As a result, the organization is permitted to continue using the name, but it stands to lose a great deal of money. Without trademark protection, the Washington franchise will find it nearly impossible to file a successful suit against parties who use the name at no cost.
“[Team owner] Daniel Snyder may be the last person in the world to realize this, but it's just a matter of time until he is forced to do the right thing and change the name," Senate Majority Leader Harry Reid told the AP.
The case considered by the Patent Office, Blackhorse, et. al. v. Pro-Football, Inc., is an echo of an earlier effort. Known as Harjo, et. al. v. Pro-Football, Inc., that lawsuit was thrown out in federal appeals court on a technicality—the plaintiffs were said to have unjustifiably delayed the suit. The Supreme Court later denied an appeal.
This time, however, a group of young Native Americans led by Amanda Blackhorse brought the challenge, shielded from those earlier concerns.
As Prof. Christine Haight Farley of American University explained in an original commentary for Constitution Daily, federal trademark law has banned the registration of “scandalous or immoral” marks since 1905. Almost half a century later, the Patent Office added marks that “disparage, bring into contempt or disrepute persons, institutions, beliefs, or national symbols.”
In both Harjo and Blackhorse, the trademark office found that plaintiffs had provided sufficient evidence that the term “Redskin” was disparaging. Evidence included dictionary definitions, expert testimony from linguists, and survey results showing sizable offense felt by Native Americans.
“In these larger issues of racial identity, civility, and community, obviously trademark law plays a very minor role,” wrote Farley. “But as some of these disputes, such as the Washington football team name dispute, demonstrate, on occasion this small role can be an important one.”
Recent Stories on Constitution Daily
Event preview: Marriage equality at the Supreme Court
Scalia’s religion remarks and the First Amendment
Supreme Court decides on straw-purchasing and firearms sales
America’s forgotten war started on this day in 1812