The NFL team filed a widely expected notice of appeal of U.S. District Judge Gerald Bruce Lee's July 8 ruling that “Redskins” ran afoul of the Lanham Act’s Section 2a, which prohibits “disparaging” registrations. He also rejected the team's claim that the provision violated the First Amendment.
The team's trademark fight is playing out amid — and perhaps fueling — a broader debate over whether the team should change its name, trademarks or no trademarks. Many critics, including the Native Americans who brought the case, say the team name is a racial epithet.
The Redskins had already vowed to appeal the Virginia federal ruling to the Fourth Circuit and many expect that the team and owner Daniel Snyder will take the case all the way to the Supreme Court if the appeals court also rules against them.
The team's arguments on appeal are not yet available.
Amanda Blackhorse and several other Native Americans filed the case against the Redskins at the Trademark Trial and Appeal Board in 2006, aiming to succeed where a previous group had failed.
Activist Suzan Harjo filed a similar Section 2a cancellation proceeding in 1992, but the case eventually failed in 2009 on the grounds that Harjo had waited too long to sue. Blackhorse and the other challengers filed their case when they were younger, meaning they are not as susceptible to the argument.
In June 2014, TTAB sided with Blackhorse, finding that, as required by the Lanham Act, a "substantial composite" of Native Americans found the Redskins marks to be “disparaging” when they were first registered.
Judge Lee affirmed the trademark board's ruling last month, finding Blackhorse had not only met the technical legal requirements to prove disparagement, but also that Section 2a itself was constitutional.
“Nothing about Section 2a impedes the ability of members of society to discuss a trademark that was not registered by the PTO,” Judge Lee wrote at the time. “Simply put, the court holds that cancelling the registrations of the Redskins marks ... does not implicate the First Amendment as the cancellations do not burden, restrict or prohibit [the team's] ability to use the marks.”
A parallel case over the same free speech issue is currently pending at the Federal Circuit.
Pro-Football Inc., which owns and operates the Washington team, is represented by Robert Raskopf, Todd Anten and Claudia T. Bogdanos of Quinn Emanuel Urquhart & Sullivan LLP and by Craig C. Reilly.
Amanda Blackhorse and other petitioner-defendants are represented by Jesse Witten, Jeffrey Joseph Lopez, Jennifer Tracey Criss and Tore Thomas DeBella II of Drinker Biddle & Reath LLP.
The case is Pro-Football Inc. v. Amanda Blackhorse et al., case number 1:14-cv-01043, in the U.S. District Court for the Eastern District of Virginia.
--Editing by Kelly Duncan.
