By Cody Wilcoxson*

The Washington Redskins are in another epic battle. No, not as part of their storied rivalry with the Dallas Cowboys or a Monday Night matchup with the New York Giants. Instead, this battle is for their name.

Washington’s NFL franchise is no stranger to court room drama. The story began in 1992 when seven members of federally recognized Indian tribes filed a petition with the Trademark Trial and Appeal Board (“TTAB”) of the United States Patent & Trademark Office to cancel six trademarks owned by Pro-Football, Inc., the corporate owner of the Washington Redskins.[1]  After seven years of litigation, the TTAB ruled against the Redskins, holding that the “derogatory connotation of the word ‘redskin(s)’ in connection with Native Americans extends to the term ‘Redskins,’ as used in [team’s] marks…may be disparaging of Native Americans to a substantial composite of this group of people.”[2]  Based on its findings of disparagement, the TTAB moved to cancel the trademarks.[3]

The Washington Redskins immediately went on offense, seeking “de novo review, pursuant to 15 U.S.C. § 1071(b),” which allowed for a TTAB decision to be appealed through civil litigation in the United States District Court for the District of Columbia.[4]  Ultimately, the court reversed the cancellations on two grounds: first, that the evidence did not support the conclusion of disparagement; and second, that even if there was disparagement, the doctrine of laches barred the petitioners from obtaining relief. [5]

The petitioners appealed the decision to the United States Court of Appeals for the District of Columbia, which remanded the case for further review based on one individual petitioner.[6]  On remand, the District Court granted Pro-Football’s motion for summary judgment on the laches defense because the petitioner’s delay in filing its action was undue, its delay in filing the petition resulted in trial prejudice for the franchise, and its delay in filing the petition resulted in economic prejudice for the franchise.[7]  After the Court of Appeals affirmed and the U.S. Supreme Court denied certiorari, it appeared the Washington Redskins could move on after 18 years of fighting for their name. But it was really only halftime.

The group looking to remove the Redskins moniker learned from the Harjo litigation and mounted its second half comeback. Their case had unraveled the first time because of laches, an equitable defense that can be asserted if there is an unreasonable delay by the plaintiff in bringing the claim.[8]  This time, Suzan Shown Harjo, the lead plaintiff of the initial proceedings, recruited six young Native Americans to come forward with their own petition against the Redskins’ trademarks.[9]  At the forefront of the case was Amanda Blackhorse, 24 at the time of filing and now 33, who works as a social worker on the Navajo reservation where she grew up.[10]

After Blackhorse and her fellow petitioners successfully convinced the TTAB to again cancel the Redskins’ six disputed trademarks, the NFL franchise went back to the federal district court room, this time bringing the case of Pro-Football, Inc. v. Blackhorse in the United States District Court for the Eastern District of Virginia.[11]  The court was emphatic, rejecting all seven of the Redskins’ defenses in granting summary judgment for the Native Americans and affirming the TTAB’s ruling.[12] The Redskins have appealed the case to the U.S. Court of Appeals for the Fourth Circuit.[13]

While the case hangs in litigation limbo, it is worth considering what the Fourth Circuit’s decision would mean for the Redskins and owner Daniel Snyder. If the court affirms, Washington would still be able to use the “Redskins” nickname, and the Redskins would still hold all of their trademarks that utilize the word “Washington” without the word “Redskins,” but all legal protection of the “Redskins” trademarks, including the team’s logo, would be gone.[14]

If the court reverses, the Washington Redskins would hope that the U.S. Supreme Court does not grant certiorari to an appeal from the Blackhorse plaintiffs.  Supreme Court review of the case would not only bring legal finality to the situation, but it would also bring the negative public relations surrounding the situation to a peak.

What is important to note is that these proceedings are about the legal protection of the Redskins name and logo, not the team’s ability to employ the nickname.  The battle for use of the nickname will ultimately be fought between public perception of the franchise and the league that supports it.  But make no mistake, every failure in the court room by the franchise produces another wave of publicity and support for making a change in Washington.


 

*Staff Writer, Villanova University Sports and Entertainment Law Society Blog; J.D. Candidate, May 2018, Villanova University School of Law.

[1] See Harjo v. Pro-Football Inc., 50 U.S.P.Q.2d 1705, at *1-*2 (1999).

[2] Id. at *47.

[3] See id. at *48.

[4] Pro-Football, Inc. v. Harjo, 284 F. Supp.2d 96, 99 (D.D.C. 2003).

[5] See id. at 145.

[6] See Pro-Football, Inc. v. Harjo, 415 F.3d 44, 50 (D.C. Cir. 2005).

[7] See Pro-Football, Inc. v. Harjo, 567 F.Supp.2d 46, 62 (D.D.C. 2008).

[8] See Black’s Law Dictionary (10th ed. 2014), laches.

[9] See Cindy Boren, Who is Amanda Blackhorse in Redskins’ Trademark Case?, The Washington Post (June 18, 2014), https://www.washingtonpost.com/news/early-lead/wp/2014/06/18/who-is-amanda-blackhorse-in-redskins-trademark-case/.

[10] See id.

[11] See Pro-Football, Inc. v. Blackhorse, 115 U.S.P.Q.2d 1524, *1 (2015).

[12] See id. at *38-*39.

[13] See Bill Donahue, Washington Redskins Appeal TM Case to 4th Circ., Law 360 (Aug. 4, 2015, 9:31 PM), http://www.law360.com/articles/687429/washington-redskins-appeal-tm-case-to-4th-circ.

[14] See Erik Brady, Redskins Trademark Ordered Canceled by Federal Judge, USA Today Sports (July 8, 2015, 3:39 PM), http://www.usatoday.com/story/sports/nfl/redskins/2015/07/08/washington-redskins-nickname-trademark-lawsuit-native-american-nfl/29862111/.

 

Comments are closed.



Sports Law Publications

From the newest issues of the Jeffrey S. Moorad Sports Law Journal to insightful books by Villanova Law Faculty, there’s something for everyone. View...

Annual Jeffrey S. Moorad Sports Law Symposium

Every Spring, the Jeffrey S. Moorad Sports Law Journal holds its annual symposium on current issues and hot topics in the world of sports law. Past Symposia have covered issues with concussions in sports, agent representation, and more. Check back in the Spring for more information on the next symposium.

Events

Be sure to keep up with Sports Law events at Villanova School of Law and other Philadelphia-area law schools on our events page. View...