What’s Next, Washington?
No, the Washington NFL franchise does not have to change its name.
But the U.S. Patent and Trademark Office’s 2-1 ruling this morning to cancel the Washington Redskins’ trademark registrations, on the grounds that the team name is disparaging to Native Americans, is an important victory for those who have opposed and advocated against the team name.
“I feel like this is definitely the tipping point ,” says Jacqueline Pata, executive director of the Washington, D.C.-based National Congress of American Indians (NCAI), which has campaigned against Native American stereotypes, including mascots, since the 1960s. “This is not just the advocates out there. This is the trademark commission that says, this is not a term that is acceptable and we can’t continue to register it. It’s really an important ruling. It legitimizes the complaint.”
Five Native Americans, led by Amanda Blackhorse, filed suit in 2006 to cancel federal registration of six of the team’s “Redskins” trademarks. The case was heard by the Trademark Trial and Appeal Board in March 2013, and as the calls for a name change have grown louder over the past year, both sides awaited this ruling on a potentially critical battleground.
Washington is still able to use the controversial name and its trademarks. But if the registration cancellation stands, the trademarks would no longer be federally protected, meaning the team would have a harder time stopping infringers from selling knockoff team gear. That could be a financial hit to both the team and the NFL.
The question of whether the registration cancellation will stand, however, is a big one. The team said it plans to appeal the board’s ruling, as it did successfully in a similar case filed by another group of Native Americans in the 1990s. “We’ve seen this story before,” Bob Raskopf, the team’s trademark attorney, said in a statement. “And just like last time, today’s ruling will have no effect at all on the team’s ownership of and right to use the Redskins name and logo.”
This is bigger than a trademark decision,” Pata says. “Do sponsors really want to be associated with the team when there is such a groundswell rejecting the name?
In the previous case, Pro Football, Inc. vs. Harjo, the Trademark Trial and Appeal Board also ruled to cancel the Washington Redskins trademark registrations. The team appealed to the U.S. District Court for the District of Columbia, which reversed the Board’s decision, for two reasons: 1) There was not substantial evidence that the name was disparaging, and 2) a legal doctrine called laches, which basically means the plaintiffs waited too long to bring their complaint. The case was then brought to the D.C. Circuit Court of Appeals, which upheld the district court’s reversal—but only on the grounds of laches. The appellate court did not rule on whether or not there was substantial evidence to support the assertion that the name was disparaging.
This is important, because the five plaintiffs in the current suit were younger when they filed—closer to the age of 18—so laches should not be a successful defense in this case. And there is no precedent for how the D.C. Circuit Court of Appeals would rule on the disparagement claim when it reaches that level. Another difference: If the team again appeals by filing a civil action in district court, that would be heard in a different court (the U.S. District Court for the Eastern District of Virginia, instead of the District of Columbia) due to a reorganization a few years ago.
In layman’s terms, there’s no way of knowing what the results of the appeal will be this time around.
The Harjo case was filed in 1992 but not fully resolved until 2009, so the current suit could take years to play out in the courtroom. The trademark board’s ruling is just the first step—but its greatest impact could be outside the courtroom.
“I’m thinking about sponsorships now,” Pata says. “This is bigger than just a trademark decision. The will be taking note. Do they really want to be associated with the team when there is such groundswell rejecting the name? I think when that happens, that starts hitting at the core, at the financial positioning.”
Opponents of the team name have long expected it will take outside forces to bring about a name change, particularly after owner Dan Snyder’s famous assertion to USA Today that he would “NEVER—you can use caps” change the 81-year old moniker. The trademark board’s ruling is a direct blow to the team and the NFL’s consistent defense that an “overwhelming majority” of Native Americans support the name. Canceling a trademark on the grounds of disparagement, by definition, means that the board concludes it was disparaging to a substantial population of the affected group at the time it was registered.
Administrative Trademark Judge Karen Kuhlke wrote in her opinion, “The recognition that this racial designation based on skin color is disparaging to Native Americans is also demonstrated by the near complete drop-off in usage of ‘redskins’ as a reference to Native Americans beginning in the 1960's. The record establishes that, at a minimum, approximately thirty percent of Native Americans found the term REDSKINS used in connection with respondent's services to be disparaging at all times including 1967, 1972, 1974, 1978 and 1990 .”
There was a dissenting opinion written by Administrative Trademark Judge Marc Bergsman, alleging not that the term “redskins” was not disparaging when the trademarks were issued, but that the plaintiffs did not present enough evidence to prove that it was, in particular the assertion that the NCAI, which passed a resolution opposed to the name, represented thirty percent of Native Americans at the time of the registrations.
The team’s statement outlined its successful outcome on appeal in the previous case. The NFL did not comment, deferring to the team.
Those fighting for a name change are celebrating today. Jesse Witten, lead attorney for the plaintiffs, saw the decision in his email inbox at 9 a.m. and called Blackhorse, who “almost couldn’t express herself with words,” he said. U.S. Sen. Maria Cantwell, who last month circulated the letter signed by 49 Democratic senators pushing for a name change, called the ruling a “landmark decision” on the U.S. Senate floor this morning. But while this is another step forward for opponents of the name, they’re still not at the finish line—a name change.
“It’s not done until it’s over,” says Pata. “This is a huge win, but we’re here for the long haul. I don’t know how the team doesn’t recognize at this point that it’s not just a small group of Indians anymore. It’s more than that. People and fans and the country itself are saying, ‘Let’s just change the name.’ ”