For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Tuesday, 17 September 2013

Crowdsourcing a Brand New Name

The IP Kat pauses on the field
to ponder offensive sports team
trademarks and logos.
The IP Kat tends not to comment on sports programs or traditions, especially when it comes to the curious traditions found in American sports.  But the IP Kat does sometimes make an exception, and has decided to do so today to comment on a growing issue for several American sports teams, most notably the Washington Redskins football team.  [Merpel notes that the Redskins play American football, not footie.]  The issue, inspired by this BBC article:  What should a team do when its brand is considered offensive?  

Traditionally, sports teams in the US are named after frightening wild animals or other similarly intimidating mascot.  [Please don’t ask this Kat to explain the selection of her alma mater, New York University, of the name “The FightingViolets” for its sports teams.  Despite the team name, the mascot is now a Bobcat.]  For better or worse, a significant part of American history includes the acquisition of land (in some cases peacefully and in many others through battles) from Native American tribes.  American settlers, in their early accounts of interactions with Native American populations, depicted the Native Americans as violent, “red-skinned” warriors. 

Unfortunately, that image, now recognized as inaccurate and insensitive, pervaded American culture.  It also impacted naming conventions for local sports teams.  The Washington Redskins, an National FootballLeague (NFL) team, and the Atlanta Braves, a Major League Baseball team, are just two examples in major league sports.  There are also countless grade schools whose sports teams are named the “Chiefs” and whose mascots are Native American chiefs in full, feathered headdresses.  The NFL team based in Kansas City, Kansas is called the Kansas City Chiefs – its logo is an arrowhead and the team plays its home games at Arrowhead Stadium. 

The current logo of the
Washington Redskins - soon
to be a collector's item?
Though these names have been used for many years, US culture and consciousness has changed over time.  The public recognizes the offensiveness of the Native American references in sports, especially in connection with the term “Redskins,” which was used (by varying accounts) as a reference to the skin color of Native Americans or, worse, as a reference to a hideous practice by western settlers of skinning the skulls of captured Native American tribesmen.  As a result, the owner of the Washington Redskins has been pressured for years to change the team’s name to something less offensive.  But with established trade marks and a highly recognized franchise, the team owner, Dan Snyder, has been reticent to rebrand.  In fact, he proclaimed, “We’ll never change the name.  It’s that simple.  NEVER – you can use caps.”  On the other hand, the objections are now reaching a crescendo and even die-hard fans of the Washington NFL team are beginning to acknowledge that the team is likely to succumb to a name change in the near future.  According to the BBC, several journalists have ceased referring to the team as the Washington Redskins.  Instead, they omit the Redskins name and just reference the team by location. 
This is a prime example of how shifting cultural norms can affect trade mark law.  A term or name that was not previously considered sufficiently offensive has become offensive to a large enough portion of the public to make the name potentially unregistrable.  The Lanham Act, which codifies US trade mark law, sets forth the various reasons why a mark will not be accepted for trade mark protection, including a mark which "consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute."  This Kat wonders whether the Washington football team could successfully register a trade mark for “Redskins” today, or if the USPTO would refuse the registration on the grounds that the mark consists of immoral or scandalous matter, or that it brings a group of persons into disrepute. 

Speaking of dodgy nicknames...
The Brooklyn Dodgers were
nicknamed "The Bums".
Does the name really matter anyway?  The team owner might rightfully be worried about rebranding.  Most companies must invest large sums of money to rebrand successfully and to ensure that its loyal consumers understand that the new brand is just a new name and not a change in origin, quality or consistency.  However, when it comes to sports teams, these considerations are generally irrelevant.  A fan may have an emotional attachment to the team name and logo, which may be emblazoned on his favorite shirt that he has worn to watch every game for the past decade.  But despite the emotional attachment, fans are more loyal to a team for its location.  This Kat’s grandfather grew up watching the local New York baseball team then known as the Brooklyn Dodgers.  When the Dodgers moved to Los Angeles, California, he shifted his team loyalty to the New York Yankees so that he could support a hometown team.  I don’t know any New Yorker who is an LA Dodgers fan solely because of the fact that the team historically played in NY.  It seems unlikely that a Washington Redskins fan would suddenly not support the team merely because Mr Snyder changed the team’s name from the Redskins to something considered less offensive.  A Washington fan will always be a Washington fan, especially if he continues to live in the state of Washington, District of Columbia.  [This Kat knows European footie fans understand this deep-seated loyalty.]  [Update: A slip of the keyboard!  The Washington Redskins are located in Washington, DC, not the state of Washington.  Is it obvious this Kat is not a football fan?]
Notwithstanding Mr Snyder’s proclamation, this Kat suspects that Mr Snyder’s biggest concern is the financial health of the organization.  If revenues from the sale of licensed team merchandise decline as fans opt not to wear apparel featuring logos they find offensive, Mr Snyder may finally have a strong incentive towards changing the name. 
Are there any examples outside the US of brands whose names or logos have become offensive as cultural norms shifted?

