Is ‘Redskins’ Too Offensive to be Trademarked?

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Is ‘Redskins’ Too Offensive to be Trademarked?

The Trademark Trial and Appeals Board, the TTAB, has recently heard a case to determine if the Washington Redskins name is disparaging, and therefore should be stripped of its protected trademark status. This has been a long disputed issue. The case was organized by Suzan Shown Harjo, president of the advocacy group the Morning Star Institute. The lead plaintiff is Amanda Blackhorse, a young Native American, who believes the term ‘redskin’ to be a racial slur. Harjo was famously the lead plaintiff on Pro-Football, Inc. v. Harjo, a series of cases which was first brought in 1992, and wasn’t fully decided until the Supreme Court decided not to hear the case in 2009.  see Harjo v. Pro-Football Inc., 1994 TTAB LEXIS 9, 30 U.S.P.Q.2d 1828, 1831 (TTAB 1994); Harjo v. Pro Football Inc., 50 U.S.P.Q. 2d 1705, 1749 (TTAB 1999); Pro-Football, Inc. v. Harjo, 415 F.3d 44 (D.C. Cir. 2005); Pro-Football, Inc. v. Harjo, 567 F. Supp. 2d 46 (D.D.C. 2008) ; Pro Football, Inc. v. Harjo, 565 F.3d 880 (D.C. Cir. 2009); certiorari denied by Harjo v. Pro-Football, 2009 U.S. LEXIS 8206 (U.S., Nov. 16, 2009). That 17 year long series of cases was ultimately decided on a technicality, the doctrine of laches, and the courts had not determined if ‘redskins’ is offensive. With the current group of plaintiffs being young enough to have satisfied the doctrine of laches, it is hoped that this case will finally determine the issue, although this case is likely to be appealed multiple times regardless of the decision.

The current case, Blackhorse v. Pro-Football, Inc., illustrates the principle codified in the Lanham Act at 15 U.S.C. §1052(a), that trademarks which depict “immoral, deceptive, or scandalous matter” or “matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols” shall not be registered. §1064(3) of the Lanham Act allows for the cancellation of a trademark which violates §1052(a). Examples of trademarks which were denied as scandalous or disparaging include: “Bullshit” as mark for attache cases, handbags, purses, belts, and wallets, In re Tinseltown, Inc. 212 USPQ 863, (1981, TMT App Bd), “Bubby Trap” for brassieres, In re Runsdorf  171 USPQ 443, (1971, TMT App Bd), “Khoran” for alcoholic beverages, In re Lebanese Arak Corp.  94 USPQ2d 1215, (2010, TMT App Bd), “1-800-JACK-OFF” for an adult phone service, In re Blvd. Entm’t  334 F3d 1336, (2003, CA FC), “Only a breast in the mouth is better than a leg in the hand” for restaurant services Bromberg v Carmel Self Service, Inc. 198 USPQ 176. (1978, TMT App Bd), and “Black Tail” for entertainment magazines, Boswell v Mavety Media Group 52 USPQ2d 1600, (1999, TMT App Bd). Examples of ethnic slurs which were held not to be disparaging include: “JAP” for clothing, In re Condas S. A. 188 USPQ 544, (1975, TMT App Bd), and “The Memphis Mafia” used for entertainment services, Order Sons of Italy in Am. v Memphis Mafia, Inc. 52 USPQ2d 1364, (1999, TMT App Bd).

Amanda Blackhorse has presented quite a bit of evidence of the offensiveness of the phrase. This includes: national polls of Native Americans and the public at large of the connotations of the phrase, the dictionary definitions which define the phrase as offensive, academic studies detailing the derogatory usage of the phrase in popular media prior to the 1980’s, and the manner in which the team has used the phrase. Whether this evidence is sufficient is a matter for the TTAB. But, should the TTAB, and the appellate courts who are likely to hear the case afterward, strip the Redskins of the trademark, this would not mean that the team would be forced to change their name. This would only prevent the team from stopping others from using the trademark. In actuality, this would mean that anyone could begin selling Washington Redskins apparel without the consent of the team. This would likely mean less income in apparel sales, but not prohibitively so. Mostly, a decision for Blackhorse would be a moral victory. This would be the federal government officially stating that this name is offensive. This would be far more public embarrassing for the team, and their owner Dan Snyder, than it would be financially disruptive.