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Legal Commentary

: Prawfs

What's in a name?

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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This year I began my Federal Indian law class with a discussion of modern day perceptions regarding Indian people and I used the example of Indian based sports team names and logos. Is the name Redskins offensive? Is the logo for the Cleveland Indians racist? if they are, then how come they are still around? A petition for cert has just been filed with the Supreme Court pertaining to this issue. Susan Harjo v. ProFootball Inc. involves a petition under the Trademark Act to cancel the Washington Redskins' trademark. Section 2a of the Trademark Act states that a trademark registration may be refused if the trademark "Consists of matter...which may disparage...persons living or dead...or bring them into disrepute." In Harjo, the petitioner argues that the word Redskins "was and is a pejorative, derogatory, denigrating, offensive scandalous, contemptuous, disreputable, disparaging and racist designation for a Native American person."

This case was originally filed in 1992 and has involved both victories and set backs for the plaintiffs. Although the Trademark Trial and Appeals Board agreed with the plaintiffs and canceled the trademark, this decision was reversed by the district court which found the claim barred by latches. On appeal, the Court of Appeals remanded the case back to the district court finding that they had applied the wrong standard in evaluating latches. On remand the district court again ruled for the team and on appeal the decision was affirmed leading to the petition that has just been filed with the Supreme Court.

Regardless of whether the Supreme Court grants cert, ProFootball will most likely get to keep their trademark, but why are they fighting so hard to keep a trademark that offends many American Indians and which has actually been adjudicated racist? The obvious answer is because it is profitable. The company has clearly concluded that the trademark's is worth considerably more than than the millions they must have spent on this litigation and undoubtedly they are right. The general public seems unconcerned about the potential offense caused by such trademarks and extremely unwilling to give them up. In fact, fans of teams like the Redskins, the Indians, and the Braves seem offended even by the suggestion. Consequently, rather than pressuring teams to change, much of the pressure to change seems to be directed at the Indian tribes.

Both the Florida Seminoles and the Spirit Lake Sioux tribe initially objected to the use of their tribe's name in connection with a University mascot but both have been convinced to drop their objections. How the tribes were convinced however remains open to debate. It is alleged that the Florida Seminoles received more than a million dollars to drop their objections to the Florida State mascot and something similar may recently have occurred with regard to the University of North Dakota's Fighting Sioux mascot. The Spirit Lake Sioux tribal council just voted to approve the use of the name Fighting Sioux by the University of North Dakota but there have been a number of allegations that the pro-nickname campaign was being funded by the same donor who conditioned his 100 million dollar donation to the University on the school's promise to keep the mascot. Regardless of whether money was involved, there is something quite audacious about the fact that active efforts are being made to convince offended people not to be offended by something that organizations such as the NCAA and the Trademark office have clearly agreed is offensive.

Full post as published by Prawfs on September 22, 2009 (boomark / email).