18 comments:

Anonymous said...

Your post shows a number of errors in logic.

The purported ban on Redskins paraphernalia was attempted and failed miserably. Point in fact is that only a very small minority [ouch, pardon the pun] find the name offensive. Most everybody else simply do not associate the name with any type of slur or denigration.

Second, the team can easily maintain the symbol regardless of FEDERAL trademark protection. Sure, they may want to add something and create a hybrid log wherein the new item has FEDERAL trademark protection, but the rule (if enforced) would only remove FEDERAL trademark protection and would not ban the use.

To any actual (American) football fan, this whole thing is nonsense and the word of advice to the whiners is to NOT have such thin skin - no matter what color it may be.

Anonymous said...

I think you've missed the point. The name is arguably a racial slur. That's the point. The point is not whether "a very small minority find the name offensive".

A majority thinking that something is not wrong does not make that something right.

MaxDrei said...

Not sure whether it is decisive whether a football fan finds it offensive or not. The visually prominent paraphernalia is worn by young children and other immature people, in families in which the child might well be the only such fan.

Anybody here from a country with a native population: Australia say, or New Zealand. The Maori have a reputation as warriors that is celebrated even today. But how about the Aborigine? How many Aborigine Rugby Teams are there?

Seems to me these Trademarks in the USA are not derogatory or denigrating. On the contrary. They are borrowing from legends of native American valour rather than defeat. So the extent to which native Americans could be offended strikes mwe as limited.

Anonymous said...

Positive use of a native name/term is almost certainly acceptable to all. Not so sure that the term "redskins" passes that test, though.

Anonymous said...

I suppose some might be offended that not only does the paleface steal all the land but adds insult to injury by expropriating for himself the paraphernalia of the native warrior chief. What if I, a couch potato obese sports fan, go out in public wearing, as opposed to the Chief's head-dress of feathers, the medals of the hero of the war in Korea (or Vietnam or Afghanistan or Iraq)? How many folks would that offend?

Miri Frankel said...

Thank you all for your comments! It is clear that this issue is one about which there are high passions.

It's true that the team may never legally have to change its name. But at some point, its Public Relations department should step in and ask the team owner (if it hasn't already):
-Do you want your players to walk through protests at every away game?
-Do you want to lose the sale of even a few tickets or merchandise because of protests over the team name?

A sports team should unify its players and its fans. The only upset it causes should be on the field. This issue is generating enough controversy that many people (whether a majority or not), including fans, journalists and 10 members of the US Congress, have called for a name change. Shouldn't that lead at least to serious consideration? It's certainly a PR issue for the team, if not a legal issue.

Anonymous said...

Anonymous @8:39

No, I did not miss the point. In fact you missed the point that language and meaning should not be held hostage to a vocal minority. Where do you stop at what any (small) group considers to be a slur?

The fact of the matter is that the term itself does NOT mean a slur by those who use it.

As to "But at some point, its Public Relations department should step in and ask the team owner (if it hasn't already)" - I call BS.

Stop passing off your views as what "must be." This is the type of political correctness that masquerades as 'right' but is merely censorship of what 'someone' else thinks 'should be.'

You don't have to like it. That is fine. You don't have to buy the jerseys. That too is fine. But stop trying to force your view on others. As I said - a boycott of the goods has been tried and failed miserably. What does that tell you?

Anonymous said...

"Are there any examples outside the US of brands whose names or logos have become offensive as cultural norms shifted?"

Well the Robertson's "golly" is an obvious example ...

Jeremy said...

Anonymous 14:25
I well remember the Robinson's Golly from my own childhood. I used to collect Robinson Gollies and at that time had no idea that they were supposed to be representations of black folk; the abbreviation "golly" was neutral enough, though it was short for "gollywog" -- the final syllable of which was used quite widely to describe non-Brits of various descriptions, and not specifically blacks.

