On July 8, 2015, a United States district court in Alexandra, Virginia upheld a decision by the United States Patent & Trademark Office that the “Redskins” trademarks were too disparaging to be protected by federal registration. The case is Pro-Football, Inc. v. Blackhorse.
Appellee Amanda Blackhorse is a member of the Navajo people. In 2006, she and fellow Native Americans Marcus Briggs-Cloud, Phillip Cover, Jillian Pappan, and Courtney Tsotigh sought cancelation of all the registered trademarks that use the word “Redskins.”
In use since 1933, the Redskins trademarks were registered with the USPTO in 1976.
On June 18, 2014, the Trademark Trial and Appeal Board determined that the word “Redskins” is indeed disparaging to Native Americans when used in relation to professional sports, and at the times that the registration was issued. It ordered that the “Redskins” trademarks be cancelled.
This has been a long-standing controversy. In its opinion, the District Court pointed out that as far back as 1971 and 1972, “there were a host of newspaper articles detailing opposition to the name “Redskins” by some Native Americans.”
The District Court examined cross-motions for summary judgment filed by both sides and ultimately found in favor of the Navajo appellees. It denied to apply the First Amendment “strict scrutiny” analysis in this case but went through an interesting First Amendment analysis (and is a good read for anyone interested in First Amendment law).
It then determined that the meaning of the contested marks “‘may disparage’ a substantial composite of Native Americans in the context of the ‘Washington Redskins’ football team,” explaining:
The relevant period for the disparagement inquiry is the time at which the marks were registered. Here, the Court focuses on the time period between 1967 and 1990. When reviewing whether a mark “may disparage,” the PTO does not, and practically cannot, conduct a poll to determine the views of the referenced group. Instead, three categories of evidence are weighed to determine whether a term “may disparage”: (1) dictionary definitions and accompanying editorial designations; (2) scholarly, literary, and media references; and (3) statements of individuals or group leaders of the referenced group regarding the term.
The Court analyzed dictionary evidence, showing in several areas that the word was often “offensive”; a long list of scholarly, literary, and media references, which overall determined that the word was used as an ethnic slur and was insulting; and the statements of various Native American leaders.
The Court found that, because there was such a strong public interest, the fact that the claims were filed years after the registration did not matter.
So, overall, it was ordered that the TTAB’s ruling was affirmed, which is great news for the Navajo advocates. However, this case will probably not be the end, as Pro-Football will like exercise appeal rights.
Even then, assuming that the case is affirmed on appeal, the team does not necessarily have to stop using the name. It will lose the protection afforded by federal trademark registration, but it still may be able to enforce common-law trademarks. The only incentive for the team to stop using the name would be a loss of revenue from people boycotting the games, which, given the publicity that this case brought, may just happen.
Any thoughts? Comments are welcome below!