: Native Americans : Duets Blog

Supreme Court Declines to Hear Redskins Trademark Case

Posted on November 16, 2009 by Steve Baird

Today, the U.S. Supreme Court declined to hear the requested appeal of Harjo v. Pro-Football, Inc., the nearly two-decade old trademark case seeking cancellation of the U.S. Trademark Registrations owned by the NFL franchise in the Nation's Capitol. In doing so, the highest Court in the land, has permitted the laches ruling to stand. Basically, permitting dismissal of the action given a perceived "unreasonable delay" by the Native American Petitioners in bringing the trademark challenge, despite clear language in the Trademark Act permitting such challenges outside the typical five year statute of limitations, and specifically indicating they can be filed "at any time."

My prior involvement in filing the case back in 1992, the victory we all enjoyed in 1999, and my admittedly rather critical coverage of the dismissal of this historic and ground-breaking case may be found here (9/17/09) and here (May 21, 2009).

Although many ironies may be highlighted from this odd conclusion to the Harjo case, certainly one of the most striking ironies is that it took far longer for this case to wind its way through our legal system than the accused delay by Mateo Romero, the youngest of the original Native American Petitioners, led by Suzan Shown Harjo.

Be that as it may, the torch has been passed to a brand new generation of Native American Petitioners, eager to have the case decided on the merits. The "new" case filed by Amanda Blackhorse and others, more than three years ago, was promptly suspended, pending the final outcome in the Harjo case. Now that the Harjo case has concluded, the Blackhorse case will proceed before the Trademark Trial and Appeal Board (TTAB) of the U.S. Patent and Trademark Office, the same admininstrative body that found in favor of Harjo's disparagement claim in 1999.

Moreover, the TTAB appears to have read the news accounts and just today issued an order, indicating that if the parties to the Blackhorse proceeding don't advise it of the status of the Harjo case within thirty days, it will automatically resume the Blackhorse proceeding and issue a new scheduling order to move the case forward, so stay tuned.

OK, here is my prediction. Some day, I don't know when, justice will prevail, and some talented branding guru will make a tidy sum re-naming and re-branding this offensive NFL franchise name that could have and should have been re-named long ago.

Supreme Court Asked to Review Washington Redskins Trademark Case

Posted on September 17, 2009 by Steve Baird

Back in May, I wrote a piece entitled "Re-Branding Madness in Washington" Overlooks Obvious: The Washington Redskins," discussing the trademark cancellation action that I filed on behalf of seven prominent Native American leaders back in September 1992 (Harjo et al v. Pro-Football, Inc.), and calling for the football team to "hire a branding guru to engage in some serious and successful re-branding."

Well, the 2009 football season is now upon us, and it appears my re-branding call has fallen on deaf ears, at least for now.

Yesterday the Washington Post "reported" the case may be heard by the U.S. Supreme Court.

What I found most interesting about the brief 197 word story in the Washington Post is that the "reporter" used the word "activist" three times and "group" twice, to describe the distinguished Native American leaders I know, without referring to them as individuals or even as being Native American (without the "activist" pejorative), leading me to wonder what yard-line his seats might be located at in FedEx Field.

For what it's worth, at least the Associated Press, ABC News, NBC Sports, ESPN, Yahoo News, WTOP.com, WUSA9.com, New York Times, New York Post, Miami Herald, San Francisco Chronicle, Seattle Times, Sports Illustrated, The Washington Times, and CBS News, have all managed to report the story without employing the highly-charged and politically-loaded term "activist," instead neutrally referring to the petitioners as "Native Americans" and "American Indians," who are offended by the team name.

Chief Wahoo ≠ Louis Sockalexis

Posted on June 3, 2009 by Steve Baird

Last week I blogged about how the Cleveland Indians could save some face by re-branding Chief Wahoo:

Turns out there are some who believe that Chief Wahoo is a "tribute" to or the logo actually pays "homage" to Louis Sockalexis, who Baseball Almanac has reported to be professional baseball's first American Indian player. He apparently played for the Cleveland "Spiders" from 1897-99.

Last night the Cleveland Indians came to town to play the struggling Minnesota Twins, and on my way home leaving downtown Minneapolis this evening I noticed a number of baseball fans heading toward the Metrodome adorned with Chief Wahoo logo-wear.

Funny thing, no one was wearing or carrying anything even remotely resembling Louis Sockalexis:

OK, enough said on the "tribute" and "homage" rationales for keeping Wahoo.

Tags: Advertising, Articles, Branding, Chief Wahoo, Cleveland Indians, Cleveland Spiders, Indians, Louis Sockalexis, Marketing, Native American Mascots, Native Americans, Non-Verbal Logos, Re-branding, Rebranding, Trademarks

"Chief Wahoo" Re-Branding Underway? A Painful Lesson on Saving Face

Posted on May 28, 2009 by Steve Baird

Mark Image

A picture can say a thousand words; so does a face. The same is probably true of non-verbal logos, including the several federally-registered "Chief Wahoo" logos, shown above (all apparently still in use by the "Cleveland Indians" professional baseball team, according to their latest trademark filings).

So, what do they say to you?

My take? I can think of quite a few words to describe them, but none includes the word "honor," as is often the claim made by those in favor of keeping Native American mascots.

From my perspective, "Chief Wahoo" is the non-verbal equivalent of the Redskins racial slur that I blogged about last week.

