Here.
WaPo Article on Ongoing Legal Dispute over Washington Redskins Name and Logo
Here.
Harjo v. Pro-Football Inc.
Indian Country Implications for NFL Supreme Court Case?
A guest post from MSU 2L Adrea Korthase:
Following the Supreme Court denial of cert in Harjo v. Pro Football, Inc., a new group of plaintiffs has emerged to challenge the laches defense. However, maybe there is the potential for a new defendant as well.
On Wednesday, January 13th, the Supreme Court will hear American Needle v. National Football League. American Needle brought a claim against the NFL for violating antitrust statutes when the football league signed an exclusive license agreement with Reebok. The district court granted summary judgment to the NFL and the Seventh Circuit affirmed the district court’s decision, agreeing that the NFL could act as a single entity. The Supreme Court granted cert.
There is wide ranging speculation as to what will happen if the NFL prevails and the Court defines the league as a single entity. Those who are concerned cite everything from higher ticket prices to union lockouts as possible outcomes. However, if the NFL is considered a single entity, it may help the mascot fight.
If the Court determines that the NFL is a single entity and has the power to license and market their intellectual property, it is possible that the Redskin’s trademark would be part of that property. A determination of a change in hands, a change in control, could weaken a laches defense because it would have been impossible to bring an action against a single entity that did not exist until now.
In addition, because a laches defense, unlike statute of limitations, is a decision of the court, the change in the NFL’s distinction may be influential. It is possible that a court will find that the NFL has a greater responsibility, as a single entity, to rid the league of racist and disparaging trademarks.
Sonia Katyal on the Redskins Case
From Findlaw:
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The Fight Over the Redskins Trademark and Other Racialized Symbols |
| By SONIA K. KATYAL |
|
| Monday, December 7, 2009 |
A few weeks ago, the Supreme Court declined to hear a case involving the trademark for the Washington Redskins. That decision left in place a lower court ruling stating that the plaintiffs had waited too long to bring a case for trademark cancellation – thus triggering the doctrine of laches, under which suits brought too late are barred. Around the same time, a federal judge in North Dakota prohibited the State Board of Education from immediately retiring the Fighting Sioux moniker of the University of North Dakota.
But neither controversy is truly over, and the underlying issue of racialized representations is likely to be discussed and litigated for years to come. With respect to the Washington Redskins, a different set of plaintiffs – and an entirely new case, filed in August 2006 – is waiting in the wings to challenge the trademark on the grounds of its disparaging content. In the UND case, the judge imposed a temporary restraining order on the ground that the state board could not unilaterally alter the deadline without ensuring the tribes’ participation. A new hearing has been set.
Supreme Court Denies Cert in Harjo and Elliott
The order list is here, with the Harjo and Elliott cases listed on page 3.
Neither decision is a big surprise, as the Court grants cert in only a small percentage of cert petitions. The trademark suit against the Redskins will continue through different plaintiffs, but the laches argument that served to defeat the Harjo plaintiffs applies with virtually equal force to the new plaintiffs. (AP article here).
The Elliott case is a welcome relief, given that the Court seems to grant cert petitions filed by non-Indians against tribal jurisdiction almost randomly. Here, one suspects the fact that the Ninth Circuit merely was remanding to tribal court for a decision on the merits may have some importance, but the Court has previously granted cert in cases prior to a tribal court decision on the merits (see Strate). The takeaway from the Elliott cert petition denial is simply that one must continue to assume the Court continues to look at tribal jurisdiction cases carefully, but makes its certiorari decisions based on some utterly random calculus.
We surely would love to know if Justice Sotomayor weighed in on these cases in any way, and if so, how.
SCOTUSBlog Lists Harjo as a Petition to Watch
From SCOTUSblog:
Docket: 09-326
Title: Harjo v. Pro-Football, Inc.
Issue: Whether the doctrine of laches is applicable to a cancellation petition filed pursuant to Section 1064(3) of the Lanham Act.
Law Professor Amicus Brief Supporting Harjo Cert Petition
Here — Law Professor Amicus Brief
The cert petition is here, and the rest of the amicus briefs and materials are here.
Harjo v. Pro-Football, Inc. Cert Petition
Here it is — Harjo Petition for Writ of Certiorari
The question presented:
The United States District Court for the
District of Columbia reversed the Trademark Trial
and Appeal Board’s order scheduling cancellation of
the disputed marks and granted summary judgment
to Pro-Football, Inc., finding that the doctrine of
laches precluded consideration of Petitioners’
cancellation petition brought pursuant to Section
14(3) of the Lanham Act, 15 U.S.C. § 1064(3). On
appeal, a panel of the District of Columbia Circuit
agreed and, after a remand, ultimately affirmed the
District Court’s decision in full. The District of
Columbia Circuit’s decision and the Federal Circuit’s
decision in Bridgestone/Firestone Research, Inc. v.
Auto. Club De L’Ouest De La France, 245 F.3d 1359,
1360-61 (Fed. Cir. 2001), are in conflict with the
holding of the Court of Appeals for the Third Circuit
in Marshak v. Treadwell, 240 F.3d 184 (3d Cir. 2001)
(Alito, J.), that petitions made pursuant to Section
14(3) may be filed “at any time,” rendering defenses
such as laches and statutes of limitation
inapplicable.
