A federal judge in Northern Virginia on Wednesday agreed with a 2014 US Patent and Trade Office ruling that the Washington NFL franchise should lose the trademark protections over its name and logo because they disparage Native Americans. Judge Gerald Bruce Lee’s opinion is another win for a suit filed nine years ago by a group of Native American activists who find the team’s name offensive.
While recent public opinion has shown a diminishing majority of Americans who support leaving the football team’s name intact, the case decided today was over whether the term “redskin” was offensive in 1967, when team filed six now-invalidated trademarks. The Patent Office’s Trademark Trial and Appeal Board ruled last year that the trademarks were inelgible following a complaint by Navajo Nation member Amanda Blackhorse and other activists.
Blackhorse’s case appeared to be following a similar trajectory of one filed in 1992 by Suzan Shown Harjo. While the trademark board also agreed with Harjo’s petition, the federal district court in DC overturned that trademark cancellation. Blackhorse’s case has now gone one step further in the federal court system, and her group’s lead attorney, Jesse Witten, is confident today’s ruling will hold up under additional scrutiny.
“I don’t think this opinion could have been written any better for us,” Witten, a partner at Drinker Biddle & Reath, says in a phone interview.
Witten says the case, Pro-Football, Inc. v. Blackhorse (referring to the Washington team’s business name), included new evidence from the 1960s and 1970s that was not introduced during Harjo’s case. Among the evidence was a 1962 scholarly article about the Haskell Institute—a Native American vocational school in Kansas—that found that students there resented being called “redskins,” and the University of Utah’s 1972 decision to stop calling its athetic teams “Redskins,” because the name was offensive.
More crucial, Witten says, might have been a 1972 meeting between the National Congress of American Indians and the team’s then-president, Edward Bennett Williams, in which the NCAI requested the team change its name. Although the Washington team’s name remained intact, some of its imagery, including cheerleader uniforms and the fight song, were toned down following the summit, hinting at some concession that the franchise’s name and logo are offensive. During the district-court case, Witten introduced an affidavit and testimony from Leon Cook, a member of Minnesota’s Red Lake Chippewa tribe and the NCAI president who brokered the meeting with Williams.
“We had to go back in our time machine,” Witten says. “How it is viewed in 2015 is important for other issues.”
The case does relate closely to contemporary public opinion, however. A poll last October commissioned by the Oneida Indian Nation, a New York tribe that has been waging a public-relations campaign against the Washington team, found while that 72 percent of people find the name acceptable for a sports team, nearly 80 percent agree “redskin” is an insulting thing to call a Native American. The team, led by owner Dan Snyder, has countered with a campaign of its own, including a not-always-successful “Original Americans Foundation” that aims to improve the franchise’s standing in Native American communities and a Capitol Hill lobbying effort. But many DC political advisers believe it is not a matter of if Snyder will change the name, but when and how.
“This lawsuit has galvanized public attention and created a lot more consciousness about this issue and today’s ruling will further that,” Witten says.
Don’t go fabricating that knockoff merchandise just yet, though: Pro-Football, Inc. still has state trademark protection from Virginia, and its federal trademark protection will remain intact if it appeals Lee’s ruling to a higher federal court, which Witten expects it will do, a process that could take up to another year and a half. But Witten expects another win down the road.
“They’ve fought this so hard it’s hard to imagine they won’t appeal,” he says. “We’ve been at this for so many years that whether they appeal or not we see the light at the end of the tunnel. I think forevermore the name is tainted.”