A battle of public opinion is being waged with respect to whether the Washington Redskins should change their name. Members of the Oneida Indian Nation are airing ads in strategic NFL markets asking that the Redskins abandon their team name, which the group and other Native American groups alleges amounts to a racist slur. In a halftime monologue during the October 13 Sunday Night Football broadcast, Bob Costas referred to the team’s name as “an insult, a slur.” Perhaps the biggest name to raise a stake in the battle, is President Barack Obama, who recently opined, “If I were the owner of the team and I knew that the name of my team, even if they’ve had a storied history, that was offending a sizable group of people, I’d think about changing it.”
The problem, though, for Obama and those on his side of the debate, is that the owner of the Redskins, Daniel Snyder, is emphatic that he is not changing the name of his team. Snyder arguably summed up his point best when he told USA Today earlier this year, “We will never change the name of the team.” Snyder’s rationale for this lies in a myriad of factors. Snyder and those who oppose the name change base their opposition largely on the history of the team’s name. They point to this history as a sign of honor–and not disparagement–of Native Americans and the courageous nature that demarcates their history as a people. From their perspective, it is notable that in 1933, when the Boston Braves were renamed the Redskins, the team’s head coach was a Native American.
While the trial of the court of public opinion will likely continue to play out over television as the NFL season continues, a quieter case is taking place within the legal system. It is the outcome of this case which may play the biggest role in whether Snyder changes his team’s name.
Snyder purchased the Washington Redskins in 1999. For a man who said he would never change the team’s name, an event that took place that same year could have caused enough of an economic burden to twist his hand into doing so. In 1999, the Trademark Trial and Appeal Board cancelled six trademark registrations held by the Redskins. This decision meant that the rights and benefits associated with owning these trademark were no longer afforded to the team. From a monetary perspective, this legal decision could have cost the Redskins potentially hundreds of millions of dollars. Losing a trademark in place for over thirty years signals the loss of the goodwill developed since the trademarks’ creation in 1967, the subsequent loss of licensing deals created around those trademarks and finally, a loss of stature in the marketplace. At the end of the day, those factors ultimately equate to the Redskins not only losing trademark protection, but losing money. Big money.
What caused the Redskins’ trademarks to be canceled in 1999? The cause was a case filed by a group of Native Americans, Harjo v. Pro Football, Inc. That case argued that the trademarks held by the Redskins were disparaging, and as such, violated Section 2 of the Lanham Act (the body of law governing trademark protection in the United States). The plaintiffs’ arguments in theHarjo case were largely similar to the arguments being raised today in the court of public opinion: the use of the word “Redskin” in a team name amounts to using a racial slur as a team name.
Realizing the ramifications of losing trademark protection, the Redskins appealed the Trademark Trial and Appeal Board’s decision in the Harjo case. Through a series of appeals, a federal district court overturned the Trademark Trial and Appeal Board’s decision. The federal district court’s basis for doing this, was based in part upon a finding that the doctrine of laches barred the plaintiffs from bringing their claim. Further appeals were made. Ultimately, the Supreme Court denied to hear the case. As such, at the end of the Harjocase, the Redskins maintained their trademark protection. The Native Americans offended by the team’s use of a word that is one of the most disparaging used against their culture faced a new uphill legal battle to change that name.
Currently, a claim similar to that raised in the Harjo case is pending before the Trademark Trial and Appeal Board. This case, Blackhorse v. Pro-Football, Inc., has been pending since before the conclusion of the Harjo case. Like theHarjo case, it argues that six of the Redskins’ trademarks should be cancelled, because they are disparaging. This case was built utilizing strategy gleaned from the outcome of the Harjo case. Yet, that strategy does not mean that theBlackhorse legal team faces a clear and easy path to successfully arguing for the cancellation of the Redskins’ trademarks.
The uphill battle faced by Native Americans wishing for the Redskins to change their team name was paved by the federal district court who overturned the Trademark Trial and Appeal Board’s decision in Harjo. First, the Harjodistrict court’s reliance upon the doctrine of laches arguably presents difficulties for the group. Laches is an equitable legal defense, under which claims can be barred if a person waits too long to bring them. In the Harjolitigation, the district court found that the plaintiffs’ claims were barred using laches, because the Redskins were awarded their first trademark in 1967. TheHarjo plaintiffs, however, didn’t bring their case until 1992–some 25 years after the Redskins’ first trademark was approved.
The time clock for the doctrine of laches begins ticking when a plaintiff reaches the age of majority. In the Harjo case, the youngest plaintiff was only one-year-old in 1967, when the Redskins obtained their first trademark. However, on remand, the district court found that even this plaintiff’s case violated the doctrine of laches, since he waited eight years after reaching the age of majority to bring his case.
Seeing how the Harjo court ruled when it came to laches, the biggest difference between the the Harjo case and the Blackhorse case, is the age of the plaintiffs. The plaintiffs in the Blackhorse case were between the ages of 18-and-24 when the case was filed. It is expected that their attorneys will argue that the case this time around is not barred by laches, since the plaintiffs brought their case within six years of reaching the age of majority.
The question, though, is whether this legal maneuver is enough to make a court find in favor of the Blackhorse plaintiffs and cancel the Redskins’ trademarks? Looking at the Harjo case, it does not appear so. Rather, it is only the beginning of the battle.
The biggest legal hurdle that the Blackhorse plaintiffs face, is not their age. Rather, it is showing that the Redskins’ trademarks are disparaging. This hurdle will not be overcome by anything leaders of the Oneida Indian Nation, famous broadcasters or even the President of the United States says in 2013. That is because the plaintiffs must prove that the trademarks were disparaging when they were granted; not whether they are considered disparaging today.
When it comes to showing that a trademark is disparaging,the plaintiffs must meet a two-part test: (1) the likely meaning of the mark and (2) if that meaning refers to an identifiable group, that the meaning is disparaging to a substantial composite of that group. Meeting the first part of this test is relatively simple from an evidence producing standpoint, as the the Trademark Trial and Appeal Board can only decipher the “likely meaning” of a trademark from dictionaries, encyclopedias and other reference materials. Thus, the Blackhorse plaintiffs will point to materials of this type from when each of the trademarks was granted to argue prong one of the two-part test.
Proving the second part of the two-part test, however, may prove to be more difficult for the Blackhorse plaintiffs. The reason this is difficult, is that the plaintiffs must show that a substantial composite of Native Americans–not in 2013, but from 1967-1990 when the trademarks were granted–found the trademarks disparaging. The question becomes, then, how do the plaintiffs go back in time and show that a sizable enough number (although not a majority) of the Native American population felt this way?
It is unclear whether the Blackhorse plaintiffs have the substantial evidence necessary to meet the burden of proving that the Redskins’ trademarks are disparaging. This should come as no surprise, as the district court in the Harjocase found that those plaintiffs did not have enough substantial evidence to show that then that the Redskins’ trademarks were disparaging. Unless the attorneys for the Blackhorse plaintiffs have unearthed new evidence demonstrating that the Redskins’ trademarks were considered disparaging when they were granted, it is unlikely that the plaintiffs will succeed in this regard.
The discussion above details the tough legal fight the Blackhorse plaintiffs face in removing a word they believe to be a slur from the name of an NFL team. Given that, one may wonder why the Blackhorse plaintiffs nonetheless choose to go forward with their cause of action. Perhaps it is because, even if they do not win in a court of law, they will slowly but surely win their case in the court of public opinion.