Appeals court keeps 'Commanders' lawsuit alive
Monday, July 18, 2005
A lawsuit seeking to cancel the trademarks of the Washington Commanders football team was revived by a federal appeals court on Friday.
In a unanimous per curiam decision, the D.C. Circuit Court of Appeals said the case was prematurely dismissed. The plaintiffs, led by activist Suzan Shown Harjo, should be given another chance to prove the trademarks are disparaging to Native Americans, a three-judge panel concluded.
A lower court judge had found that the plaintiffs waited too long make their claim. In October 2003, U.S. District Judge Colleen Kollar-Kotelly noted that the trademarks were first registered in 1967 but that the lawsuit wasn't filed until 1992.
The D.C. Circuit, however, noted that one of the plaintiffs, Mateo Romero, an artist from Cochiti Pueblo in New Mexico, was only one year old at the time of the first registration. Therefore, Kollar-Kotelly "mistakenly started the clock" in her ruling, the appeals court said.
In reviving the suit, the appeals court said Romero's claim must be examined more fully. The court directed Kollar-Kotelly to consider whether Romero's delay in filing suit causes "prejudice" to Pro-Football Inc., the company that owns the Commanders team.
At the same time, the judges raised some potentially serious questions about Pro-Football's defense. The team has said canceling the marks will cause economic harm. The team also claims the name "Commanders" is not offensive to Native Americans.
"Why should equity give more favorable treatment to parties that harm expanding numbers of people (in which case, under Pro Football's theory, laches runs from the date of harm) than it gives to parties that harm only a few people (in which case laches runs from whenever those people are free of legal disabilities)?" the court asked. "Why should equity elevate Pro-Football’s perpetual security in the unlawful registration of a trademark over the interest of a Native American who challenged this registration without lack of diligence?"
"Why should laches bar all Native Americans from challenging Pro-Football’s 'Commanders' trademark registrations because some Native Americans may have slept on their rights?" the unsigned decision stated.
The decision is latest in the long-running battle between the activists and the owners of the team. In 1992, Harjo and six other prominent members of the Indian community, including legal scholar Vine Deloria Jr. and educator Norbert Hill, asked the U.S. Patent and Trademark Office to cancel the Commanders family of marks.
In April 1999, the group won a significant victory. In the first case of its kind, the patent office's Trademark Trial and Appeal Board said the marks were "disparaging" and subjected Native Americans to "contempt" and "disrepute."
The decision didn't stop the Commanders from using the names but the team immediately appealed, prompting Kollar-Kotelly's ruling.
Indian organizations have backed Harjo's crusade. The National Congress of American Indians (NCAI), the largest inter-tribal organization, and the National Indian Education Association (NIEA), the largest group of its kind, have called on the Commanders and other teams with Indian imagery to drop their names.
Across the country, colleges, universities and high schools have stopped using Indians as mascots and names. The National Collegiate Athletic Association is considering adopting a policy on the use of Indian symbols.
