Trademark Office Cancels Redskins Marks
(CN) - The Washington Redskins cannot keep the trademarks behind its football franchise because the name is "disparaging to Native Americans," the U.S. Trademark Office ruled today.
In 2006, Amanda Blackhorse and four other Native Americans sought to nullify six of Pro-Football Inc.'s trademarks: five associated with the team and the fifth with its NFL cheerleaders, the Redskinettes. Federal law prohibits trademarks that "may disparage" people or "bring them into contempt, or disrepute."
A trademark can be canceled on these grounds only if it was considered disparaging at the time it was filed, which in this case was 1967.
Jesse Witten, who represented Blackhorse for the Washington-based firm Drinker Biddle & Reath LLP, said in a statement that he proved this through a "wide variety of evidence, including dictionary definitions and other reference works, newspaper clippings, movie clips, scholarly articles, expert linguist testimony, and evidence of the historic opposition by Native American groups."
That evidence is extensively recounted in the 81-page opinion.
Random House noted the term was "often offensive" in its entry from the year of the first trademark.
Oxford American Dictionary labeled the word "contemptuous" in 1980.
Brushing aside the evidence as "inconclusive," dissenting Judge Marc Bergsman lashed out at what he called the "controversy, currently playing out in the media, over whether the term 'redskins,' as the name of Washington's professional football team, is disparaging to Native Americans today." (Emphasis in original)
Judge Karen Kuhlke, who wrote the majority opinion, countered that the National Congress of American Indians lobbied against the term since the late 1960s.
At the time, the group represented 30 percent of the Native American population, she said.
When it passed a 1993 resolution supporting the nullification of the Redskins' trademarks, the group said that the team's name "has always been and continues to be a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging and racist designation," as quoted in the majority opinion (emphasis in original).
Pro-Football previously fought off attempts to cancel its trademarks in the past by arguing that previous opponents had waited too long to file suit.
The company's 2009 appeal to federal and appellate courts in Washington reversed the Trademark Trial and Appeal Board's prior cancellation of the Redskins' trademarks.
Those rulings found the trademark challenge impermissible under a doctrine known as laches prohibiting "unreasonable delay."
Judge Kuhlke said Wednesday, however, that this defense does not apply because there is "public policy interest at stake."
"To apply laches to this type of claim contemplates the retention on the register of a mark determined by the Board to be a racial slur, in blatant violation of the Trademark Act's prohibition against registration of such matter, merely because an individual plaintiff 'unreasonably delayed' in filing a petition to cancel," she wrote.
Drinker Biddle Chairman Alfred Putnam Jr. said in a statement that he was "extraordinarily gratified" by his firm's victory.
"The dedication and professionalism of our attorneys and the determination of our clients have resulted in a milestone victory that will serve as an historic precedent," Putnam said.
An attorney for Pro-Football Inc. did not immediately return a request for comment.