Opponents of racist mascots protest at a NFL game between the Washington and Dallas teams in January 2016. Photo by Amanda Blackhorse / Twitter

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Washington NFL team requests delay in racist trademark dispute

Tuesday, October 4, 2016

After making an unusual and urgent plea to get its racist trademark case heard by the U.S. Supreme Court, the Washington NFL team is now seeking to delay the proceedings.

The team asked the Supreme Court to hear the case even before a ruling was issued at the appellate level. But the justices rejected the petition in Pro-Football Inc. v. Blackhorse without comment in an order on Monday.

A day later, an attorney for the team has asked the 4th Circuit Court of Appeals to postpone its upcoming hearing in the case. The team wants to wait for the Supreme Court's decision in Lee v. Tam, a closely-related trademark dispute, before going forward.

"It would be inefficient and wasteful for this court and the parties to have oral argument in this case when the Supreme Court’s decision in Tam may dispose of this case in its entirety, and at a minimum will inform this court’s resolution of the First Amendment question," attorney Lisa S. Blatt wrote in a letter to the 4th Circuit on Tuesday.

The request comes after the 4th Circuit already scheduled a December 9 hearing in the case. Blatt in fact asked for 20 minutes of argument time before asking for the delay.

Just as I suspected, we're not headed to the SCOTUS just yet. https://t.co/8URcj9WdtE
— Amanda Blackhorse (@blackhorse_a) October 3, 2016

Amanda Blackhorse reacts on Twitter after the U.S. Supreme Court turned the Washington NFL team away.

The dispute arose out of a challenge filed by six young Native activists, led by Amanda Blackhorse, a member of the Navajo Nation. They convinced the U.S. Patent and Trademark Office to cancel the team's trademarks because they are disparaging to Native people.

The team had the option of going straight to the 4th Circuit to fight the June 2014 ruling in Blackhorse v. Pro Football, Inc but instead chose to file a lawsuit in federal court in Virginia. It took another year but a judge sided with the youth in a July 2015 decision.

"The record contains several dictionaries defining 'redskins' as a term referring to North American Indians and characterizing 'redskins' as offensive or contemptuous," Judge Gerald Bruce Lee wrote in a 70-page ruling.

The team's strategy has effectively delayed resolution of the case for more than two years even though it told the Supreme Court that further delays are damaging to its brand. Forbes has estimated the team's value at $2.95 billion.

"The government cannot retroactively cancel decades-old registrations for exceptionally valuable marks without respecting procedural due process," the team's petition to the Supreme Court stated.

The team's case is being closely watched across Indian Country. The Navajo Nation, the National Congress of American Indians, the National Indian Education Association, the United South and Eastern Tribes and dozens of Indian organizations and Native student groups have filed or joined briefs in support of the Native youth.

Lee v. Tam, the other trademark case, is also being watched closely. It arose when the U.S. Patent and Trademark Office refused to register marks for a musical group known as The Slants because they would be disparaging to Asian people.

The Federal Circuit Court of Appeals sided with the group and invalidated a portion of the Lanham Act that prohibits the registration of symbols that "disparage" people or bring them into "contempt" or "disrepute." The same law is at issue in the NFL team's case.

Oral arguments have not been scheduled in the Lee v. Tam.

Federal Circuit Court of Appeals Decision:
In Re Simon Shiao Tam (December 22, 2015)