Lions, Tigers and Bears, oh my! It is not uncommon for professional sports teams to be named after courageous, cunning, or speedy animals (or maybe pretty birds in the case of the Blue Jays and Cardinals), but some teams opt to honor notable characters from history like the Dallas Cowboys, Pittsburgh Pirates and Texas Rangers, to name a few.

But what happens when a team that has been around for quite some time has a name that is not quite . . . politically correct? Three examples are at the forefront with the Cleveland Indians, the Atlanta Braves and the Washington Redskins. While an argument can be made that the first two represent either innocent or esteemed traits of the Native American people, the term “redskin” has not been used favorably throughout history.

Consequently, a group of seven Native American activists has been trying unsuccessfully for more than a decade to prohibit the NFL team from calling itself the Washington Redskins. It all started with a 1999 decision by the U.S. Patent and Trademark Office holding that the term was “disparaging” within meaning of Section 2 of the Lanham Act of 1946, which prevents such marks from being registered as trademarks. The team quickly appealed the decision, and in 2003, Judge Colleen Kollar-Kotelly of the D.C. District Court reversed the holding on grounds of laches–the team received its name in 1937 and registered it in 1967, a full 25 years before the lawsuit originated.

The D.C. Circuit Court then reversed the decision, holding that the youngest plaintiff in the group was only a one-year-old in 1967, and thus could not have brought the lawsuit then. Upon rehearing, Judge Kollar-Kotelly affirmed her original stance because that plaintiff turned 18 in 1984 and therefore waited 12 years before filing suit. She did not at that time address the underlying issue of “the appropriateness of Native American imagery for team names.”

After a three-judge panel on the appeals court affirmed her decision in May, the group filed a writ of cert with the United States Supreme Court recently on September 14. The plaintiffs want the Court to actually decide the merits of the case–whether the term really is racist and offensive–and believe that a 2001 Third Circuit opinion authored by Justice Alito provide them the chance. In his opinion, then-Judge Alito actually cited an earlier version of the present case, Harjo v. Pro Football, Inc., for the proposition that the statute of limitations should not run when the “interest at issue is the integrity of the federal register” as opposed to the injury to the challenging party.

Although Alito’s opinion highlighted abandonment and fraudulent obtainment as conditions where there can be no laches under Section 14 of the Lanham Act, that same provision states that the mark may be challenged by “any person that believes he is or will be damaged . . . by the registration of the mark . . . at any time if the registered mark becomes the generic name for the goods or services, or a portion thereof, for which it is registered . . . .” I’m not totally sure what that means, but I believe it occurs when a mark becomes the generic name for something, like Kleenex or Ziploc. The assumption here is that Alito or other judges may be concerned that “redskins” might develop into the common name for Native Americans. A bit of a stretch, but who knows. And this would only pertain to getting around the statute of limitations problem.

Sports teams as we know them do not remain very constant, with new players, management and uniforms circulating every few years. Old historic stadiums are torn down and new state-of-the-art ones are erected, while some just get new names. Team names are shortened or modified (i.e., Devil Rays and Washington Bullets Wizards) and some franchises like the Oklahoma City Thunder and Cleveland Browns simply pick up and move, leaving their old names and colors behind. If all of these events can happen, motivated mostly by sour business dealings between multi-millionaires, I personally see no problem with the Redskins altering its title if a group of people find it offensive to their culture and heritage. Washington already has the Nationals playing baseball in the city, so maybe changing Redskins to the Natives would be appropriate. By shedding the derogatory nickname, the franchise could largely keep its colors and mascot and be more on par with the Braves and Indians.

As a Philadelphia Eagles fan, I won’t be concerned if the Redskins lose this one. But in case the Court denies cert or affirms the courts below on the laches question, this issue should eventually be resolved–another Native American group filed suit in 2006 and had its case shelved until the outcome of this one has been decided.

Andrew Cunningham

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