Harjo Revived? Oregon Board of Education Bars the Use of Native American Mascots by State High Schools
Twenty years ago, seven Native Americans brought a petition to the Patent and Trademark Office’s Trademark Trial and Appeal Board (TTAB), challenging six trademarks registered by the Washington Redskins. They claimed that the D.C. team’s name, logo, and accompanying marks were offensive and disparaging to them personally, and to Native Americans as an ethnic group, and sought to have the registrations for those marks cancelled. While that case, Pro Football, Inc. v. Harjo, was ultimately dismissed by the D.C. Circuit due to the defendants’ laches defense, a recent pronouncement by the Oregon state Board of Education may serve to reignite the fight to eradicate the use of such discriminatory names and images as mascots for athletic teams in the United States.
Section 2(a) of the Lanham Act allows for the challenge of applied-for and registered trademarks if they can be shown to be disparaging to a specific group of people. In order to bring such a claim, a party must show that the mark, in the context in which it is used, would be recognized as identifying a specific group, and that the reference would be considered disparaging to a substantial portion of the members of that group.
While it would seem that this standard would be easy to meet in a case like Harjo, Redskins’ ownership provided survey evidence which showed a surprising level of indifference toward these types of mascots by Native Americans today. Ultimately, however, whether or not the Redskins name and logo was sufficiently disparaging became moot when the court determined that the plaintiffs had waited too long to bring their claim. Under the common law doctrine of laches, a party’s claim can be dismissed if they have been aware of the existence of the offense for a significant period of time, and are deemed to have waited too long to bring their claim.
Since the dismissal of the Harjo case, a new group of younger plaintiffs has brought a similar claim, arguing that laches would not apply since these plaintiffs are bringing their case soon after reaching the age of majority. To date, though, this new case has not yet been decided by the TTAB.
Earlier this month, however, the Oregon Board of Education voted to completely ban the use of Native American-related names and logos by all schools across the state. In what has been called “possibly the most far-reaching regulation of its kind in the country,” state high schools will no longer be able to use logos such as feather headdress-attired chiefs or names like “Braves,” “Savages,” “Indians,” or, perhaps most relevant here, “Redskins,” to represent their teams. In fact, the only exception to this ban is that schools that had previously used Native American images in their logos and mascots, but used more generic names, such as “Warriors,” can continue to use the name as long as the logo and mascot are replaced.
Opponents of the new ban have argued not only that these names and logos have become an established tradition in the towns in which they’ve been used, but that they would be expensive to change – an expense few districts can afford during a time when school budgets are already tight. Districts have also raised the argument, previously used by Florida State University to maintain the use of its Seminoles mascot, that they actually have a good relationship with their local tribes and that the mascots were meant as a tribute rather than as any perpetuation of a stereotype. While the Board listened to and heard these concerns, the members ultimately found that they could “no longer accept these stereotypical images for the sake of tradition . . . .”
It remains to be seen whether Oregon will be a trendsetter in effecting this level of change, since to date only Wisconsin has enacted any similar measures. It also remains a question whether Native Americans will ever successfully force the Washington Redskins, the most widely known user of such a mascot, and an organization with far more financial resources to combat such efforts than any local high schools would have, to finally change their name after decades of use. If this decision by the Oregon Board of Education can bring this issue back to the forefront, and this latest group of plaintiffs can have their case heard, however, it is possible that the protections provided by the Lanham Act could finally spell the end of the Redskins name and logo in our nation’s capital.