Judge sides against Native activists in 'Redskins' suit

Monday, July 14, 2008
Filed Under: Law

Native American activists lead a protest against Washington "Redskins" football team. File Photo © DRM.

Correction/Clarification: Suzan Shown Harjo, the lead plaintiff, pointed out that the appeals court has retained jurisdiction over the case. She said the lawsuit is still alive before the D.C. Circuit Court of Appeals, with briefs due August 11.

For the second time in the history of the long-running case, a federal judge has refused to cancel the trademarks of the Washington Redskins football team.

In 1992, seven Native activists asked the U.S. Patent and Trademark Office to cancel six trademarks registered in the "Redskins" name. The plaintiffs said the use of the word was offensive to Native Americans.

After seven years, the patent's office Trademark Trial and Appeal Board sided with the activists. The 1999 ruling said the continued use of "Redskins" was "disparaging" and subjected Native Americans to "contempt" and "disrepute."

The Redskins team, backed by the National Football League , appealed the decision to Judge Colleen Kollar-Kotelly in Washington, D.C. In September 2003, she overturned the TTAB ruling and cited the "economic hardship" that the team would face if the marks were canceled.

Kollar-Kotelly cautioned that she wasn't sanctioning the use of the "Redskins" name. But she said the TTAB failed to gather enough evidence to determine if the marks were offensive.

The judge also said the plaintiffs waited too long to pursue their objections. The first "Redskins" mark was registered in 1967, more than two decades before the claim was filed.

The activists challenged Kollar-Kotelly's decision and saw a minor victory in July 2005. The D.C. Circuit Court of Appeals said the case was prematurely dismissed because the one of the activists -- Mateo Romero, an artist from Cochiti Pueblo in New Mexico, was only one year old at the time of the first registration.

But on remand, Kollar-Kotelly again ruled that Romero waited too long to pursue his claim. He should have filed a complaint soon after he turned 18, the judge said.

"As noted above, Defendant Romero waited almost eight years -- seven years, nine months, to be precise -- after reaching the age of majority before petitioning to cancel the six trademarks in question," Kollar-Kotelly wrote. "That delay is 'unusually long by any standard.'"

The 28-page decision also reaffirms the team's long-held stance that cancellation of the marks would impose an economic hardship. The exact amounts are not public because Kollar-Kotelly redacted dollar values regarding merchandising and licensing from the ruling.

Kollar-Kotelly noted that the activists, a group that includes Suzan Shown Harjo of the Morning Star Institute, legal scholar Vine Deloria Jr. and educator Norbert Hill, failed to contest the team's economic claims.

Barring another favorable ruling from the D.C. Circuit, the July 10 decision appears to put an end to the saga. But a separate petition that was filed by six young Native activists is still pending before the patent office.

The petition was filed in August 2006 in hopes of overcoming the issues present in Kollar-Kotelly's ruling. At the time, all of the activists were between the ages of 18 and 24.

The judge's latest decision, however, poses some significant hurdles even if the young group succeeds before the TTAB like their predecessors. The economic and trial prejudice faced by the team would appear to remain factors if the case makes it to the federal court level again.

The National Congress of American Indians , the National Indian Education Association and other national and local groups support the cancellation of the marks. The "Redskins" are one of the few professional sports teams that continue to use Indian imagery despite opposition in Indian Country.

Hundreds of public and private schools, along with colleges and universities, have eliminated their Indian imagery in the last few decades. In August 2005, the NCAA adopted a policy against the use of such symbols by its member institutions, a move that has led to the removal of some of the most controversial Indian mascots and nicknames.

http://www.indianz.com/News/2008/009789.asp