Last month I blogged about Non-Verbal Logos That Can Stand Alone, and while "Wahoo" certainly can "stand alone" as a non-verbal logo, unlike the famous Nike Swoosh and McDonalds Golden Arches, "Wahoo" should simply "stand alone" in the corner of a dark closet with the door shut and locked.

More than a few have weighed in on the baseball team's controversial continued use of "Chief Wahoo": Here ("Mascot League Baseball"), here, here, here, here, here, here, and here.

It apparently took a Yankees fan to point out the "irony" of the "Cleveland Indians" signing a sixteen-year deal in 2008 to play ball in "Progressive Field" -- the re-named "Jacobs Field" (in favor of the well-known and deep-pocketed Cleveland-based insurance company).

In addition, now that the team has relocated spring training to a new ball park in Goodyear, Arizona, it appears the team is de-emphasizing the Chief Wahoo logo, in favor of the innocuous "I" script and "C" block logos, although the team spokesman maintains that "Chief Wahoo" is not being "phased out." Could the diminished use of "Wahoo" have anything to do with the fact that Arizona has more Native American residents than every other state besides California and Oklahoma? Could it be the team is trying to save a little face with a gradual phase out, or re-brand, if you will?

Finally, the team's MLB website shows a fairly sparse use of "Chief Wahoo," so why hang on at all?

Bottom line: If the team wants to save just a little bit of face, it ought to stop showing Wahoo's face altogether, period.

"Re-Branding Madness in Washington" Overlooks Obvious: The Washington Redskins

Posted on May 21, 2009 by Steve Baird

Re-branding occurs all the time.

Re-branding occurs in business. Remember when Bell Atlantic became Verizon? Andersen Consulting became Accenture? How about when Philip Morris became Altria?

Re-branding occurs in politics too. Just days ago, Judson Berger discussed a kind of "re-branding madness" consuming Washington, D.C. right now: "Terrorist attack is out. -- 'man caused disaster' is in." Our friends at Catchword Branding had a lot of fun with the political re-branding of Swine Flu.

Re-branding even occurs in the world of professional sports. Remember when the NBA franchise Washington Bullets became the Washington Wizards in 1997 out of concern that the Bullets name of some twenty-three years (1974-1997) had acquired "violent overtones". How about the recent re-branding from the Seattle Supersonics to the Oklahoma City Thunder? Even the NFL has decided to recognize Cincinnati Bengal Chad Johnson's re-branding to Ocho Cinco.

Re-branding changes, according to Wikipedia, are "usually in an attempt to distance [the brand] from certain negative connotations of the previous branding." So, given the widespread meaning and understanding of "redskin" as "offensive slang" and that it is "used as a disparaging term for a Native American," given the pain the term has caused, and given that the team's helmets sport a Native American profile and not a certain variety of spud on them, why won't the Washington Redskins get on the re-branding bandwagon in our nation's capital? After all, even one of the attorneys at the same law firm hired by the team apparently has spoken out, read about the details here.

Instead, millions upon millions of dollars continue to be spent defending trademark registrations that never should have been granted in the first place under Section 2(a) of the Lanham Act, which forbids the federal registration of a trademark that "consists of or comprises matter" that "may disparage" persons or "brings them into contempt or disrepute".

John Welch over at the TTABlog did a thoughtful post earlier this week summarizing the history of the seventeen year old trademark case that I filed on behalf of seven prominent Native American leaders back in September 1992 (Harjo et al v. Pro-Football, Inc.), with the latest unfortunate ruling on appeal, here. Basically, in this latest and final ruling in the Harjo case, the D.C. Circuit Court of Appeals affirmed the D.C. District Court's ruling that even the youngest of the Native American Petitioners, Mateo Romero, had slept on his rights and not pursued the cancellation action soon enough after reaching the age of majority. He was twenty-six when he brought the cancellation action in 1992 and one of the registrations he challenged had only issued two years earlier in 1990.

In 1999, when I left the case, the Harjo Petitioners had prevailed on the merits and successfully argued to the Trademark Trial and Appeal Board (TTAB) that cancellation actions based on the "may disparage" language are rooted in "public policy" so a laches defense should not even be available or apply, here. Five years before ordering that the team's Redskins registrations be cancelled, the TTAB had wisely held in 1994 "there exists a broader interest -- an interest beyond the personal interest being asserted by the present petitioners -- in preventing a party from receiving the benefits of registration when a trial might show that [the team's] marks hold a substantial segment of the population up to public ridicule."

The good news, however, even in the face of the D.C. Circuit Court of Appeal's disappointing ruling on laches, is that there is a brand new generation of Native American Petitioners, led by Amanda Blackhorse, to make sure that a brand new similar case is actually and finally decided on the merits. In fact, doesn't this development demonstrate why the 1994 ruling that struck the team's laches (slept on rights) defense was correct in the first place? The fact that, as long as the offensive team name continues, there always will be new Native American Petitioners reaching the age of majority anxious to object shows that their cause of action is rooted in public policy, not some personal and individual right that might be waived by failing to act quickly enough.

Again, putting the legal issues aside, why doesn't the team do the right thing, as a responsible business, and hire a branding guru to engage in some serious and successful re-branding?

UPDATE: Supreme Court Requested to Review Washington Redskins Trademark Case.