Washington Redskins Litigation Will Continue

The Washington Redskins will get to keep their name—for now. For almost two decades a group of Native Americans has been challenging what they allege to be an offensive team name and logo. On Monday, though, the battle finally ran out of steam after the Supreme Court declined to review the case.  Still, football fans shouldn’t take out their jerseys and headdresses to celebrate quite yet. The litigation surrounding the Redskins is set to keep going.

The Supreme Court was being asked to decide whether this case was brought too late, not whether it’s offensive. A group of seven Native Americans initially filed suit back in 1992. By that time, the Washington Redskins had been using the name for more than 25 years. U.S. District Judge Colleen Kollar-Kotelly, who ruled in favor of the team in 2003, noted that the youngest plaintiff was almost 36 years old at the time the suit was filed. Judge Kollar-Kotelly insinuated that if the name was truly that offensive, the suit should have been filed earlier. In short, she implied that someone needed to file a suit as soon as they were legally capable; someone who just turned 18 years old. So, in August 2006, a group of Native Americans ranging in age from 18 to 24 filed an identical lawsuit, Blackhorse v. Pro Football, Inc, to challenge the offensive team name and logo issues without running into any time-limitation challenges. 

The Blackhorse suit will challenge six Redskins trademarks, including the image of the Native American on the helmet, the image of a spear, the script version of the word Redskins, and the name of the professional cheerleading squad, the Redskinettes. In 1967, the team officially started to protect these marks under federal copyright law. Technically, logos, words or symbols can’t be registered by the Patent and Trademark Office if they are considered disparaging to a group of individuals. But the important distinction is that the patent officials looks to see whether the marks were considered defamatory at the time of registration, not whether they are offensive today. The young Native Americans will have the difficult task of proving that the marks were offensive to a majority of their community back in the 1960s.

Lawyers for the Redskins aren’t too concerned. “I don’t think this case will present any problems,” says Bob Raskopf, who has been representing the Redskins in this litigation since 1992. He says the relevant time period from trademark registration to filing the Blackhorse suit is too long.  He anticipates the young Native Americans will meet the same limitation obstacles.

The Blackhorse case was suspended until the current case could be resolved. But now that the Supreme Court has declined to review it, the secondary case will move forward. The Trademark Trial and Appeal Board, the panel responsible for hearing trademark cases in the United States Patent and Trademark Office, will lift the suspension and move forward with the case in the near future.

Down the line, if the team ends up losing federal trademark protection, that doesn’t automatically mean it would be forced to scrap its name. It just means that the marks and logos wouldn’t have the same amount of protection under the law. The Redskins would potentially lose a substantial amount of merchandising profits if the logos lost protection and any outside vendor could copy the images for commercial gain.

For now, the Redskinetts can keep cheering, but they shouldn’t grow too close to the squad name because this litigation is far from over.  “We feel very good about the upcoming case,” says Philip Mause, an attorney representing both groups of Native Americans. “The sentiment is turning around more and more in our favor.”

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