By Del Quentin Wilber
Washington Post Staff Writer
Saturday, July 12, 2008
The Washington Redskins scored another victory yesterday in a long-standing fight over the football franchise's trademark, with a judge rejecting the latest challenge by Native Americans who say the name is disparaging.
The decision marked the second time that U.S. District Judge Colleen Kollar-Kotelly has ruled in favor of the team, which has been fighting to protect millions of dollars in sales of Redskins caps, T-shirts and other merchandise.
In 2003, Kollar-Kotelly ruled that a group of seven activists did not provide enough evidence that the team's name and images were so insulting that they had no legal right to trademark protection. She also ruled that the activists waited too long to make their challenge, noting that the first trademark -- "the Redskins," written in a stylized script -- dated to 1967.
Kollar-Kotelly was forced to revisit the delay issue after the U.S. Court of Appeals found in 2005 that one of the activists, Mateo Romero, might have legal standing because he was born in 1966.
Yesterday the judge found that he, too, waited too long before joining the legal action. He had been an adult for eight years before filing his initial complaint, she wrote.
Romero was aware of the Redskins name well before becoming an adult, noting that he saw the team's games on television, the judge wrote. By not filing the challenge in a timely way, the judge ruled, Romero put the Redskins at an unfair economic disadvantage.
Between the time Romero turned 18 in 1984 and 1992, she noted, the Redskins' list of merchandise licensees nearly tripled, and the team invested millions in the name. If Romero had filed his complaint in 1984, the Redskins might have chosen to spend that money elsewhere, she wrote.
That delay would also have hurt the Redskins at trial because they lost valuable witnesses and documents that might have bolstered their case, the judge determined.
Romero "has no reasonable excuse for his delay in taking action," the judge wrote.
The judge repeated a view she expressed in her 2003 opinion, writing, "the Court again reiterates . . . that 'this opinion should not be read as making any statement on the appropriateness of Native American imagery for team names.' "
The team's name has been in place for about 75 years, and it was not at stake in the litigation.
But its logo and trademark protections were in jeopardy, including protections for the cheerleaders, the Redskinettes. Attorneys for Pro Football Inc., the corporation that owns the Redskins, have argued that the name does not disparage Native Americans but is a sign of honor.
"This is a significant win," said Robert Raskopf, a lawyer representing the Redskins. "It vindicates our position that the delay was far too long for reasonable consideration of the issues."
Philip Mause, a lawyer representing the Native Americans, said they would appeal the decision. "We're not happy," he said.
The trademark fight was launched in 1992, when the Native Americans filed a complaint on the use of six Redskins trademarks with the U.S. Patent and Trademark Office. In 1999 the Trademark Trial and Appeal Board agreed with the activists and ruled that the team had no right to trademark its name. The team then appealed to U.S. District Court.
The fight is hardly over.
Six younger Native Americans, represented by Mause, filed a separate complaint with the trademark office in 2006.
Because the new batch of activists is younger, Mause says he believes they will be able to overcome the timing issue raised by Kollar-Kotelly.
"It's unfortunate that we are spending so much time going back and forth on this [delay] issue, because I believe the issue ultimately will have to be addressed on the merits," Mause said.