Blackhorse Continues Fight Despite Likely Redskins Victory

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By Ayanna Alexander

American Indians struggling to get the Washington Redskins football team to change its name may lose the battle in U.S. courts, but that doesn’t mean the fight is over.

Amanda Blackhorse, the American Indian activist who was the lead plaintiff in the original lawsuit demanding that that the Redskins’ trademark registrations be canceled on the grounds that the term is a disparaging ethnic slur, told Bloomberg BNA that pressure on the football team will not subside, even though the legal fight may be over.

“I think that because this is the end of an 11-year litigation on our end, we have to figure out some other avenue,” said Blackhorse, a Navajo woman who has led protests denouncing the Redskins’ name and those of other professional sports teams with American Indian mascots.

“Whether it’s going after the sponsors and continuing to encourage the public to go after this, putting pressure on NFL, because they have the power to change the name—what people can count on is that pressure won’t stop from Native people,” Blackhorse said.

The Washington Redskins asked a federal appeals court June 21 to overturn a lower court’s decision canceling its trademark registrations for being disparaging following the U.S. Supreme Court’s ruling this week that the ban on disparaging trademarks in U.S. law is unconstitutional ( Pro-Football, Inc. v. Amanda Blackhorse , 4th Cir. App., No. 15-01874, Supplemental brief filed 6/21/17 ).

Rock Band’s Win Backs Redskins

The Supreme Court ruled in Matal v. Tam that the ban on trademarks disparaging to racial or ethnic groups was an unconstitutional violation of free speech. That case involved an Asian America rock band called the Slants—a slur for Asians— who wanted to register its name.

Blackhorse pointed out that both the Trademark Trial and Appeal Board, and a federal district court, had agreed to cancel the Redskins’ trademarks, agreeing that “Redskins” is a disparaging term for American Indians. But the Supreme Court’s ruling means that disparaging terms can no longer be banned under the Lanham Act, the main U.S. trademark law.

“At this point, I don’t know if there’s much recourse for us. The Lanham Act that was used in the Tam case was sort of the foundation of our argument for our case,” said Blackhorse.

The next best chance that Blackhorse and her supporters have to keep the Redskins’ case alive in the courts is to make a case for oral argument at the U.S. Court of Appeals for the 4th Circuit, where the Redskins appeal had been on hold pending the Supreme Court’s decision in the Slants case.

The appeals court has asked the parties to respond on the need for oral argument by July 3.

“That oral argument is unnecessary because Tam squarely controls the outcome of this case,” the Washington Redskins legal team said June 22 in a response to the 4th Circuit’s request.

Chance to Speak

Many trademark lawyers agree that the 4th Circuit most likely will grant the team’s request, regardless of what happens now. However, Eric Ball, partner at Fenwick & West, LLP sees an oral argument as an opportunity for Blackhorse to appeal to the public.

“Ms. Blackhorse’s legal arguments are a long shot at this stage. But oral argument is another chance to sway public opinion,” Ball said. “If the 4th Circuit live streamed the oral argument here, then Ms. Blackhorse could further explain the harm that the Redskins mark causes her.”

As for Blackhorse, “People understand that name—the R word—is offensive, and they’re done having this conversation,” she said. “We definitely won in that sense.”

To contact the reporter on this story: Ayanna Alexander in Washington at aalexander@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

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