Protectable Trademark or Symbol of Oppression?
By Aman S.
For years, activist groups have scrutinized the Washington Redskins and other collegiate and professional teams that incorporate references to or images of American Indians in their mascots. American Indian activists have particularly taken issue with the use of the term ‘Redskins’ by the Washington D.C. National Football League team for its offensive nature as a reminder of an oppressive past. Although fans of the team insist the term actually pays homage to one of the first Redskins’ head coaches who happened to be of Sioux heritage, other activists say otherwise. "Redskin' is the most derogatory word you can use to describe a Native American," says Bill Means, founder of the International Indian Treaty Council. The term originates from the bounty-hunting days, when colonies and companies would pay settlers for killing American Indians. Scalps, called "redskins," were used as trophies and proof of killing because it was too difficult to carry the entire body, says Suzan Harjo, one of the plaintiffs in the suit. "In some cases male scalps could be bought for 80 cents, women for 60 [cents], and children for even less. This term describes a heinous act," Harjo adds. Newsweek
On November 16, 2009, the Supreme Court denied a petition for certiorari in Harjo v. Pro-Football, Inc. The suit, brought by Native American activists, contested the validity of the Washington Redskins’ trademark rights in their name and logo. The six trademarks being challenged included the image of the Native American on the helmet, the image of a spear, the script version of the word Redskins, and the name of the professional cheerleading squad, the Redskinettes. The team registered those trademarks in 1967. The plaintiffs in the case argued that the trademarks are invalid because they are “scandalous, disparaging and may bring Native Americans into disrepute or contempt.” The Lanham Act prohibits the registration of such trademarks (words, logos, symbols) that are proven to be disparaging to a group of people. 15 U.S.C. § 1052(a). Given the history behind the term ‘redskin’, the issue of whether or not the team’s trademark is disparaging would have lead to a contentious debate.
However, the Supreme Court did not address whether the trademark was disparaging but whether the activist group’s claim was barred by the doctrine of laches, a legal technicality similar to a statute of limitations. On appeal, The Washington Redskins successfully argued that the plaintiffs slept on their rights and waited too long to assert their claim. The Supreme Court affirmed the Appellate Court ruling and denied the plaintiffs’ petition for certiorari. The Lanham Act does, however, provide for the cancellation of a trademark “at any time,” when the challenged mark is found to be disparaging. 15 U.S.C. § 1064(3).
Interestingly, on April 2, 1999, the Trademark Trial and Appeal Board ruled in favor of Harjo and the American Indians on the issue of disparagement and ordered that the Redskins’ trademark registrations be canceled. Harjo, 50 U.S.P.Q. 2d 1705 (TTAB 1999). The Washington Redskins then appealed that decision to the U.S. District Court for the District of Columbia. The district court ruled that the activists’ claim was barred under the doctrine of laches.
Although Harjo and the other plaintiffs were defeated in their efforts to invalidate the Washington Redskins trademark, another group of American Indian plaintiffs will now be able to pursue their disparagement claim against the team. That suit, Blackhorse v Pro-Football, Inc., was put on hold pending the outcome of Harjo but is now expected to move forward. We’ll see how the Washington Redskins trademark protection holds up this time around. One important issue to pay attention to will be the millions of dollars that the Redskins have invested in and earned from their trademark since its registration in 1967. The team will have a strong argument that it has created its own Redskins brand through extensive marketing and commerce, which will be an important factor when the validity of the mark is analyzed by the court. Stay tuned.
