Harjo v. Pro-Football, Inc.

Suzan Harjo and other Native Americans (plaintiffs) filed a petition to cancel the trademark for the term redskins (term), which was owned by Pro-Football, Inc. (club) (defendant) and used in connection with the Washington Redskins football team. Harjo asserted that, pursuant to the Trademark Act (also known as the Lanham Act), the term was not entitled to trademark protection because it disparaged Native Americans. Harjo cited (1) numerous dictionaries that described the term as being offensive; (2) historical documents through the 1950s that used the term in negative portrayals of Native Americans; (3) a 1966 survey indicating that 46.2 percent of the general population and 36.6 percent of Native Americans found the term to be offensive as a reference to Native Americans; (4) the club’s use of the term in the 1940s and 1950s (and to a lesser extent the 1960s) in connection with negative portrayals of Native Americans; (5) negative media portrayals of Native Americans (e.g., as savages) that used the term; and (6) testimony by Native Americans that they were offended by the term, as well as evidence that an organization of Native American tribes opposed the term. The club denied that the term disparaged Native Americans, arguing that it had acquired secondary meaning as a reference to the club. The club also contended that whatever disparaging meaning the term once may have had, the fact that historical documents since approximately the 1950s did not use the term to disparage Native Americans showed that it now was neutral. The club also noted that its use of the term since approximately the 1960s had not been disparaging, argued that it was not responsible for media and other portrayals and usage, and claimed that Native Americans supported the club’s use of the term and regularly used the term in their own communities.