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NFL team loses trademark protection for 'Redskins'

David Hudson
First Amendment Center

04.07.99

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Seven Native American activists have succeeded in convincing a federal trademark appeals board to cancel protection for six trademarks held by the corporate owner of the Washington Redskins professional football team.

In a 145-page opinion released April 2, the board agreed with the Native Americans that the term "redskins" was disparaging and offensive enough to cancel protection for the various trademarks, which all contained the word in their registrations.

The plaintiffs filed suit in Harjo v. Pro Football, Inc. in September 1992, to challenge the federal government's granting to the National Football League team the exclusive right to profit from the term "Redskins," which the plaintiffs consider a racial slur.

The Trademark Trial and Appeal Board heard oral arguments last May. The Native Americans argued that under the 1946 federal trademark law, known as the Lanham Act, the government should rescind its granting of authority to the six Redskin-related marks all owned by Pro Football, Inc.

Section 2 of the federal law provides: "No trademark shall be refused registration on account of its nature unless it — consists of scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute."

The activists contended that the word "redskins" — which appears in the trademark of each of the registrations — "was and is a pejorative, disreputable, disparaging and racist designation for a Native American person."

The team owners argued that the team name "reflects the positive attributes of Native Americans [including] dedication, courage and pride." Attorneys for the team contended that the word "redskins" was a "neutral" term that did not denigrate Native Americans. They argued that the term was only used to refer to the football team, not Native Americans.

They also pointed out that the trademarks had been registered for many years. The first trademark, THE REDSKINS in stylized script, was issued in 1967. Three other trademarks — THE WASHINGTON REDSKINS, WASHINGTON REDSKINS and a design including a portrait of a Native American in profile, and THE REDSKINS with a design of a Native American in profile and a spear — were issued in 1974. The trademark REDSKINS was issued in 1978, and the mark REDSKINETTES was issued in 1990.

The trademark board sided with the Native American activists, writing that the word "clearly carries the allusion to Native Americans."

The board determined that the word "redskin(s) as it appears in respondent's marks in those registrations may disparage Native Americans, as perceived by a substantial composite of Native Americans."

The board concluded that "the registrations will be cancelled in due course."

The team can keep its team nickname but could lose its exclusive right to market Redskins merchandise. However, the board's decision will not take effect pending the outcome of an appeal by Pro Football, Inc. to either a federal trial court or the U.S. Court of Appeals for the Federal Circuit — the federal appeals court that hears patent and trademark cases.

Attorneys for the team say that a reviewing federal court, unlike the trademark board, will review their First Amendment claims. The Trademark Trial and Appeal Board sidestepped those constitutional arguments, finding that the board has "no authority to declare provisions of the Trademark Act unconstitutional."

Robert Raskopf, attorney for the Washington Redskins, says that the team will definitely appeal to either a federal district court or the Federal Circuit Court of Appeals. "This law is void for vagueness and unfairly restricts commercial speech," he told free!

"The law on its face does not require actual disparagement," he said. "This law is too vague because people will not know when something or some term violates the act. Virtually any form of expression might conceivably disparage someone."

However, Stephen R. Baird, attorney for the activists, said "this ruling does not implicate the First Amendment." He told free!: "As the team is quick to point out, the board's decision does not require the team to change its name. In fact, the team asserts that it won't do so. Clearly, the team's own analysis of the decision destroys its claimed First Amendment defense.

"There is no doubt that trademarks constitute commercial speech and are therefore subject to protection under the First Amendment, but that misses the more important point that the team may continue using the name even after cancellation of the registrations," Baird said. "Indeed, the Court of Appeals for the Federal Circuit has already determined that Section 2(a) of the Lanham Act does not violate the First Amendment."

"Right now the practical effect of this ruling is zero because these issues still have to be played out in the court of appeals," Raskopf said.

"Even if the ultimate outcome is adverse, the team would still have state-law protections to trademark its name and could protect itself under federal unfair-competition laws," he said.

The plaintiffs disagreed about the impact of the ruling. "This is a stunning victory for all Native Peoples," said lead plaintiff Suzan Shown Harjo in a news release. "We are witnessing a mighty thing — society changing and coming to grips with one of the last vestiges of overt, public racism."

"By not accepting what the law clearly states, they (the team owners) are now going to attack the trademark law itself," Harjo told free! " The team owners are having a hard time giving up their toys of racism. People need to treat Native Americans as human beings, not animals."

Raymond D. Apodaca, another plaintiff in the case, said in a news release: "We won big time and can do it again on appeal."

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