The metamorphoses that have shaped the title and content of the once-popular children's book Little Black Sambo are also worth noting http://en.wikipedia.org/wiki/The_Story_of_Little_Black_Sambo

Mark said...

Small point, but I too remember reading Little Black Sambo as a small child, and remember the puzzling reference to butter being called ghee in India (the tigers turned into butter/ghee in the story). It was several decades later that I made the connection as many Indian recipes involve the use of clarified butter (ghee). This stuck in my mind far more than the name Sambo.

Sambo is racist by today's standards, perhaps, but I would rather that Indians decide this point, better than jumping to conclusions. Patronising might be a better description.

Some Brits regard Love Thy Neighbour as the worst kind of racist 1970s TV sitcom. One of the white characters frequently uses the term "Nig nog". Imbued with this collective sense of guilt, I was astonished 2years ago, while giving some legal training in Lagos, to hear a Nigerian lawyer lament that TV channels were no longer making good traditional sitcoms like - you guessed it - Love Thy Neighbour.

Anonymous said...

Really interesting, thanks​!​

I think that you would be really interested in some recent research that I have come across about crowds and citizen science.​ ​In particular I feel you may find these two emerging pieces of research very relevant:

- The Theory of Crowd Capital
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2193115

- The Contours of Crowd Capability
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2324637

Powerful stuff!

Anonymous said...

The Redskins debate seems to have parallels to the current debate being played out in the UK newspapers with regard to Tottenham F.C. and the chants of their supporters. My understanding, taken from Wikipedia is that the chant was taken up by the home supporters to show solidarity with a group of their supporters who were being abused by racist elements of the opponent's support. Now, the P.C. brigade are saying that the chants should be stopped, despite their apparent anti-racist context.

Anonymous said...

Some of the worst censorship in the U.S. is committed in the name of P.C. and the place of this 'control' are the university campuses where thoughts are meant to be explored.

Hypocrisy is more insidious than racism.

Roufousse T. Fairfly said...

... especially when it comes to the curious traditions found in American sports.

What do you find more baffling? American Football or cricket?

Are there any examples outside the US of brands whose names or logos have become offensive as cultural norms shifted?

The French Banania belongs to the same league as your Aunt Jemima or Uncle Ben's.

It represents in my eyes a toxic accumulation of colonial memes. The smiling figure of the pidgin-speaking ("y'a bon Banania") African bumpkin is used to represent a mixture concocted from sugar, bananas, and cocoa, the quintessential colonial staples.

He is dressed in the uniform of a Tirailleur Sénégalais, a kind of (more) expendable cannon fodder harvested overseas and whose bowels were liberally spilled in the muddy trenches of the Great War for "Civilisation".

Trademarks were originally filed in 1912, including a figurative one in Germany that was maintained until recently. The soldier figure was invented in the patriotic atmosphere of 1915, and is still used today in an even more stereotyped fashion.

Anonymous said...

I find the branding survey offensive and highly slanted - you should take it down and renounce your evil ways.

Really? Only one keep answer and that with an extreme rationale?

Why bother getting such slanted answers?

Miri Frankel said...

@Roufousse - Cricket baffles me more, but mainly for a lack of trying to understand it. :)

@Anonymous 12:51 - A PR department is specifically hired to field questions or complaints from the public. Regardless of whether Washington will ever change its name, I am sure that its PR department is trained and prepared to answer questions from the media and from the public about this topic. If its directive from the ownership is to defend the name, it will be prepared to do so in a polite and sympathic manner so as to diffuse as much animosity from dissenters as possible. PR departments are also trained to advise management if these types of controversies are becomming too strong a distraction from the operation of the business so that management could decide whether a change in course is warranted. It would be naive to think the Washington team hasn't undergone these internal discussions - but clearly their opinion remains that they will keep and defend the name, at least for the time being.

Anonymous said...

For a renowned stickler for accuracy Jeremy you should know it's Robertson's not Robinson's ... and I vividly remember as a child having an old 45 with a song about "Black Sambo" ... "Living in the jungle, that's me, underneath the spreading Banyon tree"!

Anonymous said...

To Anonymous 21:32: As I see it, the first two options are both varieties of "keep", while the last three are "drop".

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