Impact of Washington Redskins trademark ruling on Florida State Seminoles

Stephen Dunn

Wednesday, it was announced that the six trademark registrations of the Washington Redskins had been cancelled.

WASHINGTON, D.C. - The Trademark Trial and Appeal Board ruled in favor of the petitioners in Blackhorse v. Pro -Football, Inc, a landmark case that Drinker Biddle & Reath filed in 2006 on behalf of five Native Americans seeking to cancel trademark registrations of the “Washington Redskins” because the use of the term “redskins” disparages Native Americans. The case is the culmination and vindication of a multi-decade effort by Native Americans and others who object to the team’s name as derogatory and offensive.

“We are extraordinarily gratified to have prevailed in this case,” said Alfred W. Putnam, Jr., Chairman of Drinker Biddle & Reath LLP. “The dedication and professionalism of our attorneys and the determination of our clients have resulted in a milestone victory that will serve as an historic precedent,” Putnam said.

The five petitioners, Amanda Blackhorse, Phillip Glover, Marcus Briggs-Cloud, Jillian Pappan and Courtney Tsotigh, came together eight years ago to seek the cancellation of six different trademarks associated with the Washington NFL team. The federal trademark law does not permit registration of trademarks that “may disparage” individuals or groups or “bring them into contempt or disrepute.”

“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 Jesse Witten, the lead Drinker Biddle partner litigating this case. “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.” Witten added. “This victory was a long time coming and reflects the hard work of many attorneys at our firm.”

Drinker Biddle & Reath LLP is a national law firm with 650 lawyers in 11 offices providing client service in areas such as intellectual property, commercial litigation, communications litigation, corporate and securities, corporate restructuring, employee benefits and executive compensation, environment and energy, government and regulatory affairs, health care, insurance coverage, investment management, labor and employment, life insurance and annuities, products liability and mass tort litigation, private client service and real estate

This might not mean what you think it means. Basically, you cannot register trademarks that disparage a group of people.

It does not mean that the Redskins are banned from using the name. And the ruling is not final, as Washington is sure to appeal.

But what it does do, if Washington loses the appeal, is weaken Washington's ability to prevent others from using the marks on merchandise, promotions, etc.

So the question on the minds of Florida State fans? Could that happen to the "Seminoles" marks? It's extremely unlikely.

The U.S. PTO addressed a two-part question for the disparagement claim. First,

What is the meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the goods and services identified in the registrations?

To the surprise of nobody, Redskins means Native Americans.

The court turned to the second question of

Is the meaning of the marks one that may disparage Native Americans?

The court found the following.

Was the meaning one that may have disparaged” a substantial composite, which need not be a majority, of Native Americans, at the times of the registrations. The crux of this case is whether or not this record supports petitioners’ contention that the answer to that question is yes

Respondent has introduced evidence that some in the Native American community do not find the term “Redskin” disparaging when it is used in connection with professional football. While this may reveal differing opinions within the community, it does not negate the opinions of those who find it disparaging. The ultimate decision is based on whether the evidence shows that a substantial composite of the Native American population found the term “Redskins” to be disparaging when the respective registrations issued. Heeb Media LLC, 89 USPQ2d at 1077. Therefore, once a substantial composite has been found, the mere existence of differing opinions cannot change the conclusion. In view of the above, petitioners have shown by a preponderance of the evidence that a substantial composite of Native Americans found the term REDSKINS to be disparaging in connection with respondent’s services during the relevant time frame of 1967-1990. Accordingly, the six registrations must be cancelled as required under Sections 2(a) and 14(3) of the Trademark Act.

Here is where I think this gets interesting for Florida State and "Seminoles," and why I ultimately don't think this would apply.

"Redskins" is a generic slur. There was no tribe named the Redskins. And it applies to all Native Americans. Look how the court considers the overwhelming evidence (appendices to this beast of a ruling are 77 pages) that quite a few Native Americans find the name offensive and disparaging, though not necessarily a majority.

The record establishes that, at a minimum, approximately thirty percent of Native Americans found the term REDSKINS used in connection with respondent’s services to be disparaging at all times including 1967, 1972, 1974, 1978 and 1990. Section 2(a) prohibits registration of matter that disparages a substantial composite, which need not be a majority, of the referenced group. Thirty percent is without doubt a substantial composite. To determine otherwise means it is acceptable to subject to disparagement 1 out of every 3 individuals, or as in this case approximately 626,095 out of 1,878,285 in 1990.215 There is nothing in the Trademark Act, which expressly prohibits registration of disparaging terms, or in its legislative history, to permit that level of disparagement of a group and, therefore, we find this showing of thirty percent to be more than substantial.

Respondent has introduced evidence that some in the Native American community do not find the term “Redskin” disparaging when it is used in connection with professional football. While this may reveal differing opinions within the community, it does not negate the opinions of those who find it disparaging. The ultimate decision is based on whether the evidence shows that a substantial composite of the Native American population found the term “Redskins” to be disparaging when the respective registrations issued. Heeb Media LLC, 89 USPQ2d at 1077. Therefore, once a substantial composite has been found, the mere existence of differing opinions cannot change the conclusion.

In view of the above, petitioners have shown by a preponderance of the evidence that a substantial composite of Native Americans found the term REDSKINS to be disparaging in connection with respondent’s services during the relevant time frame of 1967-1990. Accordingly, the six registrations must be cancelled as required under Sections 2(a) and 14(3) of the Trademark Act. 216

"Seminoles," on the other hand, does refer to a specific tribe. And within that, the Seminole Tribe of Florida, the Tribe originating in the state where FSU exists, supports the name in a public way. Even if other Seminole tribes, like the Tribe of Oklahoma were to object, it seems like a far smaller connection and objection, though the language that it "need not be a majority" of the referenced group is perhaps a bit unsettling.

Additionally, and importantly, "Seminoles" is not an offensive slang term like "Redskins." It is closer to something like the University of Pennsylvania's use of "Quakers," representing a specific group of people who at one time lived in a certain area with specific shared charecteristics.

Some may object to its use by Florida State, but they'd be hard-pressed to put it on a level anywhere close to "Redskins," which is closer to the N-word in basis and use.

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