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Appeals court enters battle over 'Redskins' names
Monday, April 11, 2005

The debate over the use of the Washington Redskins trademarks was back in court on Friday as Native activists and the nation's largest Indian organizations declared the symbols offensive to Native people.

Led by Suzan Shown Harjo, Muscogee/Cheyenne, a group of seven Native activists of all ages filed a challenge to the team's names in 1992. They sought the cancellation of all Redskins marks under a federal law that bars the registration of symbols that disparage people.

Several year later, the activists won a significant victory. In April 1999, the Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office said Redskins names subjected Native people to "contempt" and "disrepute."

But after lengthy delays caused by the Washington Redskins' litigation tactics, a federal judge in October 2003 reversed the decision. U.S. District Judge Colleen Kollar-Kotelly said she would not endorse the team symbols but ruled that there wasn't enough evidence to prove they disparage Native Americans.

That point was considered by the D.C. Circuit Court of Appeals during a 40-minute hearing on Friday. Two of the judges questioned the evidence submitted by the Harjo plaintiffs and the National Congress of American Indians, the National Indian Education Association, National Indian Youth Council and the Native American Rights Fund.

But a more prominent issue was whether Harjo and others opposed to the name waited too long to file their case. All three judges on the appeals court panel focused much of their questioning on whether the passage of time weighed in the Redskins' favor.

Even though the names have been registered since the late 1960s, "nothing was done about cancellation" until 30 years later, said Judge David B. Sentelle.

Philip J. Mause, an attorney for seven activists, cited a number of cases from other circuits where trademarks were canceled despite even longer delays. "Registered marks can be challenged at any time, he told the court.

He also pointed out that one of the plaintiffs -- Mateo Romero of Cochiti Pueblo, New Mexico -- wasn't born when the first Redskins name was registered. "Is he guilty of undue delay?" Mause asked.

Thomas Morrison, an attorney for NCAI and the other groups, said the battle represented a fundamental case of discrimination. He cited opposition to the team names as early as 1972 -- when a meeting between the Redskins and some tribal leaders occurred.

"I don't think we would be having this debate were it a different ethnic group," he said.

But Robert Raskopf said there was no evidence that the "Redskins" name was offensive when it was first registered in 1967. He said the team has been "proudly known as the Washington Redskins" for decades.

There is a "problem of a connection" between the use of the name and evidence submitted by the Native activists and groups, he told the court.

The judges appeared as troubled with this argument as they were with the issue of time. Judge David S. Tatel questioned Raskopf's claim that the use of "the N word" could be approved so long as it wasn't used in a disparaging way.

The team has previously claimed that cancellation of the marks would be financially devastating. According to a Washington Post account from July 24, Redskins merchandise brings in $5 million a year.

Pro-Football Inc., the corporation that owns the team, could keep selling items bearing the name and logo if the marks were canceled. The team just couldn't bring challenges to others who produce "Redskins" merchandise.

It is not known when the court will issue a decision. After the hearing, Harjo said a negative ruling could produce a split on trademark issues among the circuit courts, making the case one for U.S. Supreme Court review.

Lower Court Decision:
Pro-Football, Inc. v. Harjo (September 30, 2003)

Patent and Trademark Office Ruling:
Trademark Trial and Appeal Board (1999)

Relevant Links:
Redskins - http://www.redskins.com