Redskins Trademarks Cancelled: Opposing Attorney Jesse Witten

LANHAM, Md. (CBSDC/AP) — The United States Trademark Trial and Appeal Board canceled six federal trademarks held by the Washington Redskins involving the team’s name in a landmark ruling issued Wednesday morning.

The 2-1 ruling comes after a campaign to change the name gained momentum over the past year.

The board wrote the following in its opinion: “We decide, based on the evidence properly before us, that these registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered.”

The cancellations are pending and the Redskins plan to appeal the decision. The ruling does not require the team change its name, but it does make it increasingly difficult enforce any trademark infringement claims against others printing the name on sweatshirts, apparel, or other team material.

“The team will certainly take the position that they still have protectable trademarks,” said Jesse Witten, the lead attorney representing a group of five Native Americans that filed the claim.

The case involves six registered trademarks that involve the use of the word Redskins, but it does not apply to the team’s logo.

“We’ve seen this story before,” Bob Raskopf, trademark attorney for the Redskins said. “And just like last time, today’s ruling will have no effect at all on the team’s ownership of and right to use the Redskins name and logo.”

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Witten is confident that the decision will be upheld on appeal.

“It was a careful decision. The Trademark Trial and Appeal Board wrote a very careful and thoughtful decision. There really can’t be any serious dispute that this is a disparaging term,” said Witten.

Redskins Fan Cries Over Ruling

However, Raskopf disagrees because the same evidence presented in an earlier ruling favorable to the team was again used in the latest litigation.

“We are confident we will prevail once again, and that the Trademark Trial and Appeal Board’s divided ruling will be overturned on appeal,” Raskopf said. “This case is no different than an earlier case, where the Board cancelled the Redskins’ trademark registrations, and where a federal district court disagreed and reversed the Board.”

The NFL has deferred requests for comment to Raskopf’s statement on behalf of the team.

Redskins owner Dan Snyder has refused to change the team’s name, citing tradition, but there has been growing pressure including statements in recent months from President Barack Obama, lawmakers of both parties and civil rights groups.

“Any name change is going to come because of all the popular attention and concern and pressure that the public is going to bring to bear on this,” said Witten. “I think that the tide has really turned and there is a widespread recognition right now that the team name really is not appropriate. It is an artifact from a much earlier era and it really needs to change.”

He noted that his clients, including Amanda Blackhorse, are “extremely elated” by the ruling.

The decision by the Trademark Trial and Appeal Board is similar to one it issued in 1999. That ruling was overturned in 2003 in large part on a technicality because the courts decided that the plaintiffs were too old.

The new case was launched in 2006 by a younger group of Native Americans. A hearing was held in March 2013.

“The Trademark Trial and Appeal Board agreed with our clients that the team’s name and trademarks disparage Native Americans. The Board ruled that the Trademark Office should never have registered these trademarks in the first place,” said Witten. “We presented a wide variety of evidence – including dictionary definitions and other reference works, newspaper clippings, movie clips, scholarly articles, expert linguist testimony, and evidence of the historic opposition by Native American groups – to demonstrate that the word ‘redskin’ is an ethnic slur. This victory was a long time coming and reflects the hard work of many attorneys at our firm.”

In Washington, lawmakers who have pushed for a name change applauded the decision. In May, half of the Senate wrote letters to the NFL urging the team to change its name.

Sen. Harry Reid (D-Nev.), who has been one of the most vocal critics of the name on Capitol Hill, spoke bluntly on the Senate floor.

“The writing is on the wall. It’s on the wall in giant blinking neon lights,” Reid said. “The name will change and justice will be done for the tribes in Nevada and across the nation who care so deeply about this issue.”

Oneida Indian Nation representative Ray Halbritter and National Congress of American Indians Executive Director Jackie Pata also praised the decision.

“The U.S. Patent Office has now restated the obvious truth that Native Americans, civil rights leaders, athletes, religious groups, state legislative bodies, Members of Congress and the president have all echoed: taxpayer resources cannot be used to help private companies profit off the promotion of dictionary defined racial slurs,” the groups said in a joint statement. “If the most basic sense of morality, decency and civility has not yet convinced the Washington team and the NFL to stop using this hateful slur, then hopefully today’s patent ruling will, if only because it imperils the ability of the team’s billionaire owner to keep profiting off the denigration and dehumanization of Native Americans.”

Redskins Statement on Ruling

“We’ve seen this story before. And just like last time, today’s ruling will have no effect at all on the team’s ownership of and right to use the Redskins name and logo.

We are confident we will prevail once again, and that the Trademark Trial and Appeal Board’s divided ruling will be overturned on appeal. This case is no different than an earlier case, where the Board cancelled the Redskins’ trademark registrations, and where a federal district court disagreed and reversed the Board.

As today’s dissenting opinion correctly states, “the same evidence previously found insufficient to support cancellation” here “remains insufficient” and does not support cancellation.

This ruling – which of course we will appeal – simply addresses the team’s federal trademark registrations, and the team will continue to own and be able to protect its marks without the registrations. The registrations will remain effective while the case is on appeal.

When the case first arose more than 20 years ago, a federal judge in the District of Columbia ruled on appeal in favor of the Washington Redskins and their trademark registrations.

Why?

As the district court’s ruling made clear in 2003, the evidence ‘is insufficient to conclude that during the relevant time periods the trademark at issue disparaged Native Americans…’ The court continued, ‘The Court concludes that the [Board’s] finding that the marks at issue ‘may disparage’ Native Americans is unsupported by substantial evidence, is logically flawed, and fails to apply the correct legal standard to its own findings of fact.’ Those aren’t my words. That was the court’s conclusion. We are confident that when a district court review’s today’s split decision, it will reach a similar conclusion.

In today’s ruling, the Board’s Marc Bergsman agreed, concluding in his dissenting opinion:

It is astounding that the petitioners did not submit any evidence regarding the Native American population during the relevant time frame, nor did they introduce any evidence or argument as to what comprises a substantial composite of that population thereby leaving it to the majority to make petitioner’s case have some semblance of meaning.

The evidence in the current claim is virtually identical to the evidence a federal judge decided was insufficient more than ten years ago. We expect the same ultimate outcome here.”

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