“Hail to the Redskins! Hail Victory! Braves on the warpath! Fight for old D.C.!” Many fans of the NFL’s Washington Redskins know the team’s fight song by heart, though it has undergone changes since its debut in 1938 as a result of controversial, and arguably offensive, lyrics. The team’s name has also long been mired in controversy. Recently, public figures such as President Obama and sportscaster Bob Costas have joined the public discourse, sharing their opinions about whether the Redskins name should be changed.

Though public attention has only recently focused on a name change, a legal battle over the Redskins trademark has been ongoing for many years. Efforts to cancel the Redskins’ trademark began in 1992, when a group of Native Americans filed a petition with the trademark office in Pro-Football, Inc. v. Harjo. They argued that the Redskins name was disparaging and offensive, and filed suit under the Latham Act.

Seven years later the Trademark and Trial and Appeal Board (TTAB) found that the name was in fact “disparaging” and should be changed. The decision was eventually overturned by the District Court, who found that the “TTAB’s finding of disparagement is not supported by substantial evidence” and that “the decision should also be reversed because the doctrine of laches precludes consideration of the case.” The D.C. Circuit Court of Appeals upheld the decision, citing a procedural error on part of the plaintiffs.

Now, however, the trademark office is considering a petition of a group of Native Americans who are again asking the office to strike down Redskins trademarks issued between 1967 and 1990. The case, Blackhorse v. Pro Football, Inc., was filed in 2006, but was put on hold during the Harjo case. An attorney representing the group of six Native Americans in Blackhorse stated that the petition “makes an important statement about the disparaging nature of the team’s name. We know the vast majority of team’s fans aren’t racist, but the fact remains they’re rooting for a team whose name is a racial slur.” The disputed trademark registrations include the name itself, the image of a Native American on the team’s helmet, and the Redskinettes (its cheerleading team).

This second group of plaintiffs is hoping to overcome the laches defense. Their attorneys are expected to contend that their claims are not barred, as the case was brought within six years of the plaintiffs’ reaching the age of majority. Experts, however, believe that the biggest challenge the plaintiffs face will be to prove that the trademarks were disparaging when they were granted. Plaintiffs contend “Redskin,” as used in the marks, “disparages Native Americans and brings them into contempt and disrepute.”

If the trademarks are cancelled, the Redskins would lose those rights that come with federal registration, but could still use the mark, claiming common law rights. If the team kept the name, it might set up an interesting battle in the courts, as an unregistered trademark that violates public policy may be invalid. According to Georgetown University Law Professor Rebecca Tushnet, “courts, historically, have denied such protection to offensive marks.”

Rebecca Loegering

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