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Washington�The king of the mountain takes a long time to fall, said Suzan Shown Harjo, who is Cheyenne and Hodulgee Muscogee. But once the king�by which she means the National Football League in general and the Washington Redskins, in particular�does fall, she said, “the others come tumbling behind.” Harjo is the lead plaintiff in an 11-year legal battle to cancel the federal registrations of seven trademarks of the Redskins. The term “redskin” is the most derogatory one used for native people in the English language, she contends. “This is just a horrible name with heinous origins and it has to be done away with,” she said. The football team, she added, “can call themselves any old racist thing they want, as they do. What we’re saying is the federal government should not reward such behavior with the exclusive privilege of making money.” In 1999, a three-judge panel of the Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office agreed. It ordered the cancellation of trademarks, including the team’s name and helmet logo. Rejections of proposed new trademarks are fairly common, but some experts said this was the board’s first order to cancel an existing one. The board found that the name “Redskins” was disparaging to Native Americans and violated 15 U.S.C. Section 1052(a) of the Lanham Act, which prohibits the registration of immoral, scandalous and disparaging marks. Harjo and six other American Indian plaintiffs are in a D.C. federal court where Pro-Football Inc., owner of the trademarks, has appealed the ruling. Loss of federal protection for the trademarks could translate into a multi-million-dollar loss from exclusive sales of Redskin products, unless the team changes its name. A decision on summary judgment motions is expected shortly from Judge Colleen Kollar-Kotelly, who has placed most documents in the case under seal, apparently to protect financial data. Pro-Football Inc. v. Harjo, CA No. 99-1385. Broad implications “This case has much broader implications than the sports world,” said intellectual property lawyer Paul E. Loving of Davis Wright Tremaine. “There are other trademarks that have racially negative express meanings or implications,” he said. “You can only do so much through boycotting and protesting. A court order is stronger than a bullhorn and will be heard by a lot more people.” Intellectual property expert Jack Achiezer Guggenheim, formerly of Hale and Dorr of Boston, has written that the case “will help define the role of trademark registration as either a commercial tool, a social monitor, or an amalgamation of both.” Sports team names invoking Indians are common. There are the Atlanta Braves, the Kansas City Chiefs and the Florida State University Seminoles. Labels such as Warriors and Savages also show up. Responding to complaints, some teams have changed their names. Among the first was Stanford University, which changed its name from Indians to Cardinal in 1972, the same year the University of Massachusetts changed from the Redmen to the Minutemen. In 1994, St. John’s University dropped Redmen for the Red Storm. “We already have won this issue in societal terms,” said Harjo, president of the Morning Star Institute, a nonprofit Native American advocacy group. “When the first Indian mascot fell in 1970 at the University of Oklahoma�Little Red�that took decades and decades. There were more than 3,000 schools and professional teams with native references. Today, there are fewer than 1,100. “We accomplished the retirement of well over half the native references in sports in America in less than 30 years. Schools are more willing than pro sports to do something because it’s right and it eliminates potential or actual injury. All those changes took place with no litigation, but with meetings and discussions.” In the 1970s and 1980s, Harjo said, Indians and lawyers discussed how to address the problem in pro sports. None of the suggested approaches seemed quite right, she said. In the early 1990s, she got a call from Stephen Baird, then a lawyer with Minneapolis’ Dorsey & Whitney. Researching a law review article, he had come across her name. He asked to interview her. “He basically had two questions: Why did we reject the Patent and Trademark Board as a forum, and why did we reject the Lanham Act as a cause of action,” she said. “The answer to both was: Who knew? So the interview very quickly turned from him interviewing me to me interviewing him.” Dorsey & Whitney took on the registration challenge pro bono. After Baird left the firm, Michael A. Lindsay, an antitrust litigator, became the lead lawyer. In making their case to the trademark board, the firm had to prove that the marks were disparaging to Indians when they were registered, starting in 1967. “We called upon a broad range of evidentiary sources,” said Lindsay. “How often in your career are you going to use in a single case a historian, a linguist, an educator and a consumer scientist, in addition to the widely varied, yet