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Despite seven years of litigation, the descendants of the famed Lakota Sioux leader Crazy Horse aren’t giving up in a trademark fight with a brewery. In fact, they’re stepping up the battle with some help from Morrison & Foerster. A legal team that includes lawyers from MoFo wants to halt use of the Crazy Horse name by Hornell Brewing Co., which manufactures “The Original Crazy Horse Malt Liquor.” Last week, the firm filed suit against Hornell and its owners, Ferolito, Vultaggio & Sons, in South Dakota federal court. MoFo is seeking a permanent injunction prohibiting the defendants from using the name or likeness of Crazy Horse, who died in 1877. The case has personal meaning for two MoFo associates. Christine Neuhoff and Christina Kirk-Kazhe, both Native Americans, said they jumped at the opportunity to work on the case. “It makes us feel good to be able to give empowerment to the Native-American community and fight for our rights as well,” said Kirk-Kazhe, a Navajo and Mescalero Apache. In Estate of Tasunke Witko, a/k/a Crazy Horse v. Hornell Brewing Co., 00-4200, the plaintiffs contend that the brewery’s use of the Crazy Horse name constitutes “disparagement and defamation of the spirit.” Other claims include violation of rights of publicity and violation of the Indian Arts and Crafts Act, which prohibits false suggestions that a product is of Indian origin. Don Vultaggio, one of the owners of Hornell Brewing, has not yet been served with the new suit. But he believes the issue is moot since the company removed the image of an Indian from its beer product and replaced it with that of a “crazy-looking horse.” “I’ve been frustrated by their attempt to try to monopolize Western images,” Vultaggio said. “They don’t like a lot of things” with Native American names, such as the Atlanta Braves and the Washington Redskins sports teams. But the descendants of Crazy Horse say using the name of a revered leader to promote an alcoholic beverage is “exploitive and degrading,” given the high rate of alcoholism in many Indian communities. “The most current statistics for Indian communities in South Dakota indicate that upwards of 90 to 95 percent of the population are affected by alcohol and alcoholism,” the suit says. The Crazy Horse product, distributed in 40-ounce bottles, is sold only in New York. Vultaggio said it has never been sold in South Dakota since the state’s liquor authority did not approve sale of the large bottles. The recent filing is just the latest salvo in the battle between the descendants of Crazy Horse and the brewing company. Seth Big Crow Sr., administrator of the Crazy Horse estate, initially brought suit in the Rosebud Sioux Tribal Court. The court ruled that it lacked jurisdiction in the dispute, but the Rosebud Sioux Supreme Court disagreed in its 1996 ruling. Hornell then filed suit against the estate of Crazy Horse and the tribal court seeking a court order to continue its label. A South Dakota federal court also found that the tribal court lacked jurisdiction in the matter. In 1998, the 8th U.S. Circuit Court of Appeals upheld the lower court’s ruling on jurisdiction but did not address the merits of the case. Attorneys for the Crazy Horse estate — Rosebud, S.D., tribal attorney Robert Gough and former MoFo associate Stuart Kaler — then turned to MoFo to help get a ruling on the merits. The federal government also has played a role in the ongoing dispute. Congress passed a law in the early 1990s prohibiting use of the Crazy Horse name on alcoholic beverages. But a New York federal court ruled that the law was unconstitutional on First Amendment grounds. The current battle is focusing on the intellectual property rights of Native Americans. The First Amendment “doesn’t protect you from stealing property,” Gough said. “You don’t have the right to steal someone else’s trademark.”

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