But can you imagine how shitty Snyder would look if a panel of federal appellate judges decide that "REDSKINS" is too racist a word to receive federal protection but he continues to use it nonetheless? No one can be that tone deaf.

I joked yesterday that they should become the Washington Hematuria but I did a google image search and found nothing that would look good on a helmet. So here is a handful of suggestions.

WASHINGTON WASPS - tons of them in Northern Virginia and they'd love to rock "WASP" hats with plaid shorts and Topsiders. They can keep the colors too.


WASHINGTON VICTORS - hail to the victors, hail victory. The song writes itself. And it needs to be rewritten.

WASHINGTON RATTLESNAKES - they can keep the "R" trademark and the colors, and this particular snake is found in Maryland:


WASHINGTON GIBBSES - how fucking dope would this look on a helmet?


WASHINGTON RHINOS - tough as nails, they keep the "R", and no one else uses it. Sure, there are no rhinos in DC but how many Native Americans do you see in the District?

My work here is done. Next week I'll solve another major American crisis that arises in G:TB's comments.

35 comments:

rob said...

that's quite the thematic juxtaposition. well done.

and there may not be rhinos, but there are rinos. just ask ted cruz.

mayhugh said...

Whitney - responding to your comment in the last post. I absolutely remember the Cruz call. It was the first thing I thought about when RGIII's play was reversed and they called it a fumble. The guy was going down voluntarily. Calling such plays a fumble seems to go against the whole promotion of safety - encourage guys to stay up, take more hits from 250 pound men.

zman said...

Shiano benched Josh Freeman for rookie Mike Glennon who appears to be related to Shawn Bradley.

http://espn.go.com/nfl/player/_/id/15837/mike-glennon

rob said...

my boss just scheduled a meeting from 5-6 on friday. that seems normal.

rob said...

fallon & timberlake, at it again:

http://www.theatlantic.com/technology/archive/2013/09/the-more-you-know-fallon-and-timberlake-make-an-anti-hashtag-psa/279974/

Clarence said...

Excellent work, Zman. The only point I'd choose to contradict would be the assertion that "No one can be that tone deaf" in reference to Daniel Snyder. I believe he can.

And I hate snakes.

zman said...

Speaking of CAFC, the Senate just confirmed Todd Hughes 98-0, making him the first openly gay federal appellate judge.

zman said...

If I had a daughter I would support her in anything she wanted to do, including cheerleading. But I would be a little bummed out if she appeared on TV hoisting a placard emblazoned simply with "COCKS." Call me old fashioned I guess.

Greg said...

The W&M Women's Sports teams used to be called the "Squaws".

Danimal said...

your boss rob, is a cock unless the meeting is at your local del frisco's.

zman said...

Did W&M play in Squaw Valley?

rob said...

i prevailed upon my boss to reconsider. he's not an idiot, so he did. meeting is now on monday afternoon. i wield a mighty scimitar of logic.

Danimal said...

plus you probably have an hoa meeting at that time, no?
hashtag insert something here

rob said...

#that'showwedo

Clarence said...

If we want to keep the R, we could just be the Washington Riggins.

Danimal said...

OR....change it to RED SKINS, as in apples. move the team a hair west, near winchester. problem solved.

rob said...

that's a winner, right there.

it occurred to me the other day that you'll get to wear your riggo jersey every day next year after you turn 44. that's certainly a silver lining.

rob said...

indeed, danimal. they already train in loudoun county, which might as well be winchester. 'cept for the lack of mullets and inbreeding.

zman said...

I've been to Loudoun County and it isn't exactly a hotbed of cosmopolitanism. In fact it has some bumfucky aspects.

Mark said...

Can't the Bucs just fire Schiano now? They're just delaying the inevitable at this point.

rob said...

we have to leave a buffer between ourselves and winchester, z.

Mark said...

Reports are that Florida DT, and probable (well formerly) first round pick is out for the year with a torn ACL. This Gator season is a nightmare.

Mark said...

Martina Hingis seems pretty great http://tinyurl.com/oaqzx73

rob said...

how do people that work from home not gain 30 pounds from the constant snacking? i'm at home today - friday because we're having some repair work done, and i can't stop raiding the pantry.

Clarence said...

Pantry Raid!!!!!

rob said...

i would write a post mocking ted cruz's buffoonery, but i'm too confused. he's a genius, working in the medium of obfuscatory parlimentary dipshittery.

zman said...

Cruz is clearly insane. But if you read only his background before reaching the Senate, any big law firm in the country would hire him in an instant, possibly without even making him interview. Another reason why people hate lawyers.

rob said...

he's not insane at all. he's working from a position of pure, unadulterated self-interest and playing to the increasingly calcified republican base. his actions are extremely rational. that they're also completely counter to the national interest is secondary.

zman said...

He stood and talked for 21 hours ... but the Senate will still vote on whether to continue the resolution so his pseudo-filibuster achieved nothing. That's insane. Maybe it's a shrewd way to gain attention, but anyone with half a brain will realize it was a pointless act.

rob said...

pointless in terms of its impact on the outcome of the debate, sure. not pointless at all in positioning cruz as the one true conservative.

in unrelated news, i'm shocked that ray lewis would criticize the ravens' lack of leadership. no self-interest there whatsoever.

Clarence said...

Back in Ray Lewis's time, no Raven ever found himself involved in any criminal or dangerous post-game situations. It's true.

zman said...

"But when you talk about what's going on off the field, that's the most important place where leadership steps up."

Well said.

rob said...

today is my 14th wedding anniversary, a fact i forgot until this very morning. in a stroke of extremely good fortune, my wife also forgot. this is either a sign of our happy old married couple status or of our rapidly-impending dementia.

Mark said...

Since you didn't get our wife anything for your anniversary, ou should give Dominique Easley one of your ACLs. It's the right thing to do.

T.J. said...

Viva Las Gheorghies (PT)