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Score One Touchdown in the Endzone for the Washington Redskins

Score one touchdown in the endzone for the www.redskins.com/gen/index.jsp>Washington Redskins. After a 17 year court battle over their trademark, which depicts a drawing of an Indian along with their name Redskins, the U.S. Court of Appeals for the D.C. circuit ruled that the plaintiffs waited way too long to challenge this mark. See: www.ipwatchdog.com/ip-cases/trademark-cases/pro-football-v-harjo-may-15-2009/>Pro-Football, Inc. v. Harjo (D.C. Cir. 2009)

A group of Native Americans had challenged the mark alleging it was disparaging to their ethnic group. Yet, the court held there was too great a delay between when the NFL team began using the mark in 1967 and when the mark was first challenged in this action back in 1992.

Unfortunately for the Redskins, the Court did not address the merits of the claim and whether or not the mark en.wikipedia.org/wiki/Disparagement> disparaged Native Americans under the meaning of the Lanham Act §2, 15 U.S.C.§1052(a). Instead, Judge David Tatel, writing for the Court, based the decision on the team's defense of laches. Judge Tatel stated that the Redskins suffered great economic and trial prejudice because of the long lag time. Oddly, this was the second time this issue had been before the Circuit, which previously ruled against the team and remanded back to the District Court in 2005, See: Pro Football, Inc. v. Harjo, (Harjo II), 415 F.3d 44, 50 (D.C. Cir. 2005)

The trial clock had actually been set in 1984 when Mateo Romero, the youngest of the seven plaintiffs turned 18, the age of majority, and nothing happened between 1984 and 1992. Romero would've been one year old in 1967 when the team first began using the mark, so on remand, the district court deemed the period between 1984 and 1992 the Romero Delay Period. See: Harjo III, 567 F.Supp.2d 46, 53-56 (D.D.C. 2008) During this Romero Delay Period, Edward Bennett Williams, the team's former president, unfortunately died. Williams had reportedly met with Native Americans to get their opinions on the team's mark and he could no longer testify. The court determined that the near eight year delay also made it more difficult to obtain contemporaneous evidence of public attitudes toward the mark.

Romero had also made a claim against the NFL team's cheerleaders, the Redskinettes, which were not borne of the team until 1990. However, Romero shot himself in the foot there too. He noted for the district court that the allegedly disparaging mark for the Redskinettes was so closely tied to the disparaging nature of the team's mark that the court held it would have to look at the team's mark to assess the nature of the claim against the cheerleaders and it was prevented from doing so by the defense of laches.

While this decision does not address the merits of the case, it does put it to rest but that is not enough for Intellectual Property attorneys. In this ridiculously politically correct society of ours why does freedom of speech and expression always take a back seat to the hurt feelings of a chosen few seeking their 15 minutes in the spotlight? The word Indian dates back to the 15th century when Christopher Columbus mistakenly thought he landed on a sub-continent of India and thereby referred to the indigenous people of the new land as Indians. What is disparaging about that?

Perhaps as a New Yorker I should be insulted if someone from the south calls me a Yankee. However, as an intelligent woman I am not; in fact, I am proud to be a Yankee, now if only Derek Jeter would call.

www.LisaFantino.com>Lisa Fantino is an award-winning journalist turned attorney with a general and entertainment practice in Mamaroneck, NY

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This page contains a single entry from the blog posted on May 18, 2009 2:50 PM.

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