Redskins Are Denied Trademarks
By Brooke A. Masters
The Washington Redskins have no right to trademark their name because it is disparaging to Native Americans, a three-judge panel of the U.S. Patent and Trademark Office ruled yesterday.
In a decision that gave nearly total victory to a group of Native Americans who filed a complaint in 1992, the board ordered the cancellation of federal registration of seven Redskin trademarks, including the team's name and the helmet logo showing an Indian's head in profile.
The 145-page ruling does not prevent the team from continuing to use the Redskins name and the related logos. But it could jeopardize the millions of dollars in revenue that the National Football League reaps from the sale of Redskins merchandise because the team would no longer be able to use federal law to prevent others from putting the logos on items such as T-shirts and caps.
The board's decision will not take effect until the Redskins have had a chance to appeal.
"This is fabulous," said lead plaintiff Suzan Shown Harjo, a District resident and member of the Cheyenne tribe. "I never expected to see justice done in my lifetime. . . . This is an absolutely mighty landmark [of] societal change that we are watching."
The Redskins have no plans to change the team's name, and they will appeal the decision to the U.S. Court of Appeals for the Federal Circuit, said the team's attorney, John Paul Reiner. The team also plans to use state patent law to protect the logos and name from infringement, he said.
"We regret the opinion, and we think it's wrong," Reiner said. "We are going to continue to protect the marks vigorously."
National Football League spokesman Greg Aiello declined to comment on the decision.
Though Native American groups have long protested names and symbols they find offensive -- including the Cleveland Indians' logo and the tomahawk chop used by Atlanta Braves fans -- this marks the first time that a federal agency has come down on their side.
On the state level, the Utah Supreme Court ruled this year in a case involving complaints by Native Americans about several license plates that bore variations on the word "redskin." A state agency had rejected the challenge, but the Supreme Court ordered the agency to reconsider.
A 1946 federal trademark law says names cannot be protected if they are "disparaging, scandalous, contemptuous or disreputable."
In yesterday's ruling, the patent board relied on testimony from linguists and historians that the term "redskin" has long been used in a pejorative sense to refer to Native Americans. The board also cited a survey commissioned by the plaintiffs that found that 46 percent of the general public considered the word "offensive to me."
"A substantial composite of the general public finds the word 'redskin(s)' to be a derogatory term of reference for Native Americans . . . [and] the derogatory connotation of the word . . . extends to the term 'Redskins,' as used in [the football team's] marks," the panel wrote.
The judges ruled that the term was disparaging to Native Americans and tended to bring them "into contempt or disrepute."
The decision to cancel the Redskins' trademarks is "extremely unusual," said Trotter Hardy, a professor at the College of William and Mary who specializes in intellectual property law. "I've never heard of it happening on these grounds. . . . Marks are sometimes not registered initially because they are [disparaging] . . . but I've never heard of [the Patent and Trademark Office] canceling a mark."
A portion of revenue from the sale of NFL merchandise is kept by the league, and the rest is distributed evenly among all the teams, generating about $5 million a year for each club.
It was not clear how much impact the board's decision, if upheld, would have on the NFL's ability to profit from the Redskins name and logos, which have been trademarked since 1967 in some cases.
Hardy and the Redskins attorneys said that even if the Redskins lose on appeal, the trademark will still have significant protection under state and common law. "It may make it harder for [the team] to stop infringement, but it does not mean that the mark is fair game," Hardy said.
But the board's finding that the word "redskin" is derogatory could undermine the Redskins' case in state courts, said Stephen R. Baird, one of the attorneys for the Native American plaintiffs. "It is going to create all kinds of . . . legal defenses for anyone who wants to rip off Redskins T-shirts," he said.
Reiner said the team may challenge the constitutionality of the 1946 trademark law under the First Amendment because standards for determining what words and logos are offensive are "vague and unclear."
But Baird said that the federal appeals court has already rejected several First Amendment challenges to the same law.
The Washington Redskins were originally located in Boston and called the Boston Braves, but owner George Preston Marshall changed the moniker to Redskins in 1933 to avoid confusion with the local baseball team. In 1937, the team moved to Washington. At the time, the team was coached by Lone Star Dietz, who was part Sioux.
In a brief filed with the patent board, Reiner argued that the Redskins name was adopted by Marshall "out of respect for American Indian heritage and tradition and was never intended to belittle or insult."
Mike McCall, the team's director of public relations, said in a statement last night that "the Redskins believe its name honors native Americans and has for the past 67 years."
Because yesterday's decision focused very sharply on the term "redskin" and its linguistic history, it does not necessarily make other teams with Native American names vulnerable to similar challenges, lawyers said. The same survey that showed nearly half of respondents consider "redskin" offensive found that only 10 percent of those surveyed felt the same way about the word "braves."
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