uniform experience of seven Native Americans who have experienced the term throughout their lives?” Lindsay said one of the more memorable experiences came in a deposition of one of his clients who had the term “Redskin” hurled at him as a racial epithet�”dirty fucking redskin”�after the client had made a particularly good tackle in a football game. “We have never made any bones about it. We would like them to change their name,” said Lindsay. “We think it is the most appropriate thing for them to do. It should have been done in the 20th Century, but the 21st Century is not too late.” The team argues that in fact it is too late to challenge the marks, one of which was registered nearly 40 years ago. Pro Football and the NFL are represented by Robert L. Raskopf of New York’s White & Case. At the direction of the NFL, he would not speak publicly about the registration challenge, a firm spokeswoman said. On July 23 before Judge Kollar-Kotelly, Raskopf vigorously laid out the team’s arguments, attacking the sufficiency of the evidence used to prove the marks were disparaging and claiming that the plaintiffs had neglected to bring a claim at the proper time. Team’s arguments Raskopf told the judge, who will review the board’s decision de novo, that his opponents should be held to a high standard of proof�clear and convincing�because of important public interests: The interest in maintaining registrations of valid trademarks. “If you’re going to upset Congress’ national trademark regime for a social policy, you better be convincing about it,” he said. The interest in quiet enjoyment of property. “They’ve been registered for a long, long time,” he said of the marks. The interest in immediate resolution of the claims “so that the dated claims don’t get stale.” The chilling effect on free speech created by the effort to penalize the content expressed in the registrations. Raskopf said the seven petitioners represented only themselves and had failed to prove that a significant number of Native Americans felt that the name “Redskins” was disparaging. “The record is devoid of substantial evidence that a substantial composite of Native Americans is disparaged as to ‘redskins’ when used by my client as the brand of a famous NFL team,” he argued. He noted that trademark examiners had looked at the team’s registration applications six times. “All six times, same result,” he said. “None of the applications disparaged Native Americans.” The Redskin marks, he said, do not ridicule but honor Native Americans. The Redskins’ franchise is now one of the most valuable in sports, said Raskopf. Without federal trademark registration, the team would be forced to rely on common law trademark protection. Raskopf told the court that under those circumstances “you’re going to spend a lot more money defending your mark no matter what else, no matter how famous, no matter how strong, because plenty of people are going to be willing to take you on.” On the timing of the challenge, Lindsay said that the interest in not being disparaged “abides over time, and each individual Native American who experiences this term as a term of disparagement has the right to assert that.” He said that a survey done by the firm showed that 36% of Indians responding found the term disparaging. Applying that to the whole population, he said, 700,000 to 800,000 of the 2.4 million Native Americans feel that way, a “substantial composite” as required by law. And he reviewed with the judge additional evidence of disparagement in dictionary definitions, personal statements of his clients, film evidence and historical evidence. Cancellation of a trademark registration is an extreme remedy, appropriate in a small number of cases, and the Redskin case is one of them, said Davis Wright’s Loving. “I can’t see how the fact that perhaps a term has a secondary meaning�associated here with football�how it can undermine the legitimacy of a claim that the mark is scandalous, immoral or disparaging,” he said. If Redskins owner Daniel Snyder were to discuss the issue publicly, Loving said, he’d certainly be advised that in referring to the protesters, “When you talk about these groups, you won’t call them redskins. You call them Native Americans.” If the petitioners win and the Redskins lose their registrations, the team can continue to use their trademarks. Team officials have indicated they would continue to use them. “I take what the law gives me,” said Lindsay. “We hope after enough courts tell them that this is a disparaging term�whether they agree or not�they will finally decide the most appropriate thing for them to do is to change their name.” Harjo predicted that it will happen. “In a way, it almost doesn’t matter what happens with this particular lawsuit,” she said. “I have children. My colleagues have children and grandchildren. There will be a lot of people to carry this on after we’re gone. This is not the end of it.” Coyle’s e-mail address is [email protected]

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