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Suzan Shown Harjo had some choice words for U.S. District Judge Colleen Kollar-Kotelly. “She doesn’t understand the history of her country or what she was looking at,” said Harjo, who had just lost a challenge to the Washington Redskins’ team name. The source of her ire was the judge’s 84-page decision in favor of the Redskins’ six trademarks, which had been canceled by the Trademark Trial and Appeal Board in 1999. Harjo is of Cheyenne and Muskogee descent. The board (also known as “TTAB”) had found that the Redskins marks may be disparaging to Native Americans and may cause people to hold them in contempt or disrepute. On Sept. 30, Kollar-Kotelly overturned the board’s ruling. “The TTAB’s finding of disparagement is not supported by substantial evidence and must be reversed,” she wrote. Pro-Football Inc. v. Harjo, No. 99-1385 (D.D.C.). A lawyer for the team, Robert L. Raskopf of New York’s White & Case said, “She nailed it exactly.” He said the plaintiffs made unsubstantiated charges and waited too long to file their challenge. The action was filed by Harjo and six other Native Americans under Sec. 2(a) of the Lanham Act in 1992, 25 years after the first Redskins mark was registered with the U.S. Patent and Trademark Office and 55 years after its first use. Kollar-Kotelly ruled that the delay between registration and the filing of the suit would make it unfair to deprive the team of the trademark, in which it had heavily invested. Minneapolis lawyer Michael A. Lindsay, a partner in Dorsey & Whitney, represented Harjo and the others pro bono. “The fight goes on,” he said when asked if his clients will appeal, but he would not specify his next step. Braves, then Redskins The Redskins name dates to the team’s birth in Boston 70 years ago as the Boston Braves, a stablemate to the baseball team. According to its Web site, within a year of its creation, the franchise moved from Braves Field to Fenway Park and was rechristened the Redskins. Four years later, it moved to D.C. The Redskins mark was first registered in 1967. Under the law, the TTAB plaintiffs were not required to prove that the mark may be disparaging or cause contempt and disrepute today, but that it did so then. To meet that burden, Harjo and the others offered their own testimony as well as survey results and historical and linguistic evidence. “To our mind,” Lindsay said, “it was a persuasive mosaic.” To Kollar-Kotelly, the “board premised its disparagement conclusion on a paucity of actual findings of fact that were linked together through inferential arguments that had no basis in the record.” Former TTAB Judge David J. Kera, now in private practice with the Alexandria, Va., firm Oblon Spivak McClelland Maier & Neustadt, said that the Native Americans faced a nearly insurmountable burden. “I think they had a very difficult hill to climb,” he said. Kera said that showing public opinion at a particular time is difficult because of the need to get information without asking leading questions. He said that surveys are frequently susceptible to charges that the sample size is too small. “The courts are reluctant to disturb established rights,” Kera said, adding that it would take “a very substantial case” to do so. “You would have to show that it was grossly insulting to a vast majority of at least the affected group if not the population as a whole.” Kollar-Kotelly explicitly stated that her decision should not be interpreted “as reflecting, one way or another, on this Court’s views as to whether the term ‘Washington Redskins’ may be disparaging to Native Americans.” That distinction was lost on Harjo, president of the Morningstar Institute in Washington. The ruling, she said, “sets the reality of race relations, and who minority people are, on its head. I find it pretty stunning.” Harris’ e-mail address is [email protected].

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