- The Washington Times - Wednesday, July 8, 2015

A federal court ruling ordering the cancellation of the Washington Redskins‘ trademarks could pave the way for government overreach in the federal trademark office but is unlikely to lead to any immediate problems for other sports teams under scrutiny for use of American Indian imagery or names, according to analysts monitoring the case.

U.S. District Judge Gerald Bruce Lee ruled Wednesday in favor of five American Indians who argued that the Redskins trademark is derogatory and ordered the cancellation of the team’s federal trademark registrations. The judge found that the six trademarks at issue “consisted of matter that ‘may disparage’ a substantial composite of Native Americans.”

Redskins president Bruce Allen said the team was surprised by the ruling and would appeal the case.

“We are convinced that we will win because the facts and the law are on the side of our franchise that has proudly used the name Redskins for more than 80 years,” Mr. Allen said.

The ruling could lay a path for the U.S. Patent and Trademark Office to be more selective about awarding trademarks, said Rebecca Glenberg, legal director for the American Civil Liberties Union in Virginia.

“The ruling says that a trademark holder’s First Amendment rights are not implicated at all by the government’s decision to register or not register the trademark,” Ms. Glenberg said. “If that’s true, then there is nothing to prevent the government from playing favorites when it decides which companies and organizations get federal trademark registration.”

The ACLU sided with the Redskins in the case, arguing in a friend-of-the-court brief that a cancellation of the trademark would be a violation of the First Amendment — a claim the judge rejected on the basis that the federal trademark program represents government speech rather than private speech.

However, the ACLU remains opposed to the use of the team name, calling it “at least problematic, if not outright racist.”

“This ruling really is much broader than just the Washington football team’s terrible name,” Ms. Glenberg said.

Several sports teams using American Indian imagery and names — including Major League Baseball’s Cleveland Indians, with its Chief Wahoo mascot, and the Atlanta Braves, with its tomahawk chop — have come under attack in recent years as well.

Although the U.S. District Court ruling on the Redskins trademarks should be a source of concern for other teams with American Indian imagery, it won’t start a domino effect of trademark cancellations, said Michael McCann, director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.

“That’s a significant holding,” Mr. McCann said. “But the truth is, those other teams that have associations with Native Americans, each name has to be treated differently. Evidence would have to show that each of those names and images is offensive.”

To score the same sort of victory, those in opposition to the names would have to prove that the names or logos of other sports teams were offensive at the time they were trademarked, said Mitchell Stabbe, a Washington-based trademark lawyer.

In the case of the Redskins, Judge Lee considered the use of the word spanning back to 1967 with evidence including scholarly articles, newspaper clips and statements made by American Indians.

“None of those cases are as strong as the argument about the word ‘redskins,’” Mr. Stabbe said of other sports teams.

A spokesman for the Cleveland Indians said the team had no comment on the ruling. A spokeswoman for the Atlanta Braves did not return a call for comment.

Private vs. government speech

Although Judge Lee’s ruling stipulates that the Redskins trademarks will not be canceled until the team has exhausted all of its options in the federal appeals process, the decision in no way forces the team to stop using the name. Instead, it will create hurdles for the team to protect its brand.

One such benefit of federal registration would allow the team to record its trademark with U.S. Customs and Border Protection so that officers could be on the lookout for imports of black market merchandise, Mr. Stabbe said.

Judge Lee’s ruling upheld a decision last year by the U.S. Patent Office’s Trademark Trial and Appeal Board, which called the trademarks disparaging and ordered a cancellation of the registrations.

The Redskins sought to overturn the ruling by filing a lawsuit in federal court in Alexandria, Virginia, against the five American Indian activists who pursued the trademark cancellation. The team argued that a cancellation of the trademarks would violate its First Amendment rights to free speech.

“The federal trademark program is government speech and is therefore exempt from First Amendment scrutiny,” the judge said in his 70-page opinion.

Calls for the Redskins to change the name have grown louder in recent years, with local and federal officials weighing in.

The District’s nonvoting representative to Congress, Delegate Eleanor Holmes Norton, said she hopes the loss in federal court would compel team owner Dan Snyder to get “on with his real business of getting the team back in winning form and selecting a new mascot.”

“The national public outcry has been overwhelming, and it is clear residents do not want their beloved Washington football team name to be aligned with the disparagement of Native Americans or any other ethnic group,” Ms. Norton said.

D.C. officials have tried to lure the team back to the city with proposals to demolish the RFK Stadium and rebuild a new stadium in its place, where the Redskins played before leaving for FedEx Field in Prince George’s County, Maryland.

However the National Park Service this month said it won’t grant a lease of the land for the stadium because Interior Secretary Sally Jewell opposes the team’s name.

Despite the political and legal pressure to change the name, Mr. Snyder has vowed never to acquiesce.

“There isn’t going to be a court decision that requires the team to drop the name,” Mr. McCann said. “The Redskins will keep the team name as long as they want. The only mechanism that would force them to change it would be pressure by the NFL and the commissioner.”

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