Daniel Snyder's habit of signing high-priced free agents who fail on the field led to a local joke about his team as perennial offseason champions. Very few think Snyder is winning this offseason.
The Trademark Trial and Appeal Board of the United States Patent and Trademark Office canceled six federal trademark registrations owned by Snyder's Washington NFL team in a divided ruling Wednesday and the team's attorney said the team will appeal. The team won on appeal in an earlier iteration of this case, but that took years. And Snyder may not have years this time.
That's because this case is a crescendo in a groundswell of public pressure to change the name that has been building for years. Snyder finds himself under withering attack by American Indian activists and half of the U.S. Senate. He is openly mocked by late-night comedians and sharp-tongued cynics on Twitter. This month, a moving TV ad in selected markets during the NBA Finals excoriated his team's name and a church group asked its faithful to boycott his team's games and gear.
For decades, controversy over the term "Redskins" simmered on a back burner. In the last 13 months — since Snyder's upper-case vow NEVER to change the name and President Obama's suggestion that maybe he should — the temperature rose. And this month, as that advertisement passed 3 million hits on YouTube and as regional United Church of Christ members framed the matter as a moral issue, the heat rose even more. Wednesday's ruling appears to put the matter at full boil.
"This is a cultural tide-is-turning moment," Christian Turner told USA TODAY Sports. He is the group director of naming, brand development at Siegel+Gale, a global strategic branding firm.
"The hits have been piling up, and at what point does that pile get big enough to tip the scales?" Turner said. "I think most people watching this see that this is directional, right? Like this will happen, that there will be a name change at some point, so why not get ahead of it and own that narrative?"
The team retains its federal trademark rights during appeal. And even if appeals courts affirm the board's ruling, the team can attempt to enforce its trademarks under state statues and common law.
Patent Attorney Rusty Briggs discusses the Trademark Trial and Appeal Board's decision to cancel six of the Redskins trademark registrations.
But an appeal is likely to be decided on fine legal arguments over whether the board's decision is supported by substantial evidence and adequately explained. The board's ruling in the earlier disparagement case was decided in 1999 and the appeal decided in 2003. The court of public opinion renders much quicker rulings.
"I don't believe they have four years" this time, Betty McCollum (D-Minn.) said. "There are going to be many people all across this country just outraged that Mr. Snyder still hasn't gotten the message yet that this is an offensive term, it is hateful speech and it has no room in such an important American pastime as NFL football."
Public pressure is boiling over. Public opinion is harder to gauge. Polling over the years has shown a majority of the country supports the team name. McCollum, co-chair of the Congressional Native American Caucus, dismisses that. "We just saw what happened to Eric Cantor in a poll," she said.
When Snyder told USA TODAY Sports in May 2013 that he would never change his team's name — "NEVER, you can use caps" — the specific question he was answering was whether he would consider changing the name should his team lose its federal trademark protection.
The team did not respond to a request for comment on Wednesday's ruling, instead allowing a statement from team attorney Robert Raskopf to speak for the organization. Raskopf said that "the evidence in the current claim is virtually identical to the evidence a federal judge decided was insufficient (in the appeal) more than 10 years ago. We expect the same ultimate outcome here."
Joe Theismann, who won a Super Bowl with the team following the 1982 season, said Wednesday it wouldn't bother him if "Redskins" was changed. Joe Gibbs, who won three Super Bowl titles as coach in the 1980s and returned from 2004-07, was more careful with his words, saying he's not able to comment on the ruling because he isn't involved.
"I have always taken a tremendous amount of pride in my association with the Redskins," Gibbs told USA TODAY Sports through a spokesperson. "When I hear the name Redskins I think of pride, courage, honor, class, and respect. I've never associated anything negative with it ever."
The reaction of two franchise icons speaks to evolving attitudes. USA TODAY Sports talked with activists and politicians and crisis communications professionals in the days before the ruling was announced to assess where they see the heated controversy headed.
McGuireWoods Consulting, the Washington lobbying firm recently hired by the team, declined an offer to speak about it.
Larry Kamer, CEO of the California-based Kamer Consulting Group, employed a football cliché to characterize the pitched battle between team and activists. "It's like the irresistible force versus the immovable object," he said. "The immovable object here is a team owner who has said never in capital letters."
DC reacts to ruling on Redskins trademark
The irresistible force is an amalgam of vocal critics that includes the National Congress of American Indians, which has been on record against Indian team names for decades, and the Oneida Indian Nation, which began a national "Change the Mascot" campaign a year ago.
