Last Monday night the Washington Redskins football team needed a field goal in overtime to beat the Dallas Cowboys. When it comes to the team’s ongoing trademark litigation, however, they may need a Hail Mary to beat the United States Patent and Trademark Office (USPTO).

Earlier this year, the United States Patent and Trademark Trial and Appeal Board (TTAB) revoked the Redskins’ trademark protection for their name and logo. The ruling was based on a clause in the Lantham Act banning marks that are “disparaging” to a particular group. However, this was not the first time the NFL franchise has suffered a loss with the TTAB. In 1992 a group of Native Americans lead by Suzan Harjo filed suit asking the USPTO to remove the team’s trademark protection. In 1997 the TTAB ruled that the mark was indeed disparaging to Native Americans. The Redskins appealed that decision.

On appeal, the United States District Court for the District of Columbia reversed the TTAB’s revocation. The court ruled that the record was not substantial enough to prove that it disparaged all Native Americans. This record included evidence offered by the Redskins suggesting that the term “redskins” is a translation from an American Indian work used to refer to one another. Furthermore, a survey of Native Americans demonstrated that 36.6% of Indians found the term insulting. The District Court also found that the claim was barred by the doctrine of laches. Because the petitioners had failed to appeal the trademark issuance in the previous 25 year period, they could not do so now.

Even before the Harjo litigation was finally resolved, another group of plaintiffs filed a complaint with the TTAB in 2006. Like the Harjo case in 1997, the TTAB again found that the term “redskins” disparaged Native Americans in violation of the Lantham Act. Thus, the team’s trademark protection was removed again in 2014. Unsurprisingly, the team filed an appeal with the D.C. District Court, as it did more than 15 years ago. This begs the question: what has changed since the initial litigation?

The Redskins’ lawyers will almost certainly point to the Harjo case where a federal court held that the term was not disparaging. Still, there are two main reasons to believe that this appeal will not be successful for a second time. First, the plaintiffs in this second bout of litigation are younger than those in Harjo. The doctrine of laches may not apply to them because they have not had sufficient time to complain about the trademark protection. Whereas the older plaintiffs were alive in the 1960s when the trademarks were initially issued, these younger plaintiffs are challenging a series of trademarks issued in the early 2000s. This closer timeframe suggests that laches will not bar their claim.

Second, the evidence in the record may have evolved in the last two decades. Public outcry against the term has reached an all-time high. It is likely that a similar survey conducted today would find that more Native Americans are insulted by the term than were in 1992. This, combined with the popular media pressure on team owner Dan Snyder, suggest that a contemporary court may be more willing to affirm the TTAB’s decision.

If upheld, the trademark revocation would be a major blow to the Redskins organization. Opponents of the team’s use of the term are using a combination of public pressure and fringe legal battles to chip away at the team’s ability to profit from the nickname. Given the numerous changes over the past two decades, the Redskins now face a tougher legal challenge on appeal.

 

Travis Gray

Comments are closed.