The R-Word: Trademarks, Race, and the Washington Professional Football Franchise

The Washington Redskins have limped out of the starting gate this year, making it to the quarter mark of the NFL season with a disappointing 1-3 record. While the on-field play has many in the nation’s capital concerned, an off-field controversy that has been brewing for years may cause even worse headaches for the franchise.

Backlash against the team’s nickname appears to have reached a head in recent months. In his column last month, senior NFL writer for Sports Illustrated and editor-in-chief of Peter King declared that he will no longer use the term “Redskins” when referring to the Washington football franchise. A number of Washington D.C.-based publications have made the same choice as King, with one paper choosing to refer to the team only as the “Pigskins.” The Oneida Indian Nation recently announced plans for a radio ad campaign urging the team to change its nickname. Congress has even joined in on the act: a bill which would remove federal trademark protection for any marks that use the term “redskin(s)” was introduced earlier this year, and in May ten members of Congress sent letters to NFL Commissioner Roger Goodell and Redskins owner Dan Snyder calling for a name change.

Those public denunciations of the Redskins nickname may generate headlines, but a petition currently before the Trademark Trial and Appeal Board (TTAB) of the U.S. Patent and Trademark Office perhaps has more bite. Styled Blackhorse v. Pro-Football, Inc., the petition seeks the cancellation of all trademarks held by the Washington football franchise containing the word “redskin(s).” The petition alleges that those trademarks violate Section 2(a) of the Lanham Act by being “disparaging” and “scandalous,” and by casting Native Americans into “contempt or disrepute.”  Oral hearings were held before the TTAB in March, and a decision could be handed down any day now.

Blackhorse is not the first challenge to the legality of the Redskins’ trademarks to be heard by the TTAB: a 1992 petition filed by a group of seven Native Americans alleged the same violations of Section 2(a) of the Lanham Act as the current Blackhorse petition. See Harjo, 50 U.S.P.Q.2d 1705 (Trademark Tr. & App. Bd. Apr. 2, 1999). There, the TTAB agreed with the petitioners that the trademarks were disparaging and brought Native Americans into contempt or disrepute, and in 1999 the Board issued a cancellation order for the contested marks. Id. The cancellation orders were later reversed and the petition was dismissed, however, by the D.C. District Court in Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96, (D.D.C. 2003), after the court found that the TTAB petition was barred by the doctrine of laches. In other words, the court found that the petitioners waited too long to challenge the marks after becoming aware of them. (Suzan Harjo, born 22 years before the first trademark at issue was registered, admitted she had been aware of the Washington Redskins since she was a child; the petitioners in Blackhorse ranged in age from 18 to 24 at the time that petition was filed, and they maintain that they were unaware of the team and the trademarks until shortly before submitting their petition with the TTAB.)

Before reaching the ultimate conclusion that the petition should be dismissed, however, the Harjo court held that the TTAB also lacked substantial evidence to conclude that the challenged trademarks disparaged Native Americans or brought them into disrepute. Harjo at 113. While the opinion made clear that they were not “making any statement on the appropriateness of Native American imagery for team names” or “whether the use of the term ‘Washington Redskins’ may be disparaging to Native Americans,” the court’s conclusions provide insight into how the TTAB (and the courts that handle the inevitable appeals) may reach their decisions in Blackhorse.

Under the applicable trademark law the question before the TTAB – as it was in Harjo – is whether the “redskin(s)” trademarks, when used in connection with the franchise’s entertainment product and services, was viewed as disparaging by a substantial composite of Native Americans during the relevant time period. The relevant time period here is the period from 1967 to 1990, the dates the first and last challenged marks were registered. Survey evidence relied on by the TTAB was ruled irrelevant by the Harjo court on the grounds that the survey concerned only Native Americans’ perception of the term “redskin” when used to refer to Native Americans, not when used in connection with football; the 131 participants who claimed the term was disparaging in no way could be said to represent a “substantial composite” of Native Americans; and the results reflected then-current opinions, not the perception held during the relevant time period (the surveys were conducted in 1996). Harjo at 132. Dictionary definitions and the testimony of linguistics experts, which together established at most that some Americans often considered the term “redskin” offensive during the relevant time frame, were also ruled irrelevant by the court. Id. at 130. Finally, and perhaps most interestingly, the court ruled that the TTAB incorrectly based its decision on evidence that the word “redskin” itself had a historic and continued use and understanding by the general public as a disparaging term when referring to Native Americans because, again, the evidence offered no insight into whether Native Americans perceived the term as derogatory in the context of professional football. Id. at 133-34.

With that last conclusion the Harjo court appeared to say “Evidence that a term is understood by everyone else to be disparaging most of the time is not evidence that the term is disparaging to you some of the time.” Technically this line of reasoning checks out but in practice it can lead to some unusual results, like here where the group who supposedly doesn’t understand the term in question to be disparaging is the exact group being disparaged by the term. It will be interesting to see if the TTAB and the subsequent reviewing courts in the Blackhorse petition continue to stick to the bright-line separation between “redskins” in reference to Native Americans and “Redskins” in reference to football that the court in Harjo followed. It seems that in these cases, where the term even in its separate contexts is so closely related, a blurring of the line should be allowed.

Ultimately, though, the outcome of Blackhorse will not determine whether the professional football franchise in Washington D.C. keeps or changes its nickname. Should the team be stripped of its federal trademark protection it will still be able to use the marks and they will continue to be protected under state trademark law. Whether the lack of federal protection would result in a substantial enough economic hit to the franchise’s estimated $381 million in annual revenue to force a switch to a more Lanham Act-friendly moniker is not easy to predict. Loss of sponsorship money due to opposition to the Redskins name may grab management’s attention more strongly – imagine if FedEx chose to opt-out of its $207 million stadium naming rights agreement – yet any damage is likely to be short-lived; behind every company that suddenly grows a conscience stands another company willing to take its place. It seems, then, that outside forces, whether legal or economic, are unlikely to lead to a new nickname in Washington. Often, change must come from within.

The University of Mississippi School of Law – and, by extension, the Mississippi Sports Law Review – is housed under an institution that knows the struggles of change all too well. The University of Mississippi has its own complicated relationship with symbols, history, and race, yet unlike the NFL franchise in the nation’s capital the University has taken proactive steps to confront and correct its transgressions, both real and perceived. Within the past two decades the University administration has effectively banned Confederate flags from all sporting events; prohibited the band from playing “From Dixie With Love” (due to a chant fans performed at the end of the song associated with pro-segregationist values); and replaced longtime mascot Colonel Reb, a character perceived by many to represent a southern plantation owner. Proponents of these symbols saw them as sources of pride and nods to Ole Miss’s past; traditions that ensured the school’s roots would not soon be forgotten. Opponents saw those very same symbols as starred-and-barred markers of oppression and bigotry, reminders of a history best left behind. Caught somewhere between its affection for its past and the needs and aspirations for its present and future, the University decided to change its course.

Faced with many of the same competing influences, the Washington professional football franchise appears to have reached a crossroads. The question now is what path will it choose.