The Redskins’ day in court is soon to come — will the Court determine that the name is racist and offensive, and thus not entitled to trademark protection under the Lanham Act? If so, what’s a Skins fan (or its Napoleonic owner, Dan Snyder) to do? Frankly, I’m amazed the ‘Skins have held on to the name this long, and I am a lifelong fan. Part of me says it is a testament to the warrior spirit, and thus a compliment, that a football team would choose to name itself after your race or ethnic group — the Fightin’ Irish come to mind. But “Redskin” is universally seen as a very derogatory term for a Native American, so the “testament to the warrior spirit” argument breaks down, big time. It is interesting to note that the previous attack on the Redskins’ trademark was thrown out as being time-barred under the doctrine of Laches, but the current assault cites Marshak v. Treadwell, a 2001 3rd Circuit opinion which held that the law allows for trademark cancellation “at any time.” The author of Marshak? None other than current Supreme Court Justice Samuel Alito, Jr. Could be interesting . . . http://www.nbcwashington.com/news/sports/Redskins-Trademark-Battle-Goes-to-Supreme-Court-59323632.html and http://legaltimes.typepad.com/blt/2009/09/challenge-to-redskins-name-reaches-supreme-court.html
After their narrow, and somewhat uninspiring, win yesterday, Robert Henson, a virtually unknown Redskin, had some choice words for the fickle Redskin fans who were booing their team on Sunday:
In and of itself, this is not a surprising story, but it is a good object lesson on the “Power of Twitter” (and Facebook, friendfeed, myspace, etc.) For every Robert Henson, there is a college kid who gets rejected from law school because of the racy pictures he chose to post from spring break, or a high school senior who gets rejection letters by the bushel because she thought those pics she posted on myspace of her getting high with her friends were hilarious.
Even worse are the police officers, firefighters, or other public servants that face suspension, public ridicule, or worse for the racist, sexist, or otherwise totally tasteless comments they chose to share with their facebook “friends”.
Facebook, twitter, and all of these social media outlets (including wordpress blogs such as this) are manna from Heaven for a diligent adversary. In my practice, one of the first things I do is check out my clients, opposing parties, and their counsel on the internet. I am finding with increasing regularity that the trails of digital breadcrumbs are becoming both easier to find, and, quite often, very rewarding to follow. Particularly in the case of social media, such as twitter or facebook, one finds unvarnished statements and opinions that the same person would never write in a letter. Such statements are written with all of the informality of the spoken word, but with all of the permanence of the written word, and all of the exposure of the broadcast word.
My rule of thumb (which I have certainly broken) is if I don’t want my mother or my stodgiest client to read it, then I shouldn’t post it. Mom has a sense of humor (and can’t work a computer), but I always assume that clients, judges, and opposing counsel are always watching. I might sound paranoid, but, as Robert Henson has now learned, being a little paranoid in this digital age isn’t such a bad thing!