FedEx Field is seen during the third quarter in a game between the Tennessee Titans and Washington Redskins on Oct. 19. (Ricky Carioti/The Washington Post)
An attorney for the five Native Americans battling the Washington Redskins over the football team’s name and trademark protections asked a federal judge Friday in Alexandria to dismiss the team’s lawsuit against them.
Jesse Witten, whose clients include Native American activist Amanda Blackhorse, told Judge Gerald Bruce Lee in U.S. District Court in Alexandria that the Native Americans aren’t qualified to be defendants in the trademark case because they don’t have a legal or economic motive to control the Redskins’ logo as a rival business might. He also told the judge that the team filed its suit in the wrong courthouse.
The Redskins filed the lawsuit in U.S. District Court in Alexandria this past summer after the U.S. Patent and Trademark Office board declared that the team’s name is offensive and that its federal trademark protections should be stripped. The Trademark Trial and Appeal Board made that decision after Blackhorse and four other Native Americans filed a complaint several years ago.
The Redskins’ lawsuit in Alexandria federal court gives the team a chance to defend its name and appeal the board’s ruling. Dan Snyder, the team’s owner, has said he’ll never change the team name, which he says honors Native Americans.
But the patent and trademark board said in its decision that “redskin” is offensive based on numerous factors: a 1993 resolution by the National Congress of American Indians calling the name denigrating; dictionary entries that for decades have defined the word as a slur; and letters from Native Americans saying that “redskin” is as defamatory to them as the N-word is to African Americans.
During arguments in Alexandria federal court, Witten told the judge that the Redskins are suing the wrong people and are suing in the wrong courthouse.
The team, he said, should have filed its case against the trademark office in the U.S. Court of Appeals for the Federal Circuit in Washington.
But because the Redskins sued the Native Americans in U.S. District Court in Alexandria, the lawsuit must be tossed, he said. Judges at the federal district court level can only accept cases when an actual “case or controversy” exists between two parties, Witten said. The Redskins, Witten argued, have a beef with the patent and trademark office — not Blackhorse and her four fellow Native Americans.
Bob Raskopf, one of the team’s attorneys, seemed exasperated by the Native Americans’ argument that they are no longer valid parties in the case.
“I’m a bit surprised by what I’m hearing,” he said. The Native Americans are, indeed, the right people to sue, he added, because if not for them, the patent board would never have declared that the team’s trademark protections should be stripped.
Raskopf said Congress gives Native Americans standing to be parties in this case, even if they have no economic or legal interest in owning the Redskins trademark.
“They professed that they have a personal stake in the registration,” Raskopf told Lee, repeatedly noting the large volume of evidence furnished by Blackhorse and the four other Native Americans in the case.
Raskopf said a dismissal would deprive the team of its chance to appeal the patent board’s decision. Lee seemed to side with Raskopf, frequently asking whether he would be the nation’s first judge to dismiss a trademark lawsuit on the grounds that there was no proper defendant. At the end of Friday’s hearing, Lee said he would issue a written ruling soon.
Until a final ruling is made in the lawsuit, the Redskins can keep their trademark protections. But if Lee dismisses the case, the Redskins might lose their last chance to appeal the patent board’s ruling.
In a news conference, Raskopf said that if the judge rules that Blackhorse and the other Native Americans are not the right defendants, he would ask that the patent and trademark office serve as a substitute so the case can proceed.