Appeals court vacates decisions that canceled Redskins trademark registrations

Erik Brady | USA TODAY

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The U.S. Court of Appeals for the Fourth Circuit on Thursday vacated decisions that had canceled the Washington NFL team’s federal trademark registrations, officially ending a legal fight that lasted more than 25 years.

Legally speaking, the team won. Culturally speaking, Native American petitioners believe they did.

“We said the term ‘Redskins’ is disparaging and the courts agreed with us,” petitioner Amanda Blackhorse told USA TODAY Sports. “It’s just that now the Supreme Court says it’s OK to register a disparaging term.”

The Fourth Circuit’s decision has been inevitable since June, when the Supreme Court decided in another case that the disparagement clause of the Lanham Act is unconstitutional on First Amendment grounds. The Blackhorse case depended on that section of the 1946 law.

“While the litigation outcome is not what we were hoping for, my clients feel that they have won,” said Jesse Witten, whose firm represented the Blackhorse petitioners pro bono.

By email, he said: “Nothing in the Supreme Court’s opinion last summer or in today’s opinion by the Fourth Circuit undermines the conclusion reached by both the Trademark Trial and Appeal Board and the U.S. District Court that the team’s marks may disparage Native Americans.”

The Washington club has long maintained its team name is not disparaging; rulings by the U.S. Patent and Trademark Office’s appeals board in 2014 and by a district court judge in 2015 found otherwise. Those rulings remain in the public record, as the Fourth Circuit’s decision did not address disparagement.

Lisa Blatt, who argued the team’s case, said by email: “The conclusion of one district court judge and two PTO officials is not a cultural referendum. Because the statute the PTO acted under was unconstitutional, the Fourth Circuit did not have the occasion to rule on the Team’s appeal. We are convinced that had they ruled, they would have rejected the PTO’s and trial judge’s conclusion.”

Blatt added that polls show an “overwhelming majority” of Native Americans do not find the team’s name offensive. “We are pleased that the Fourth Circuit has ruled in our favor,” she said, “and that the case is finally over.”

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The Blackhorse case was the successor to a nearly identical case filed by Minneapolis attorney Stephen Baird on behalf of Suzan Shown Harjo and other Native American petitioners in September 1992, just as the Washington team began defense of its last Super Bowl championship.

“The team chooses to wrap itself in the American flag,” Baird said, “and say, ‘We have a First Amendment right to disparage.’ ”

Supreme Court case

Matal v. Tam is the Supreme Court case in which an Asian-American band called The Slants argued that the patent office had erred when it refused the band’s request for federal trademark registration. The band said that as Asian Americans, they were neutralizing a slur by re-appropriating it in a self-empowering way.

The patent office had found the term “Slants” disparaging to a substantial composite of Asian Americans, but in June the Supreme Court struck down the part of the Lanham Act that allowed the government to make such assessments.

“Anytime native people are winning,” Harjo said, “they change the rules.”

The patent office’s appeals board ruled in 1999 in Harjo’s case that the Washington team name may disparage a substantial composite of Native Americans. The team appealed to the U.S. District Court for the District of Columbia, which reversed the board’s decision in 2003, ruling in part that the petitioners had waited too long after turning 18 to file their action.

Then, even as procedural issues in the original case continued, a second group of younger petitioners, organized by Harjo and led by Blackhorse, filed the successor case in 2006. That case went active in 2010, when the Supreme Court declined to hear an appeal of the Harjo case.

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In 2014, the appeals board again canceled the team’s federal trademark registrations, finding that the team name was disparaging to a substantial composite of Native Americans between 1967 and 1990, when six trademark registrations were issued. The team then filed suit in U.S. District Court for the Eastern District of Virginia, where Judge Gerald Bruce Lee found in 2015 that the team name was disparaging during the relevant time. He cited dictionary definitions and decades of opposition by Native American leaders.

The team appealed to the Fourth Circuit in Richmond, Va., which issued a stay pending the outcome of Metal v. Tam. Once the Supreme Court struck down the Lanham Act’s disparagement clause, Thursday’s ruling was the sure outcome.

“That leaves in place what Judge Lee found — that the name is disparaging,” Blackhorse said. “I think that’s the piece that a lot of people are missing. The Supreme Court’s decision doesn’t mean the name is OK.”

Harjo sees no moral victory in the idea that the findings of disparagement stand.

“Daniel Snyder, and the people who do his bidding, don’t care about that,” she says of the Washington team owner. “They’re going to say, ‘We won.’ The point that (the petitioners) won on disparagement is a slender reed to hold onto.”

National conversation

Witten points out the petitioners’ quarter century of litigation led to a long-running national conversation. Media members and political leaders, including President Obama, weighed in. The twin cases produced hundreds of pages of testimony and documents and scores of politically charged arguments.

“Obviously, my clients did not succeed in having the team’s marks removed from the federal database of registered trademarks, which was the legal relief they were seeking,” Witten said. Still, “the case was a catalyst that generated enormous national interest in their cause.”

Baird, the Minneapolis attorney, said he was researching a law review article on the Lanham Act’s disparagement clause in 1992 when he called Harjo because he’d found her name in many of the press clippings on the issue of Native American team names. He told her he believed the Lanham Act could apply to the Washington team. Harjo was intrigued and soon asked Baird and his firm to take her case pro bono.

The Harjo case officially ended in 2010. The Blackhorse case officially ended Thursday.

“As native people, I don’t believe we have lost,” Blackhorse said. “The court did not rule on whether the R-word is disparaging. They ruled on an issue of free speech.”

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Harjo said she and other Native American activists have succeeded in convincing more than 2,000 schools to shed Native American team names since the 1960s.

“More than two-thirds of these names are gone — elementary, middle schools, junior colleges, and colleges and universities,” she said. “The only ones who won’t give an inch are pro sports. Universities have to worry about education and health and safety. Pro sports only care about liability. The owners are callous, avaricious people who have friends in high places.”

On the day in June that the Supreme Court undid the disparagement clause, Washington’s NFL club sent an email quoting its owner as THRILLED. That seemed a callback to 2013, when Snyder told USA TODAY Sports his team’s name will never change: “NEVER — you can use caps.”

Harjo said her fight against the Washington team name will go on for as long as it takes.

“I have children and grandchildren,” she said. “We’re still here. We’ve survived against all odds. I have great faith in my descendants. We will prevail at some point. Never is a long time.”