The Washington Redskins lost again- but this time not on the football field. Just this week, a federal judge affirmed an earlier ruling by the United States Trademark Trial and Appeal Board ("TTAB") that the team's name was offensive to Native Americans and therefore ineligible for trademark protection under the Lanham Act.
While the Redskins moniker has been around for 80 years, it was not until the early 1990's that aggrieved plaintiffs turned to the courts to challenge the use of Native American mascots and Native American team names. Then and now, the Lanham Act, which bars trademark protection for names which are offensive or disparaging has been invoked to advance these efforts.
It has not been an easy fight. In 1992, Suzan Harjo and other Native American activists petitioned the TTAB to cancel trademark registrations owned by the corporate entity that operates the Washington Redskins. The petitioners sought cancellation of the registration of the Washington Redskins football team on the grounds that the name was offensive to Native Americans. While the TTAB granted the application, the owner prevailed in an appeal before the federal district court.
In the Harjo case, the court overturned the cancellation because it found that : (i) the TTAB lacked substantial evidence to find disparagement; and (ii) the petition was barred by laches since the Redskins had registered their marks as early as 1967. The litigation battle waged on until 2009 when the U.S. Supreme Court refused to hear the Harjo petitioners' appeal.
During the pendency of the Harjo appeals, a new case emerged challenging the Redskin registration. This time, the case was filed by younger petitioners in order to avoid a laches defense down the road. Once again, the TTAB ruled to void the trademark finding the name "disparaging of Native Americans." This time however, the court upheld the TTAB's ruling in a case brought by Blackhorse and other petitioners.
The saying, "practice makes perfect" applies with substantial force in the practice of law. Like the petitioners in Blackhorse, the best way to move ahead is to learn from the past. It will be interesting to follow the Blackhorse legacy as the case makes its way through another series of appeals.
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