A single question is presented for review:
1. Whether the doctrine of laches is applicable
to a cancellation petition filed pursuant to Section
1064(3) of the Lanham Act despite the plain
meaning of the statutory language stating that such
a petition may be filed “at any time.”
The United States District Court for the District of Columbia reversed the Trademark Trial and Appeal Board’s order scheduling cancellation of the disputed marks and granted summary judgment to Pro-Football, Inc., finding that the doctrine of laches precluded consideration of Petitioners’ cancellation petition brought pursuant to Section 14(3) of the Lanham Act, 15 U.S.C. § 1064(3). On appeal, a panel of the District of Columbia Circuit agreed and, after a remand, ultimately affirmed the District Court’s decision in full. The District of Columbia Circuit’s decision and the Federal Circuit’s decision in Bridgestone/Firestone Research, Inc. v. Auto. Club De L’Ouest De La France, 245 F.3d 1359, 1360-61 (Fed. Cir. 2001), are in conflict with the holding of the Court of Appeals for the Third Circuit in Marshak v. Treadwell, 240 F.3d 184 (3d Cir. 2001) (Alito, J.), that petitions made pursuant to Section 14(3) may be filed “at any time,” rendering defenses such as laches and statutes of limitation inapplicable.
A single question is presented for review:
1. Whether the doctrine of laches is applicable to a cancellation petition filed pursuant to Section 1064(3) of the Lanham Act despite the plain meaning of the statutory language stating that such a petition may be filed “at any time.”
Harjo v. Redskins Case Has Potential for Supreme Court
Or so says this IP firm’s website, which asserts that there is a trademark-related circuit split:
We do not believe that the issues raised in this case are going away. In the
first place, there is considerable question as to the correctness of the rulings by the District
Court and the D.C. Circuit that laches is applicable to a case such as this. Section 14(3) of
the Lanham Act, 15 U.S.C. § 1064(3), provides that a petition to cancel a registered mark
because, inter alia, it has become generic, was obtained by fraud, or is disparaging, may be
brought “at any time”. With the D.C. Circuit’s Harjo opinion, there is now a split among the
circuits regarding this issue that could give rise to a cert petition. In addition, following the
Circuit Court’s original remand decision, a group of six Native Americans, all of whom only
recently reached the age of majority, filed a new cancellation petition with the TTAB. Although
this proceeding has been stayed pending the outcome of the Harjo lawsuit, it will be activated
in the event that the D.C. Circuit’s decision on laches stands.
We do not believe that the issues raised in this case are going away. In the first place, there is considerable question as to the correctness of the rulings by the District Court and the D.C. Circuit that laches is applicable to a case such as this. Section 14(3) of the Lanham Act, 15 U.S.C. § 1064(3), provides that a petition to cancel a registered mark because, inter alia, it has become generic, was obtained by fraud, or is disparaging, may be brought “at any time”. With the D.C. Circuit’s Harjo opinion, there is now a split among the circuits regarding this issue that could give rise to a cert petition. In addition, following the Circuit Court’s original remand decision, a group of six Native Americans, all of whom only recently reached the age of majority, filed a new cancellation petition with the TTAB. Although this proceeding has been stayed pending the outcome of the Harjo lawsuit, it will be activated in the event that the D.C. Circuit’s decision on laches stands.
It gets more interesting. This is consistent with the Harjo plaintiffs’ lawyer asserts (WaPo article), who suggests that one of the split is a Third Circuit decision authored by then-Judge Alito. Maybe there is a chance for this case to be heard.
Still haven’t seen the cert petition. No indication on the SCOTUS site that anything’s been filed.
Oh, and here’s an update on that notorious Quinn Emmanuel lawyer who got fired after emailing the firm questioning whether its successful representation of the Redskins was a good thing.
BLT: Harjo v. Redskins Case Reaches Supreme Court
From the BLT:
The long-running dispute over the appropriateness of the “Redskins” name for the Washington D.C. NFL football franchise reached the Supreme Court today. Philip Mause, partner at Drinker Biddle & Reath in D.C., representing a group of Native Americans offended by the name, filed a petition for certiorari in the case titled Susan Harjo v. Pro-Football, Inc.
“This is a derogatory term for Indians that sticks out like an anomaly,” said Mause today. “No other group still has to deal with this kind of a term being used” in such a public and widespread way.
The case began with a petition in 1992 to cancel the Redskins trademark under the Lanham Act, which bars trademarks that “disparage … persons living or dead … or bring them into contempt, or disrepute.” The latest ruling by the U.S. Court of Appeals for the D.C. Circuit found that the claims were barred by the doctrine of laches, a defense that acts like a statute of limitations to protect defendants from being sued for long-ago violations of rights.
But Mause asserted that the doctrine does not apply, because the law explicitly allows cancellations of trademarks “at any time.” He cites a 2001 ruling by the U.S. Court of Appeals for the 3rd Circuit in Marshak v. Treadwell, in which now-Justice Samuel Alito Jr. said trademark cancellation claims are not time-barred. “We hope that ruling will be of some help,” said Mause.
In a footnote in the brief, Mause also suggested that “the views of the United States may be helpful to the Court.” Mause said the U.S. trademark office has sided with the Native Americans in the past, but the government has not spoken on whether the Supreme Court should take up the issue. Even without the government filing a brief, it is unlikely the Court will act on the petition before the end of this year, Mause indicated.
Turtle Talk 