That the Washington Redskins football team name is controversial is undisputed, but the Trademark Trial and Appeal Board is weighing whether there was evidence that enough Native Americans considered it disparaging to cancel the team’s trademark registrations.
A March 7 hearing marked the latest development in more than two decades of litigation over the name, which has long been criticized as offensive to Native Americans. A previous challenge to the team’s trademark registrations succeeded before the trademark appeal board in 1999, but ultimately failed when the team appealed to the federal courts.
The petitioners in this latest round are five Native Americans from different tribes. Although the trademark appeal board couldn’t stop the team from using the name, cancelling the trademark registrations would leave the team unable to stop others from using the name commercially.
As Administrative Trademark Judge Karen Kuhlke noted in her opening remarks, the board is tasked with deciding whether a "substantial composite" of Native Americans considered the name disparaging. She noted that a "substantial composite" doesn’t have to be a majority.
Drinker Biddle & Reath’s Jesse Witten, lead attorney for the petitioners, told the three-member board today that U.S. District Judge Colleen Kollar-Kotelly got it wrong during the first go-around. In 2003, Kollar-Kotelly found that the 1999 decision to cancel the registrations wasn’t supported by enough evidence and that the petitioners delayed too long in bringing their case, an argument also known as laches. The U.S. Court of Appeals for the D.C. Circuit affirmed Kollar-Kotelly’s ruling on the laches issue.
Witten argued that the term "redskin" was offensive to Native Americans, comparing it to slurs for other racial, religious, and ethnic groups. In his brief, he offered examples of derogatory uses of the term in newspapers, magazines and movies. During arguments, he noted that English language dictionaries had added disclaimers over the years about the negative connotation of the word, another sign that it was more than just a neutral identifying term for Native Americans.
As to how the petitioners could prove that a "substantial composite" of Native Americans found the term disparaging, Witten pointed to objections raised during a 1972 meeting between seven Native American leaders and Pro-Football Inc., the entity that owns the team, as an example. After the first case, Harjo v. Pro-Football Inc., was filed in 1992, Witten said that the National Congress of American Indians again denounced the name.
Robert Raskopf of Quinn Emanuel Urquhart & Sullivan, lead counsel for Pro-Football and the Redskins, urged the board to follow Kollar-Kotelly’s guidance, even though they weren’t legally bound to do so. Raskopf said that the board had to look at whether the petitioners had evidence that a "substantial composite" of Native Americans found the term disparaging when the trademark registrations were issued between 1967 and 1990; evidence from other dates couldn’t count, he said.
Administrative Trademark Judge Marc Bergsman asked Raskopf why the board couldn’t weigh the totality of evidence, as opposed to judging each individual piece, in the same vein as the U.S. Court of Appeals for the Federal Circuit. Raskopf replied that because the petitioners’ evidence fell outside the relevant time period, it wasn’t usable—an irrelevant piece of evidence doesn’t become relevant just because there are many piece of irrelevant evidence, he said.
Raskopf pointed out that six trademark examiners who had a legal obligation to reject disparaging trademarks approved the marks in question. Furthermore, he noted that at the time the registrations were issued, no objections were ever filed by Native Americans.
Finally, Raskopf argued that the petitioners’ delay in pursuing the case was a fatal flaw. The petitioners were between the ages of 18 and 24 when they filed their case. Raskopf argued that the law required them to file as soon as they knew about the trademark issue and reached their 18th birthday, and there was no reason why they had to wait as long as they did to file.
Bergsman asked if it was reasonable to expect the petitioners to essentially decide how they wanted to proceed before they became adults under the law. Raskopf said that it was, given the public nature of the case and the fact that the petitioners knew about the issue before reaching 18. Witten, in his brief, said that the petitioners waited to file because the Harjo proceedings were still pending and they didn’t want to file "excessive and unnecessary petitions."
The judges didn’t give a time frame for issuing their decision. Administrative Trademark Judge Peter Cataldo also heard the case.
Contact Zoe Tillman at email@example.com.