The Washington Redskins lost the biggest legal and public relations battle yet in the war over the NFL team’s name after a federal judge Wednesday ordered the cancellation of its federal trademark registrations, opposed for decades by Native American activists who call the name disparaging.
The cancellation, called a “huge victory” by the activists, doesn’t go into effect until the team has exhausted the appeals process in the federal court system. And Redskins President Bruce Allen vowed Wednesday that the team would appeal.
“We are convinced that we will win on appeal as the facts and the law are on the side of our franchise that has proudly used the name Washington Redskins for more than 80 years,” Allen said in a statement.
But even if the Redskins ultimately take the case to the Supreme Court and lose, the team can still use “Redskins” and seek trademark protection under state law. The team has argued, however, that a cancellation of its trademarks could taint its brand and remove legal benefits that would protect it against copycat entrepreneurs.
U.S. District Judge Gerald Bruce Lee’s decision affirmed an earlier ruling by the federal Trademark Trial and Appeal Board. Last year, the appeal board declared in a 2-to-1 vote that the team’s moniker is offensive to Native Americans and therefore ineligible for federal trademark protection under the Lanham Act, which bars protection for names that “may disparage” or bring people into contempt or disrepute.
Lee agreed with that assessment, rejecting the team’s argument that the vast majority of Native Americans had no objection to the name when the trademarks were granted between 1967 and 1990. Instead, the judge questioned why the team ever chose the name, pointing out in his ruling that Webster’s Collegiate Dictionary defined the word as “often contemptuous” in 1898, “seventy years prior to the registration of the first Redskins Mark.”
But Lee also emphasized that his decision does not stop the team from using its name or fans from buying the team’s gear emblazoned with the word.
The trademark case against the Redskins has been pursued by five Native American activists, including Amanda Blackhorse, a Navajo who is known for leading protests against the team outside stadiums wherever it plays.
After the trademark appeal board’s ruling against the team, the Redskins tried to overturn the decision by suing Blackhorse and the four other Native American activists in federal court in Alexandria. The team argued that the Lanham Act conflicts with its First Amendment rights. It also contended that Blackhorse didn’t prove that enough Native Americans opposed the name at the time the team registered its trademarks in 1967, 1974, 1978 and 1990.
In his statement, Allen said he was “surprised” with Lee’s decision to grant the Native Americans summary judgment in the case and cancel a full-blown trial. “We look forward to winning” at the U.S. Court of Appeals for the 4th Circuit in Richmond, he said.
Jesse Witten, one of the attorneys for the Native Americans, celebrated the judge’s ruling. “This is a huge victory. Getting this ruling from a U.S. District judge is a watershed event,” Witten said, although he acknowledged that the fight will continue.
Blackhorse, who lives in Arizona on the Navajo reservation, said the ruling has a far-reaching impact on how people see Native Americans and think about the team’s name.
“This case is about humanizing the indigenous identity,” she said. “I have asked this many times before and have never heard a sensible answer — if people wouldn’t dare call a Native American a ‘redskin’ because they know it is offensive, how can an NFL football team have this name?”
The Redskins have been waging a legal war to defend their federal trademark registrations for more than two decades. The fight began in 1992, when a group of Native Americans, led by Suzan Shown Harjo, filed a petition with the Trademark Trial and Appeal Board to strip the team of its name registrations. Seven years later, the panel ruled in Harjo’s favor.
But the Redskins appealed in federal court, winning on the grounds that Harjo and the other Native Americans didn’t produce enough evidence showing the name was insulting and that they waited too long after turning 18 years old — legally adults — to claim the name is offensive.
Before that case was lost, Blackhorse and four other young Native Americans from Florida, Utah and Oklahoma had filed their own petition with the trademark appeal board in August 2006.
Last year, the appeal board ruled in Blackhorse’s favor, voting to cancel the Redskins’ trademark registrations in a decision that reinvigorated the movement against the name. Members of Congress proposed legislation to strip the NFL of its nonprofit status if the league continued using the name. (The league announced in April that it was stripping itself of its tax-exempt structure.)
In its ruling, the appeal board asserted that “Redskins” offends a large number of Native Americans and is therefore ineligible for trademark registration under the Lanham Act. The board based its vote on several factors, including that “Redskins” is a dictionary-defined slur and the National Congress of American Indians declared the name racist.
The team, in the lawsuit it filed against the Native American activists in August, argued that U.S. patent officials had infringed on the Redskins’ free-speech rights and took away a valuable commodity “without just compensation” because the organization had invested millions of dollars in the use, promotion and protection of its trademarks. (The Redskins’ lawyers said in court papers that the team’s value increased from
$741 million in 2000 to
$2.4 billion by August 2014, with its brand management valued at $214 million.)
But Lee said the appeal board’s decision and the Lanham Act do not violate the First Amendment. He cited a fresh Supreme Court ruling in June that declared Texas didn’t violate the First Amendment when it banned specialty license plates bearing the Confederate flag proposed by the Sons of Confederate Veterans.
The Supreme Court held that states don’t have to issue speciality license plates whose messages they don’t want to endorse but that would nonetheless carry the government’s imprimatur. The Native Americans’ attorneys argued that the same rationale holds true in this case. The government, the judge wrote, is exempt from First Amendment scrutiny.
The team also claimed that Blackhorse and her fellow defendants didn’t meet the legal burden of proof by showing that enough Native Americans viewed the Redskins trademarks as offensive at the time each registration was issued. But the judge countered, pointing to “highly probative” testimony from the Redskins’ own linguistics expert, who conceded that the team name “certainly might be offensive” from 1967 onward.
Throughout the entire battle, the Redskins have argued that the team name honors Native Americans.
Dan Snyder, the team’s owner, has vowed that he will never change the name.
The team’s attorney, Robert L. Raskopf, predicted that it will be vindicated on appeal. “In the meantime,” he said, “the Redskins will continue to use their longstanding marks as symbols of pride, achievement and success both on the field and off.”