Joel Barkin, a spokesman and strategist for the Oneidas with a background in public affairs and political organizing, said the campaign has not as yet asked sponsors to disavow the team name. But he hopes one will come forward.
"That would be a major story," Barkin said. "A sponsor would get more free PR off of that than a year's worth of advertising on the NFL. And they would look socially conscious."
FedEx, which holds the naming rights for the team's stadium, declined to take a stand.
"We are aware of today's ruling by the USPTO, but we are not a party to these proceedings," Scott Fiedler of FedEx media relations told USA TODAY Sports. "We have a long-standing, binding contractual commitment with Washington Football, Inc., for naming rights to FedEx Field stadium."
Snyder has argued in letters to his team's fans that the name is about history and tradition and that polling shows even most American Indians want the name to stay. Suzan Shown Harjo, lead petitioner in the original disparagement case, questions the methodology of that nearly decade-old poll.
"The Redskins are trying to make an argument based on logic, history and (polling) data," public relations expert Daniel G. Hill said. "There comes a time when arguing over data points doesn't work anymore, especially on issues of race. It has reached the point where, for me, I think it is going to be very hard for the Redskins not to eventually change their name."
Hill, president of the Washington-based public relations firm Ervin Hill Strategy, said he would not have thought this a year ago. But he senses a momentum building that looks increasingly difficult to stop.
"I don't know any Redskins fan who is personally prejudiced against Native Americans," Hill said, "so for them this name shouldn't cause any harm. But those kinds of facts don't matter as much when you get to a certain point in a public debate and they're at that point now.
"I'm not saying that I believe personally that they should change the name. I think on these types of issues, it's not a question of what a majority thinks. If you offend even a small group, in this day and age it's hard to continue with that as your strategy. That's where we are."
THE LEGAL FIGHT
The issue in Wednesday's ruling was not whether the term "redskin" is considered disparaging by a substantial composite of American Indians today. That argument appears settled, as the USPTO has refused to register such trademarks at least 12 times (including seven applications from the Washington team) on disparagement grounds since 1992.
The issue in Wednesday's ruling was whether the term was disparaging to a substantial composite during the years when the team's six federal trademarks were registered between 1967 and 1990. The board ruled 2-1 that a preponderance of the evidence showed that it was.
The team won on appeal in the original version of this case largely on the technical grounds that the plaintiffs had waited too long to file. That does not appear to be an issue this time, as younger plaintiffs filed the current case. But the district court also said that the evidence "is insufficient to conclude during the relevant time periods the trademark at issue disparaged Native Americans."
Raskopf, the team attorney, said in his statement that he thinks appeals courts will come to that same conclusion again.
The NFL did not offer a comment on the case, but league spokesman Greg Aiello sent an email that listed some of the objections made in the board's dissenting opinion. One of those said at the time one of the early trademarks was registered "there was purportedly only one dictionary with a usage label that stated the term 'Redskin' is 'often offensive,' meaning that it is not always offensive and leaving open the possibility that 'Redskins' is not considered offensive when used in connection with the name of a football team."
The question in coming weeks will be whether such fine legal arguments will carry muster when stacked against emotional appeals castigating the team name.
"From a branding standpoint today, we have a sort of shared social landscape," said Turner, the branding expert. "Cycles are run 24/7 and they can continue. The hits just keep piling up. The real question for them is at what point are they going to try to sort of be on the right side of history rather than the wrong side of the news cycle or the wrong side of the public conversation? They have obviously lost control of what the narrative is."
New York Jets owner Woody Johnson appeared sensitive about using the team name Wednesday when asked about the patent case. "Yeah, I saw that, but what I would suggest is to call the Redskins" — and here he paused — "or to call the Washington team, whatever, and let them answer those questions."
Amanda Blackhorse, the Navajo who is named plaintiff in the current case, said in a statement that "if people wouldn't dare call a Native American a 'redskin' because they know it is offensive, how can an NFL football team have this name?"
Billy Mills, the 1964 gold medal winner for the USA at 10,000 meters who is Oglala Lakota, also issued a statement.
"The U.S. Patent Office should never be used to defend a slur," Mills said. "NEVER — you can use caps."
Contributing: Nate Davis, Josh Peter, Eric Prisbell, Lorenzo Reyes and Nate Ryan