The legal battle between the Native Americans and the Washington Redskins football team’s name is on its sixth year. Amanda Blackhorse and others (Petitioners) seek to strike down several of the team’s trademark registrations for “Redskins” on the grounds that the term is a racial slur.  On September 6, 2012, the attorneys for Petitioners filed their Trial Brief in the Blackhorse v. Pro-Football, Inc. case. In the Trial Brief, Petitioners argued that they have standing, the challenged trademark registrations contain matter that may disparage
Native Americans or bring them into contempt or disrepute, and that Pro-Football, Inc.’s (PFI) laches defense lacks merit.

So, let’s breakdown the Trial Brief filed by Petitioners…

First, Petitioners argued that they had standing because they had a “personal interest in the outcome of the case beyond that of the general public.” In Harjo, the Board found that a petitioner who sought to cancel the “Redskins” registrations could satisfy the requirements when the petitioner demonstrated that:

1.)   he or she is a Native American enrolled in a tribe that is federally recognized; and that

2.)   he or she considered “Redskins” to be a derogatory term that referred to and offended Native Americans.

There is really no doubt that Petitioners satisfied those requirements.

Second, Petitioners argued that the challenged trademark registrations contain matter that may disparage Native Americans or bring them into contempt or disrepute. Petitioners stated the term “Redskins” in the trademark registrations clearly alluded to Native Americans. As a matter of fact, two of the registrations in dispute displayed the stereotypical “profile of a Native American man with an Indian headdress containing feathers.” The former PFI President, Jack Kent Cooke, even admitted that the name “Redskins” was meant to “honor Native Americans” and that the Redskins logo constituted a use of Native American symbols and rituals among other things. The aforementioned are obvious indicators that the name clearly alluded to Native Americans.

In addition, Petitioners argued that the term is perceived to be disparaging by a substantial composite of Native Americans. In Harjo, the court explained that one can prove a mark is disparaging to a substantial composite “based on the cumulative effect of the entire record.” In this case, the attorneys for Petitioners compiled evidence from dictionaries, newspaper articles, reference works, the National Congress of American Indians, empirical work of expert linguist Geoffrey Nunberg, and many other pieces of evidence to prove their point.

Jesse Witten, an attorney at Drinker Biddle & Reath stated, “we know the vast majority of the team’s fans aren’t racist, but they’re rooting for a team whose name is a racial slur.”

With all of the combined evidence, Petitioners strived to demonstrate that, by a preponderance of the evidence, the term “Redskins” is perceived as a disparaging mark to a substantial composite of the Native American population.

Third, the Petitioner argued that PFI’s laches defense lacks merit under the standard set forth in Harjo. The standard required “a showing of (1) undue delay in asserting one’s rights against another, and (2) material prejudice to the latter resulting from the delay.”

Petitioners did not “unduly [delay] in filing this petition.” In fact, they filed when Harjo was still active in the federal courts. Also, PFI suffered no material prejudice that resulted from the delay because PFI was fully aware since before Petitioners turned 18 that the trademark registrations were subject to cancellation.

Therefore, according to Petitioners’ Trial Brief, PFI cannot demonstrate the prejudice that is required to prove laches.

If Petitioners are successful in their suit, the “Redskins” trademark registrations will lose its protection. Consequently, PFI will struggle to “prevent trademark infringers from selling and importing knockoff paraphernalia.” However, there is not much else that will happen. The Redskins will still be able to “sale goods containing Redskins images [and] logos,” and will not have to pay damages to Petitioners.

So, what are your thoughts? Is this case even worth the litigation? Should the trademark registrations be cancelled or should PFI continue to have registered trademarks using the term “Redskins?”

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