Jun 192014
 

The US Patent and Trademark Office has once again cancelled the federal registration of the Washington NFL team’s name and related trademarks. In Blackhorse v. Pro Football, the agency found for the second time that the term “Redskin” is disparaging to Native Americans and therefore is barred from federal registration.

“This is “trademark bullying” in every respect. This phrase is typically used to describe attempts by trademark owners to bully others out of the marketplace by enforcing trademark rights beyond the scope of those they actually own. But the continued use of this disparaging term by Pro Football in this case after our U.S. Patent and Trademark Office has ordered the marks cancelled twice is indistinguishable from the domination, dehumanization and emotional scarring associated with the kind of bullying we are sadly all too familiar with. Our federal government should not sanction such hatred. The team and league should listen this time.” stated AUWCL Intellectual Property Clinic Director Professor Victoria Phillips in reaction to the decision.

IP Clinic and other PIJIP faculty members have collaborated with Dr. Suzan Harjo and other Native American advocates to help rid the American sports world of its most racist slur. Professors Christine Farley and Phillips authored an amicus brief on behalf of law scholars whose research and teaching focus is intellectual property law, federal Indian law and constitutional law supporting the petition for review by the United States Supreme Court in the initial case on this issue Harjo et al v. Pro Football, Inc. (2009). Pro Football had asserted as a defense that the petitioners should have been barred from seeking cancellation because the registrations have existed for so long, been the subject of significant investment and the Native Americans had unreasonably delayed in bringing the action. The amicus brief filed by Farley and Phillips argued that the doctrine of laches should not apply to trademark cancellation claims based on disparagement, because of the strong public interest in being free from the harms which included damaging stereotyping and stigmatization. These harms are deserving of protection no matter what private harm may be caused by delay to a trademark registrant. As the USPTO correctly found in the 1999 Harjo case, the injury to Native Americans by Pro-Football’s use of this slur as a trademark is self-evident. In addition, the social costs to the public at large are huge and include reinforcing hateful and erroneous stereotypes and misinformation about our fellow citizens. The brief concluded that the psychological harms of such racialized representations are at once to the referenced group of Native Americans but also to society as a whole.

Clinic faculty also worked with Dr. Harjo on presenting the IP Program’s Cherry Blossom Symposium on Federal Intellectual Policy in March, 2014. The theme of this symposium was Traditional Knowledge: IP and Federal Policy and included a panel on initiatives to regulate commercial appropriation of tribal names, symbols, and modes of cultural production featuring Dr. Harjo and other cultural and tribal experts.

In recent years student teams from the Glushko-Samuelson Intellectual Property Law Clinic have also been involved in the case and related matters in a variety of ways. The clinic has worked with Harjo on a variety of projects related to mascotting and tribal cultural policy. The students assisted Suzan Harjo in preparing research for a 2013 symposium at the National Museum of the American Indian exploring the negative impact of Native American stereotyping in the sports industry and beyond. The clinic students drafted case studies about how this issue played out in earlier efforts to remove Native American imagery from college athletics and discussed how this movement might inform the present-day efforts to do the same in professional sports.

Another point of contention in the ongoing discussion about the trademark has also been reference to surveys and public opinion polls about the issue, including the oft-cited result of a 2004 poll conducted by the Annenberg Public Policy Center of the University of Pennsylvania. The Annenberg Study has been cited by team owner Dan Snyder in support of Pro-Football’s position that the team name is not disparaging to Native Americans. In response to the continued citation of that survey, IP Clinic students this spring developed and circulated a list of reasons to question the Annenberg Study’s results and making the case for why that survey should no longer be cited in defense of the team name. This posting was quoted in a recent Washington Post piece on the controversy calling for fresh polling data on this question. The clinic is also working on compiling a guide to IP law and other resources for protecting and preserving cultural property for Native communities.

IP Clinic faculty and students look forward to a continuing role in this important national conversation as the case continues to wind its way through the courts.

“This issue is at the sweetspot of intellectual property and social justice. As a clinical teacher, this matter presents an ideal opportunity to both engage students in a range of essential lawyering skills and give them a critical understanding of the values and value conflicts that shape the development of intellectual property law and policy” noted Prof. Phillips.

AUWCL Professors Christine Haight Farley and Victoria Phillips have been in the news commenting on this high-profile issue. Their media appearances include:

Professor Christine Haight Farley

Professor Victoria Phillips