Washington NFL team hopes high court will OK its use of racist name

7/29/2016, 6:36 p.m.
While the Washington professional football team may be hoping for a winning season, it also may be quietly hoping for ...

By Reginald Stuart

While the Washington professional football team may be hoping for a winning season, it also may be quietly hoping for a turn of events this fall in the federal courts where, as on the gridiron, it has suffered a series of setbacks over use of its nickname.

When the U.S. Supreme Court meets the first week of October to begin its next term, atop its agenda is likely issuance of a clue indicating whether the high court will move with any haste in hearing legal arguments that could affect the football team’s claim of federal protection of its trademark.

The trademark is one that has established the team as a professional sports legend and helped it earn tens of millions of dollars over the years. At the same time, critics say the trademarked name should not have federal protection because it violates a federal law, the Lanham Act, that bars protection of trademarks that may “disparage” a person or group of people, among other negative characterizations.

Pro-Football Inc., the legal name under which the Washington team operates, has asked the high court to put the trademark protection issue ahead of other questions before it, as the issue is yielding different interpretations at lower court levels.

At its early October meeting when the court issues the so-called Order List for cases it will hear this year, the Pro-Football request is among some 2,000 petitions from around the country, all seeking the high court’s attention.

A decision by the court to accept Pro-Football’s request could mean it would hear and resolve some key questions about trademark protection before the 2017 training camp begins. Refusal to take the issue out of order could mean the issue will not be resolved anytime soon.

The legal efforts to stop the football team’s use of the racist moniker started in 1992 with Native American activist Susan Harjo. She said in a brief Free Press interview that the arguments of 1992 remain as solid today.

She cited several recent developments to support her arguments. She cited a ruling two years ago by the federal Trademark Trial and Appeal Board that the six trademarks held by Pro-Football, covering the team’s name, logo and mascot, were not protected under federal law. That action, affirmed by the U.S. District Court for Northern Virginia, is among the issues being contested by Pro-Football.

The Justice Department has since filed briefs with the 4th U.S. Circuit Court of Appeals asserting the lower court was correct in upholding the trademark board’s actions, a major boost for Native Americans who oppose use of the trademarked name.

In February, 42 Native American groups filed friend of the court briefs defending the trademark board’s action in denying federal trademark protection to logos, marks and commercialized names they feel are disparaging.

Meanwhile, another trademark protection case involving language that could be perceived as racist and denigrating has made its way through a federal appeals court that handles trademark questions. That court allowed a musical group of Asian-Americans to trademark their group’s name that is considered by some as a racist reference. The court held that the Lanham Act, used at the center of the case, does not bar free speech guaranteed by the First Amendment

Pro-Football hopes a U.S. Supreme Court affirmation of the appeals court’s ruling in the musical group’s case would strengthen its argument that the Washington team simply is exercising its First Amendment rights in using federal trademark protection to use its name.

Late last year, Pro-Football added a highly respected new player to its roster of lawyers as its readies for a hoped U.S. Supreme Court appearance.

It hired Washington attorney Lisa Blatt, a University of Texas law school graduate who previously clerked for Justice Ruth Bader Ginsberg. Ms. Blatt, who heads the appellate and Supreme Court practice section of the prestigious Arnold & Porter law firm, has argued 33 cases before the U.S. Supreme Court and won 32 of them, according to a law firm profile of her.

Ms. Harjo, while acknowledging the negative nature of the musical group’s name, said there is a difference between a company adopting an offensive name for commercial trademark purposes and people of that group identifying themselves by such a name.

Under the law, the use of the name “is wrong,” Ms. Harjo said, citing the rulings that the trademark never should have been issued. “Morally, it is wrong,”

She said the word’s historical roots show it was used to demean the human value of a Native American. Use of the nickname would have been barred years ago had it been used to refer to other racial or ethnic groups in America, she said.

Tony Wyllie, senior vice president for communications for the Washington professional football team, noted the legal matters before the court, saying there is less public concern and angst over the team’s name and trademark than critics claim.

“We have lots of support all over the nation,” Mr. Wyllie said. “Richmond has been very loyal and supportive,” he said, adding a recent Washington Post poll found that 90 percent of the people surveyed had no problem with the team name.

Similar sentiments were offered by Tammy Hawley, press secretary to Richmond Mayor Dwight C. Jones.

The team’s trademark is “not a top issue for us” in the five months Mayor Jones has left in office, Ms. Hawley said. She also said “many local sports writers have said it’s time to move on,” inferring she shared the opinion.

The Richmond Free Press has long been a critic of the team nickname, announcing in October 2013 in a strongly worded editorial that it was “expunging the nickname of the team from its news and editorial columns.”

“The nickname is insulting to Native Americans, racist and divisive. Plus it promotes the spreading ugly Tea Party mentality that is growing in Virginia and the Nation’s Capital,” said the Free Press editorial.

“Our use of the depraved nickname would only serve to cause people to become more acclimated to the outrageous,” the paper said in the editorial reasserting its feeling the word is offensive and the team should not use it. “It would give a cause for the regeneration of the despicable N-word and other derogatory names given to other racial groups.”

The newspaper has not changed its position on the matter.