Federal Judge Orders Cancellation of Washington Redskins’ Trademarks

By Barbara Hollingsworth | July 8, 2015 | 1:48 PM EDT

The Washington Redskins' logo on display at the team's stadium in Landover, MD. (AP photo)

(CNSNews.com) -- A federal judge in Virginia has ordered the U.S. Patent and Trademark Office (PTO) to cancel six of the Washington Redskins’ registered trademarks because their depiction of an Indian brave is considered offensive to Native Americans.

“The evidence before the Court supports the legal conclusion that between 1967 [when the first Redskins’ trademark was registered] and 1990, the Redskins Marks consisted of matter that ‘may disparage’ a substantial composite of Native Americans,” U.S. District Judge Gerald Lee wrote in his July 8 ruling in Pro-Football Inc. v. Blackhorse.

In his 70-page decision, Lee rejected the Redskins’ argument that the trademark cancellation was an infringement of the teams’ First and Fifth Amendment rights.

“The federal trademark registration program is government speech and is therefore exempt from First Amendment scrutiny,” he ruled, adding that “a trademark registration is not considered property under the Fifth Amendment.”

The order does not prevent the pro football team from continuing to use the logo. However, the loss of federal trademark protection could jeopardize some of its commercial and licensing activities.

“To be clear, the Court’s judgment is not an order that precludes PFI [Pro-Football, Inc.] from using the marks in commerce,” Lee wrote. “Nor does the Court’s ruling that the Redskin Marks consisted of matter that ‘may disparage’ a substantial composite of Native Americans during the relevant time period preclude sports fans from collecting, wearing, or displaying the Redskins Marks.

“Courts do not create trademarks; only businesses like PFI control their own destiny with respect to how the public discerns the source and origin of PFI’s goods and services. What actions, if any, PFI takes going forward with the marks are a business judgment beyond the purview of this Court’s jurisdiction.”

“Today's ruling by the District Court resoundingly affirmed the Trademark Office’s decision that the team’s trademark registrations should never have been issued,” said Jesse Witten, an attorney for DrinkerBiddle who litigated the case on behalf of the Native Americans.

Redskins owner Dan Snyder has repeatedly vowed not to change the team’s name, so the Redskins will likely appeal the decision.

Judge Lee’s ruling came in a lawsuit filed by the team against Amanda Blackhorse, a member of the Navajo Nation, and four other Native American activists who had petitioned the PTO to cancel the team’s trademarks.

Last year, the federal Trademark Trial and Appeal Board agreed that the logo “may disparage” Native Americans who consider the team name a racial slur and cancelled six of the Redskins’ trademark registrations on a 2-1 vote, ruling that they were ineligible for trademark protection under the Lanham Act.

Section 2(a) of the Lanham Act says that PTO should reject trademark registrations that “consists of or comprises immoral, deceptive, or scandalous matter, or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute…”

The board rejected the team’s argument that there was no proof that a majority of Native Americans were offended by the Redskins’ logo.

“At a minimum, approximately thirty percent of Native Americans found the term to be offensive….To determine otherwise means it is acceptable to subject to disparagement 1 out of every 3 individuals,” the board ruled at the time.

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