Could The Battle Over 'Redskins' Change Trademark Law?

In his yearly State of Indian Nations address Thursday, Brian Cladoosby — president of the National Congress of American Indians — quoted an 1863 advertisement from a Minnesota newspaper: "The state reward for dead Indians has been increased to $200 for every redskin sent to Purgatory," he read.

Cladoosby then reaffirmed the NCAI's commitment to combating the Washington football team's use of the term and the stereotypes the word represents. "The single most offensive name that you can call an American Indian is redskin," he said.

The legal battle over the use of that term by the Washington football team has entered a new chapter. This month, the U.S. Department of Justice announced that it would intervene in a lawsuit that the team filed against five Native American activists. Back in June, those activists won a petition for the cancellation of the team's trademark on the grounds that it's racially offensive.

"We are pleased that the Department of Justice is intervening on our side," said Jesse Witten, the attorney for one of the Native Americans named in the suit, in a statement. He believes that the Justice Department's action stokes momentum for those who are fighting the team name. "It will be a big help."

Some trademark experts disagree.

"It's like scoring a home run in the bottom of the first," says trademark attorney Josh Gerben. "You've still got eight innings to go. It's not an overwhelming victory for the Native Americans at this point."

In fact, the Department of Justice action doesn't directly address whether the team name is a slur unworthy of trademark protection. Acting Assistant Attorney General Joyce Branda said in a recent statement, "The Department of Justice is dedicated to defending the constitutionality of the important statute ensuring that trademark issues involving disparaging and derogatory language are dealt with fairly."

Gerben puts it this way: "They just want to protect the constitutionality of the Lanham Act for the future," he says.

What is the Lanham Act?

The Lanham Act is "the federal statute establishing a trademark register which gives exclusive rights to use a trademark throughout the United States," says attorney Jay Hines. Hines has worked as a senior attorney with the U.S. Patent and Trademark Office, whose appeal board canceled Washington's registrations in June following an eight-year legal battle.

The Lanham Act, which was signed into law in 1946, states that a trademark can be denied or canceled if it is "disparaging of persons, institutions or national symbols." The definition of "disparaging" has remained subjective to be flexible to changes in public opinion and context over time. So there are no specific guidelines established to determine whether a word or phrase violates this statute, which means the decision is based on the opinion of an examiner.

"There's literally one person who makes that decision," says Gerben. "If you appeal that decision, you go in front of a group of judges at the trademark office. Now you have a total of four people deciding if something is offensive or not to the rest of America."

Team owner Daniel Snyder has vowed to never change the name. Attorneys for Snyder argue that because there's not a solid definition of what makes a word disparaging, the Lanham Act is too vague, making it an unconstitutional violation of free speech.

The dispute over the team's name isn't the only controversial case questioning the reach of the Lanham Act. Gerben mentions The Slants, a rock band fighting the U.S. Patent and Trademark Office over the denial of its trademark applications. The office ruled that "slants" is offensive to people of Asian descent. Yet all six members of the band are Asian-American.

The Future of Trademarks

According to both Gerben and Hines, the Washington football team's challenge to the Lanham Act will be a tough sell. The First Amendment doesn't protect against obscenity, defamation, incitement to violence or fighting words, categories the term "redskin" may fit because it is a dictionary-defined racial slur.

Both lawyers agree that any outcome could have a serious impact on this area of trademark law.

"Whichever way this falls, it certainly will be looked at by other groups who are challenging trademark rights based on this portion of the statute," Hines says. "Religious or other ethnic groups who may be offended by someone filing a mark might petition to cancel it if the Native Americans are successful here."

Gerben says a legal victory for the Washington football team, in particular, would discourage these kinds of challenges to trademarks. "If the Redskins were to win or — ultimately — the Supreme Court was to rule that this is an unconstitutional law, then it would completely bar groups like [the Native Americans] from doing so in the future," he says.

The number of calls to change the name continues to grow. In addition to Cladoosby's State of Indian Nations address, this week a civil rights group with ties to the NFL called on the league to force a name change.

Despite growing opposition, the Washington team's efforts to overturn the Patent and Trademark Office's initial ruling are far from over. Should the team lose this lawsuit, it has the option to appeal all the way up to the Supreme Court.

Still, Hines thinks the Washington team is fighting an uphill battle that will eventually result in a loss. He says that much like the Lanham Act allows for change in context over time, the team will eventually have to accept that society's attitudes toward racially motivated team names have progressed.

"We're going to be waiting years to find out what happens," he says. "But I personally think that change is inevitable for the team. So I would advise them to find a good, new trademark that people can get behind."