Harjo v. Pro-Football: Human Rights Implications of a Trademark Lawsuit
Suzan Harjo has been an advocate for Native American rights since the 1960s. In addition to leading successful national campaigns for laws to promote and protect Native nations, sovereignty, arts, cultures, and repatriation, Harjo has been at the forefront of efforts to eliminate Native American references and mascots in American sports. That particular campaign began when Harjo sought to abolish Oklahoma University’s mascot “Little Red” as a disparaging portrayal of an American Indian. Little Red was done away with in 1977. Since then, Harjo and the efforts of various Native American rights groups and activists have eliminated nearly two-thirds of all Native American symbols and mascots in American sports. It was inevitable that Harjo, in her efforts to eradicate these disparaging symbols, would become involved in a trademark dispute.
Ms. Harjo is not an attorney, but she has been involved in trademark-related litigation since 1992, when a group of Native Americans led by Harjo petitioned the Patent and Trademark Office to cancel Pro-Football, Inc.’s trademarks on the word “redskin.” Pro-Football, Inc. is the corporation that owns and operates the Washington Redskins football team. Upon review of the petition, the Trademark Trial and Appeal Board (“TTAB”) decided to cancel the trademarks, finding that the marks “may disparage” Native Americans, and may cast Native Americans into “contempt, or disrepute” in violation of § 2(a) of the Lanham Trademark Act of 1946.
Pro-Football appealed the TTAB decision to the United States District Court for the District of Columbia. The District Court ruled in favor of Pro-Football, finding that the TTAB’s finding of disparagement was not supported by substantial evidence and that the suit was barred by laches—an affirmative defense in a trademark action where there is (1) substantial delay by plaintiff prior to filing suit; (2) plaintiff’s awareness of mark; and (3) reliance interest resulting from defendant’s continued development of good-will during this period of delay.
After several more years of remands and appeals that were unsuccessful, Harjo petitioned the Supreme Court of the United States; however, certiorari was denied in 2009. Nevertheless, Harjo’s efforts have not been in vain. A second suit, Blackhorse v. Pro-Football, Inc., has since been filed with the TTAB to challenge the team’s trademarks. These petitioners hope the laches defense will be unavailable, as the lead petitioner, Amanda Blackhorse, and her co-petitioners were in their late teens and twenties when they filed the petition. There has been some progress outside of the judicial system. Recently, Wisconsin has become the first state in the nation to ban Native American mascots in its public schools.
Harjo v. Pro-Football, Inc. (and now Blackhorse v. Pro-Football) represents a rare intersection between intellectual property law and human rights concerns. Though the claims presented in these lawsuits are purely trademark-based, there are certainly “human rights” implications in a broad sense. It will be interesting to see how the new lawsuit plays out and whether the right of the “invisible population” of the United States to not be disparaged by words and symbols will prevail.