Intellectual Property Attorney

Is The Term “Redskins” Disparaging? The Washington Redskins Football Team Doesn’t Think So Despite Intense Debate

The Washington Redskins were originally called the “Boston Braves”. In their first season in 1932, the Boston Braves played at Braves Field, which was also the home of the Boston Braves baseball team. In 1933, the team moved to Fenway Park and adopted “Redskins” as their new name. Just four years later, in 1937, the Boston Redskins moved to Washington, where the new “Washington Redskins” football team shared legendary Griffith Stadium with the Washington Senators baseball team. Over the next six decades, the Washington Redskins won three Super Bowls, amassed a rabid and expansive fan base and consistently achieved recognition as one of the the highest valued sports franchises in the world.

We have covered challenges to the Washington Redskins’ trademarks (which are owned by the Washington Redskins’ corporate entity, Pro-Football, Inc.) in the past. For example, in
Blackhorse, et al. v. Pro-Football, Inc., Cancellation No. 92/046,185, a group of Native Americans contended that the term “Redskins” is disparaging to Native Americans and the team’s registrations should be cancelled. In other words, the “debate” is not new. Recently, however, the issue has garnered significant attention among Native Americans, football fans, politicians and the media. Even President Barak Obama took a break from dealing with the U.S. Government shutdown to weigh in, telling the Associated Press: “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 — was offending a sizable group of people, I’d think about changing it.” A few days later, responding to the escalating debate, Washington Redskins’ owner Daniel Snyder sent an open
letter to fans vowing not to change the name.

While this debate is raging among the general public, it is worth updating the status of Blackhorse, et al. v. Pro-Football, Inc. The cancellation is still pending before the Trademark Trial and Appeal Board (“TTAB”). The TTAB held an oral hearing on March 7, 2013.

As you may recall from our previous post, the proceedings had been suspended for a significant period of time while another matter, Pro-Football, Inc. v. Harjo, worked its way through federal court. In that case, a group of Native Americans had filed a petition in 1996 to cancel certain trademarks containing the term REDSKIN. The Petitioners were actually successful, at least initially. In 1999 the TTAB had concluded that the trademarks-at-issue “may be disparaging of Native Americans to a substantial composite of this group of people” and, further, that the trademarks “may bring Native Americans into contempt or disrepute.” Pro-Football challenged the TTAB’s decision in the U.S. District Court for the District of Columbia, which determined that the TTAB’s decision was not supported by substantial evidence. In the District Court’s view, there was insufficient historical evidence or survey evidence to demonstrate that the trademarks-at-issue were disparaging when they were registered in 1967. The District Court also held that the doctrine of “laches” (an equitable defense that the Petitioners had waited too long to bring their claims) applied. The doctrine precluded the Petitioners from obtaining cancellation of the trademarks-at-issue. The U.S. Court of Appeals for the District of Columbia Circuit upheld the decision of the District Court and a writ of certiorari (the last avenue of possible appeal) subsequently filed by the Petitioners was denied by the U.S. Supreme Court.

Although there is no public record of the oral hearing, we can gain some insight from the parties’ trial briefs. The Petitioners’ trial brief cites evidence that they claim demonstrates, among other things, that the term REDSKIN is a disparaging epithet and that Native American groups have a demonstrated history of objecting to Pro-Football’s use of the terms “REDSKIN” and “REDSKINS”. In one interesting example from their trial brief, Petitioners claim that a delegation of Native Americans met with representatives of the Washington Redskins in March 1972 and objected to the use of the term REDSKIN. Petitioners acknowledge that the franchise did not change the name of the team as a result of the delegation’s objections, but they claim that Edward Bennett Williams, then President of Pro-Football, Inc., “change[d] language in the team’s fight song, ‘Hail to the Redskins,’ that mocked Native Americans, and also decided that the team’s cheerleaders would no longer wear Indian-style wigs that stereotyped Native American women.”

Pro-Football’s trial brief argues that the name “Redskins,” as used in connection with the football team since the 1930s, “is and has always been understood in this context to refer to the name of that storied football organization and nothing more.” They argue that, “[n]otwithstanding Petitioners’ attempts to transform a trademark cancellation proceeding for marks registered decades ago into a social referendum on whether some non-representative fraction of Native Americans today wish the team name to be changed, Petitioners have introduced no persuasive evidence at all—let alone a preponderance of the evidence—that a “substantial composite” of Native Americans were disparaged by Registrant’s use of the term “Redskins” in connection with the NFL’s Washington D.C. professional football team at the relevant time periods (i.e.¸ 1967, 1974, 1978 and 1990).” Moreover, Pro-Football argues that the TTAB does not need to make a decision on the specific claims raised in the petition because the 2003 decision in Pro-Football, Inc. v. Harjo “is effectively binding” on the TTAB (wherein, as Pro-Foobtall claims, the District Court rejected the same or substantially similar evidence as insufficient). Pro-Football also argues that the Petitioner’s claims are barred by laches, as had been argued before the District Court. Thus, in sum, Pro-Football argues that the “Petitioners have not satisfied their burden of proving, by a preponderance of the evidence, that at all the dates of registration, the words ‘Redskins’ and ‘Washington Redskins,’ or ‘redskin,’ were disparaging to a substantial composite of Native Americans.”

The case is Blackhorse, et al. v. Pro-Football, Inc., Cancellation No. 92/046,185. Grimes LLC attorney Michael Patrick has previously written about this issue in an article titled
The Disparaging Trademark Dilemma: Reality after Harjo v. Pro Football, Inc. (IP Litigator, January/02 2006).

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