WASHINGTON - America turns out Pontiacs, Jeep Cherokees, and Boeing Apache
helicopters by the thousands and sanctions sport teams called the Seminoles
and Fighting Sioux. There's only one Washington Redskins, however, and the
team continues to assert in federal court that its controversial name
honors America's first inhabitants.
On April 8, a packed courtroom in the U.S. Court of Appeals for the
District of Columbia heard oral arguments in Harjo et al. v. Pro-Football,
Inc., a case that alleges trademark disparagement of American Indians.
Within a stone's throw of the new American Indian museum, a three-judge
panel heard attorneys wrestle over such fine points as the "secondary
meaning" of "redskin," the etymological relation of the word to scalping,
and the difference between a redskin in the nation's capital, a brave in
Atlanta, and a chief in Kansas City.
The case partly turns on an arcane legal concept known as laches, a
doctrine that encourages the timely settlement of legal grievances. The
rationale for laches is that the undue passage of time can obscure evidence
and be prejudicial to defendants, the main argument put forth last week by
Harjo et al. wasn't filed until 1992 for a trademark registered in 1967.
Thomas Morrison, attorney for the appellants, or plaintiffs, explained that
the team was put on notice about the name as early as 1972 when Native
leaders sent a letter of concern and met with then-Redskins owner Edward
Bennett Williams. In 1968, Morrison added, the National Congress of
American Indians (NCAI) began a nationwide campaign against derogatory
Indian country's small demographic size and economic muscle figure heavily
in the case. "We wouldn't be having this discussion if we were dealing with
a different ethnic group," said Morrison, who spoke on behalf of NCAI.
Robert Raskopf, counsel for Pro-Football, argued that hardly any dictionary
in 1967 considered the primary definition of "redskin" offensive. A lively
debate ensued with the panel over the difference between a word's
definition and its connotation in the larger world.
Philip Mause, lead attorney for the plaintiffs, offered a simple Capitol
Hill litmus test: "A politician who went out to an Indian reservation would
never say, 'I'm here to explain my policies to you redskins.'"
The panel aggressively challenged counsel for both sides, admonishing
plaintiffs' attorneys for offering the threat of tribal termination as an
excuse for not bringing the case sooner and for providing insufficient
historical etymologies of the R-word.
On the other hand, it also reprimanded Raskopf for dismissing any
possibility of disparagement when the trademark was registered, for
rejecting a poll sample on the subject as "irrelevant" and for suggesting
that the Trademark Trial and Appeal Board (TTAB), vhich rendered an earlier
deciion, lacked experience in making decisions affecting social policy.
Harjo et al, named for lead appellant Suzan Shown Harjo, president of
Morning Star Institute and a columnist for Indian Country Today, has been
working its way through the courts for more than a decade.
In 1999, the TTAB of the U.S. Patent and Trademark Office ruled unanimously
that the logo disparaged American Indians under provisions of the Lanham
Act. In 2003, however, the U.S. District Court found the board had ruled on
"very limited" linguistic and survey findings and overruled the decision,
bringing about the current appeal.
The oral arguments gave voice to a number of key questions: How much
elapsed time is needed to apply a laches defense, especially when a matter
of public interest is at stake? If the meanings of words and symbols change
over time, how should trademark registration be affected? And who should
decide if a given symbol is disparaging - the group described, or society
as a whole?
At the case's core is a conflict between the inertia and power of brand
names and profits in a competitive culture built on investment and feelings
of pride and self-respect in a community with limited economic clout.
For years, the Washington team has attempted to link the history of the
football franchise with American Indians. William "Lone Star" Dietz, the
Redskins' first head coach, championed his Native ancestry and collected
annuity payments as an Oglala Lakota, an identity revealed as dubious in
extensive reporting by Indian Country Today.
As one member of the appeals panel noted, the Redskins could retain its
name even if the trademark were revoked. An unexpected consequence of
losing the trademark, he speculated, might be to make the name even more
widespread through the proliferation of unregulated merchandise.
Mause preferred to look at the matter from the other end, suggesting after
the hearing that merchandise sales would actually increase if the team
changed its name and began selling new paraphernalia.
"The main legal principle involved," said Mause, "is the deference courts
owe to administrative agencies in this area." The only possible reason the
Court of Appeals should reverse the 1999 decision by the TTAB, he noted,
"is if it was very clearly wrong." If the appellants lose, he added, they
may decide to appeal to the entire D.C. circuit.
A decision by the Court of Appeals is expected in three to four months.