Federal Judge Calls for Cancellation of Washington Redskins’ Trademark Application

7/9/2015

On Wednesday, Judge Gerald Bruce Lee of the U.S. District Court for Eastern Virginia has affirmed the federal Trademark Trial and Appeal Board’s 2-1 decision last year that the Washington Redskins’ nickname and logo are offensive to Native Americans. Last year, the board voted that the trademark violated terms of the Lanham Act, which forbids granting trademarks for names that “may disparage” or bring people into contempt or disrepute. Judge Lee agreed with the board’s majority vote, rejecting the team’s defense that the large majority of Native Americans polled on the subject were not offended by the team’s name. In his ruling, however, Judge Lee noted that a Webster’s Dictionary from 1898 included the term “often contemptuous” while defining the name, years before the team came into existence. Despite the ruling, Lee was clear that the organization would be able to continue using the name and selling apparel with the name and logo until the federal appeals process was exhausted. Redskins’ president, Bruce Allen, has already confirmed that the organization will appeal, saying in a statement, “We are convinced that we will win on appeal as the facts and the law are on the side of our franchise that has proudly used the name Washington Redskins for more than 80 years.”

The trademark battle had been initiated by five Native American activists, most notably, Amanda Blackhorse, a Navajo who has led large protests outside of the Redskin’s stadiums for years. After last year’s ruling, the team sued Blackhorse and the other four activists arguing that the Lanham Act conflicts with the team’s First Amendment rights. The team also contested that the five activists did not prove that there was significant opposition to the name when the team filed four trademark applications between 1967 and 1990. The leader of the Change the Mascot Campaign and member of the Oneida Indian Nation, Ray Halbritter, countered Allen’s argument saying, “If something happening decades ago was reason alone to continue doing it, then America would still have Jim Crow laws and Confederate flags would still be flying on top of state capitol buildings.” Challenges to the name and logo have taken place since the early 1990’s, and Lee referenced the numerous challenges from Native American leaders as evidence that the name was disparaging despite polls showing that the majority of Native Americans do not find the name offensive. In his ruling, Lee also referenced a recent Supreme Court decision that allowed the state of Texas to bar a specialty license plate application featuring the Confederate battle flag filed by the Sons of Confederate Veterans. Allen announced that the team will file an appeal in the U.S. 4^th Circuit Court of Appeals in Richmond, where he “expects a victory.”

Despite the ruling, and even if the team loses the battle in the Supreme Court, it will still be able to use the name and logo by filing for a state-level trademark. The team will, however, lose many of the legal protections that are afforded to the name through the federal trademark process. Most notably, it will allow copycat merchandisers to sell clothing and other gear with the Redskins name, logo, and colors without assuming legal liability. Last year, in concurrence with the appeals board ruling, Congress attempted legislation proposing that the NFL be stripped of its non-profit status over use of the name; however, the league abandoned that status voluntarily earlier this year. The original battle began in 1992, when Native American activist Suzan Shown Harjo led a group in filing a petition to the appeals board to change the team’s name. The board ruled in Harjo’s favor in 1999; however the Redskins won a federal appeal, with the court citing insufficient evidence proving that the name was offensive. Blackhorse and the other four individuals filed their petition in 2006, prior to the final appeals ruling in the former case. In the most recent appeals board ruling, the panel cited, like Lee, the dictionary’s depiction of the name as racist as well as citing that the National Congress of American Indians has declared the name racist. Despite the controversy surrounding the name, the Redskins, much like the entire NFL, has seen its franchise value more than triple since 2000. Despite the potential loss of legal protections and a fair degree of bad publicity due the court challenges, it is unknown whether or not the team will ultimately change their name and logo given the franchise’s large-scale popularity.

Sources:

CNN – Jill Martin and Sophie Tatum

ESPN – ESPN News Service/Associated Press

Washington Post – Ian Shapira