The long and winding road regarding whether Washington will lose federal trademark protection for its name and logo isn’t officially over, but it essentially is.
The U.S. Supreme Court has ruled in a case involving the name of a band (“The Slants”) that may be offensive to Asian-Americans that the guarantee of free speech under the First Amendment overcomes the government’s supposed ability to invalidate trademark rights on potentially offensive grounds. It doesn’t mean that “The Slants” or “Redskins” are or aren’t offensive; it means that the government can’t deny trademark protection based on arguments that a given term does or could offend.
The government argued in the current case and in the Washington case that the issuance of a trademark transforms the potentially offensive term into “government speech.” Justice Samuel Alito had this to say in explaining that federally-protected trademarks aren’t messages from Uncle Sam: “[I]f trademarks represent government speech, what does the Government have in mind when it advises Americans to ‘make.believe’ (Sony), ‘Think different’ (Apple), ‘Just do it’ (Nike), or ‘Have it your way’ (Burger King)? Was the Government warning about a coming disaster when it registered the mark ‘EndTime Ministries’?
The public debate regarding whether the Washington name and logo actually offends Native Americans bubbles up from time to time. I’ve personally chosen to avoid using the term in deference to those Native Americans who are actually and genuinely offended by the term. Other writers at PFT can make their own decisions. When a flawedWashington Post poll showed that only nine percent of 504 self-identified Native Americans deemed the term offensive, the fact that one in 10 find the dictionary-defined slur to be offensive was enough to persuade me to continue to refrain from using it.
If you choose to use it, that’s fine. I’m not wagging a finger at those who use it. But in the same way that the First Amendment allows the franchise to continue to choose to use the term, the First Amendment allows me and anyone else to continue to choose to not use it. If that upsets the people who choose to use it, so be it.