The Trademark Trial and Appeal Board canceled six trademark registrations owned by the Washington NFL club today, ruling that the term “Redskins” was disparaging to “a substantial composite” of American Indians when the marks were granted between 1967 and 1990.
The Washington team can appeal and retain its federal trademark rights in the meantime. And even if the club loses on appeal, it can continue to use the name, as it has for more than 80 years. But without federal trademark protection, others could potentially use the team’s name and logos to sell merchandise with impunity, although owners of unregistered marks can still try to protect them through state statutes or common law.
The TTAB, an independent administrative tribunal within the U.S. Patent and Trademark Office, ruled that by a preponderance of the evidence petitioners had proved the term was disparaging to Native Americans when the six marks were registered.
“We decide, based on the evidence properly before us, that these registrations must be canceled because they were disparaging to Native Americans at the respective times they were registered,” the opinion says.
“I am extremely happy that the TTAB ruled in our favor,” named petitioner Amanda Blackhorse said in a statement. “It is a great victory for Native Americans and for all Americans.”
Senate Majority Leader Harry Reid said on the Senate floor that “the handwriting is on the wall” and the team’s name will change some day.
The Washington team did not immediately return a request for comment. The NFL, which pays the team’s attorneys in the case, also did not immediately return a request for comment.
When Washington team owner Daniel Snyder told USA TODAY Sports in May 2013 that he would never change his team’s name — “NEVER, you can use caps” — the specific question he was answering was whether he would consider changing the name should his team lose its federal trademark protection.
Pressure to change the name has only intensified since. The Oneida Indian Nation launched a well-financed “Change the Mascot” campaign a month after Snyder’s all-caps comment. Critics who’ve suggested Snyder should at least consider a name change have ranged from President Obama to several of the team’s former players. Today’s ruling will amp up that pressure, even if from a legal standpoint little changes pending appeal.
Suzan Shown Harjo was lead petitioner in the original trademark case, which began in 1992. The TTAB canceled the team’s trademarks in 1999, just as it did today, but the team won Harjo v. Pro Football Inc. on appeal in 2003 in part because the district court ruled that the plaintiffs had waited too long to file their suit.
Harjo organized a second suit, with younger plaintiffs, including named petitioner Amanda Blackhorse, in 2006. The original case did not end until the Supreme Court declined to hear it in 2009. Blackhorse v. Pro Football Inc. went active at that point and a 90-minute hearing was heard before the trademark board on March 7, 2013. The board took more than a year to come to today’s ruling.
“We filed our petition eight years ago and it has been a tough battle ever since,” Blackhorse said. “I hope this ruling brings us a step closer to that inevitable day when the name of the Washington football team will be changed.”
Jesse Witten, lead attorney for the plaintiffs, said in a statement that the board “agreed with our clients that the team’s name and trademarks disparage Native Americans. The Board ruled that the Trademark Office should never have registered these trademarks in the first place.”
Native American petitioners in the case included Blackhorse, Marcus Briggs-Cloud, Philip Gover, Jillian Pappan and Courtney Tsotigh.
“The team’s name is racist and derogatory,” Blackhorse said . “I’ve said it before and I will say it again — if people wouldn’t dare call a Native American a ‘redskin’ because they know it is offensive, how can an NFL football team have this name?”