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Harjo appeal given boost

WASHINGTON - The legal team for the Washington Redskins has been forced to
punt.

The latest decision on Harjo et al. v. Pro Football Inc., handed down by
the U.S. Court of Appeals for the District of Columbia July 15, was a
qualified victory for plaintiffs in a saga that has wended its way through
the courts for better than a decade.

In 1992, Suzan Shown Harjo and co-plaintiffs filed a suit with the U.S.
Patent and Trademark Office alleging the Redskins name was defamatory to
American Indians. In 1999, the Trademark Trial and Appeal Board ruled
unanimously in their favor.

The U.S. District Court, however, overturned the decision in 2003. It found
that evidence for disparagement was unsupported and that the case had been
filed after undue delay. That ruling, the Court of Appeals announced
earlier this month - specifically the question of delay - was made on shaky
premises and remanded to the lower court for further evaluation.

The string of decisions on Harjo partly hinges on the arcane legal
principle of "laches." The concept is intended to protect potential
defendants from litigation after an unreasonable passage of time makes it
difficult to mount a legal defense.

Pro Football Inc. has long argued that the disparagement suit, brought by
plaintiffs in 1992 for a trademark registered in 1967, followed an
inappropriate delay.

The three-judge Court of Appeals panel saw otherwise. The panel advised
that laches should only be applied from the time a plaintiff reaches his
majority. Since one of the plaintiffs, Mateo Romero, was one year old in
1967 when the trademark was registered, the laches trigger for "starting
the clock," in his case, wasn't until many years later.

"Why should laches bar all Native Americans from challenging Pro Football's
'Redskins' trademark registrations because some Native Americans may have
slept on their right?" the court asked. In effect, the ruling asserted the
laches defense is not one-size-fits-all for a population that gains new
members.

Philip Mause, lead attorney for the plaintiffs, said the ruling
"establishes very important principles in our favor - that laches does not
ban individuals from challenging disparaging trademarks" except for
individual circumstances.

Whether they win the case or not, Mause, an attorney with Drinker, Biddle &
Reath, added, at the very least "Native Americans will be able to
ultimately get a ruling on disparagement."

The decision, Mause said, while challenging the laches defense, had little
to say on the question of disparagement itself.

Lead plaintiff Suzan Shown Harjo, president of Morning Star Institute and a
columnist for Indian Country Today, said she was "very pleased" the Court
of Appeals has retained jurisdiction in the case.

Given that two-thirds of Indian team mascot names have been eliminated over
the last 30 years, she said, a sea change in public attitudes has occurred.
"One day people will look back at the Redskins name and say, 'What the heck
were they thinking?' I'm confident that the plaintiffs and attorneys are on
the right side of this case and history."

Harjo added she was proud the plaintiffs have stood firm on their position
over years of litigating. "We've always had a commitment to the lawsuit for
the duration."

The Court of Appeals decision, said Mause, "keeps us alive."