Can the Courts Force Snyder to Drop 'Redskins'?
Is the tide turning in the effort to bring about a change in the name of the Washington NFL Team? In a remarkable interview earlier this month, President Obama stated that those pressing for a change had raised “legitimate concerns” and that he would “think about changing” the name if he were the team owner.
And last month, NFL Commissioner Roger Goodell began to change his tune. Speaking of the ongoing, intensifying opposition to the “Redskins” team name, Goodell allowed that “if one person is offended, we need to listen.” Only 13 weeks earlier, in a letter to 10 Members of Congress, Goodell’s position was very different. In the letter to Congress he said the “Redskins” name is a “unifying force that stands for strength, courage, pride and respect.”
Perhaps egged on by team owner Daniel Snyder’s statement to USA Today that the team “would never change the name,” in the past several months a cascade of public officials, tribal leaders, journalists, sports writers and others in public life have come out in support of the long-standing efforts to change this racist and offensive team name.
Efforts to change the team’s name have been underway for at least four decades. In the 1970s, tribal leaders and activists approached the league and the team expressing their concerns and requesting a change to the team’s name. Over the years, pre-eminent tribal organizations have taken a strong position on the need for the team to change its name. Most recently, in February 2013, the National Museum of the American Indian (NMAI) held a symposium on the use of mascots which featured Suzan Shown Harjo, President of the Morningstar Institute, former Senator Ben Nighthorse Campbell, academics, psychologists, and others.
One longstanding effort to raise awareness and press for a name change has been to petition the United States Patent and Trademark Office (PTO) to cancel the team’s trademark registrations. The federal trademark statute (called the Lanham Act) provides that the PTO shall not grant any applications for trademark registration if the registration contains matter that “may disparage … persons, living or dead” or “bring them into contempt or disrepute.” The PTO, however, erroneously registered six of the team’s trademarks between 1967 and 1990 even though the marks contained the word “redskin,” which disparages Native Americans or brings them into contempt or disrepute.
The Lanham Act allows people injured by the use of a trademark to petition the federal Trademark Trial and Appeal Board (TTAB, a part of the PTO) to cancel improperly granted registrations. In 1992, Suzan Shown Harjo and a group of Native American leaders filed precisely such a petition. The TTAB ruled in their favor and found that the term “redskin” disparages Native Americans and brings them into contempt or disrepute. However, this holding was reversed on appeal due to a technicality. In 2009, the U.S. Court of Appeals for the D.C. Circuit ruled that Ms. Harjo and other petitioners had waited too many years after they reached their 18th birthdays and that their petitions were time-barred.
As a result, a group of younger Native Americans filed a subsequent petition to cancel the trademark registrations. Because of their younger age, their petitions should not be time-barred. These younger Native Americans are members of the Navajo Nation, Paiute Tribe, Omaha Tribe, Kiowa Tribe, and the Muscogee Nation of Florida. This case is currently before the TTAB and is captioned Blackhorse v. Pro-Football, Inc. (Filings in the case are publicly available on the TTAB web site). The TTAB held a hearing on the Blackhorse case in March; the case is now awaiting a ruling by the TTAB.
Meanwhile, parallel efforts are being made in the legislative arena. On March 30, 2013, Rep. Eni Faleomavaega (D-AS) introduced the “Non-Disparagement of Native Persons or Peoples in Trademark Registration Act of 2013” (H.R. 1278) to rescind the trademark registrations for “Redskins” and related marks.
H.R. 1278 is co-sponsored by Rep. Tom Cole (R-OK) and Rep. Betty McCollum (D-MN), co-chairs of the bipartisan House Native American Caucus, and is supported by the Cherokee Nation of Oklahoma, the Comanche Nation of Oklahoma, the Oneida Indian Tribe of Wisconsin, the Seminole Tribe of Oklahoma, the National Congress of American Indians, the National Indian Education Association, the National Indian Youth Council, the National Indian Child Welfare Association, the American Indian Higher Education Consortium, the American Indian College Fund, the National Native American Law Student Association, the Tulsa Indian Coalition Against Racism, the Capitol Area Indian Resources, the American Indian Studies-University of Illinois (Urbana Champaign), the Native American House, the Wisconsin Indian Education Association, the Native Americans at Dartmouth, the Native Americans at Brown, the National Institute for Native Leadership in Higher Education, the Society of American Indian Government Employees, the Native American Journalists Association, the Native American Finance Officers Association, the Indigenous Democratic Network, the Americans for Indian Opportunity, the Indigenous Alliance Without Borders, the International Indian Treaty Council, the First Peoples Worldwide, and the Rio Grande Native American Church.
The bill was referred to the House Judiciary Committee where a hearing would be the next step in the legislative process.
Neither the TTAB petition nor H.R. 1278 would require the team to change its name. Rather, they are alternative means to cancel trademark registrations, but the use of the team name would still be permitted. In order to bring about a change in the team’s name, it will be necessary for Native Americans and others to continue to speak up. President Obama has heard the concerns and so has the NFL. Speaking up does make a difference.
Jesse Witten and Paul Moorehead are partners in the Washington, D.C. office of Drinker Biddle & Reath law firm. Jesse is the lead attorney in the Blackhorse petition before the TTAB. Paul Moorehead is a partner in the firm’s Indian Tribal Governments Group representing Indian tribes and tribal organizations.