Steve Baird, the lawyer who filed the Harjo case, has a post over at the Duets Blog about the Redskins case. He asks a very good question: “…putting the legal issues aside, why doesn’t the team do the right thing, as a responsible business, and hire a branding guru to engage in some serious and successful re-branding?”

You can read the full post over at the Duets Blog here.

Thanks to my friend, law school classmate, and Steve Baird colleague Sharon Armstrong for directing me to the post.

Duets Blog

Posted at 4:34 AM on May 21, 2009 by Steve Baird

“Re-Branding Madness in Washington” Overlooks Obvious: The Washington Redskins

Re-branding occurs all the time.

Re-branding occurs in business. Remember when Bell Atlantic became Verizon? Andersen Consulting became Accenture? How about when Philip Morris became Altria?  

Re-branding occurs in politics too. Just days ago, Judson Berger discussed a kind of “re-branding madness” consuming Washington, D.C. right now: “Terrorist attack is out. — ‘man caused disaster’ is in.” Our friends at Catchword Branding had a lot of fun with the political re-branding of Swine Flu.

Re-branding even occurs in the world of professional sports. Remember when the NBA franchise Washington Bullets became the Washington Wizards in 1997 out of concern that the Bullets name of some twenty-three years (1974-1997) had acquired “violent overtones”.  How about the recent re-branding from the Seattle Supersonics to theOklahoma City Thunder? Even the NFL has decided to recognize Cincinnati Bengal Chad Johnson’s re-branding to Ocho Cinco.

Re-branding changes, according to Wikipedia, are “usually in an attempt to distance [the brand] from certain negative connotations of the previous branding.” So, given the widespread meaning and understanding of “redskin” as “offensive slang” and that it is “used as a disparaging term for a Native American,” given the pain the term has caused, and given that the team’s helmets sport a Native American profile and not a certain variety of spud on them, why won’t the Washington Redskins get on the re-branding bandwagon in our nation’s capital? After all, even one of the attorneys at the same law firm hired by the team apparently has spoken out, read about the details here.

Instead, millions upon millions of dollars continue to be spent defending trademark registrations that never should have been granted in the first place under Section 2(a) of the Lanham Act, which forbids the federal registration of a trademark that “consists of or comprises matter” that “may disparage” persons or “brings them into contempt or disrepute”.

John Welch over at the TTABlog did a thoughtful post earlier this week summarizing the history of the seventeen year old trademark case that I filed on behalf of seven prominent Native American leaders back in September 1992 (Harjo et al v. Pro-Football, Inc.), with the latest unfortunate ruling on appeal, here. Basically, in this latest and final ruling in the Harjo case, the D.C. Circuit Court of Appeals affirmed the D.C. District Court’s ruling that even the youngest of the Native American Petitioners, Mateo Romero, had slept on his rights and not pursued the cancellation action soon enough after reaching the age of majority. He was twenty-six when he brought the cancellation action in 1992 and one of the registrations he challenged had only issued two years earlier in 1990.

In 1999, when I left the case, the Harjo Petitioners had prevailed on the merits and successfully argued to the Trademark Trial and Appeal Board (TTAB) that cancellation actions based on the “may disparage” language are rooted in “public policy” so a laches defense should not even be available or apply, here. Five years before ordering that the team’s Redskins registrations be cancelled, the TTAB had wisely held in 1994 “there exists a broader interest — an interest beyond the personal interest being asserted by the present petitioners — in preventing a party from receiving the benefits of registration when a trial might show that [the team’s] marks hold a substantial segment of the population up to public ridicule.”

The good news, however, even in the face of the D.C. Circuit Court of Appeal’s disappointing ruling on laches, is that there is a brand new generation of Native American Petitioners, led by Amanda Blackhorse, to make sure that a brand new similar case is actually and finally decided on the merits. In fact, doesn’t this development demonstrate why the 1994 ruling that struck the team’s laches (slept on rights) defense was correct in the first place? The fact that, as long as the offensive team name continues, there always will be new Native American Petitioners reaching the age of majority anxious to object shows that their cause of action is rooted in public policy, not some personal and individual right that might be waived by failing to act quickly enough.

Again, putting the legal issues aside, why doesn’t the team do the right thing, as a responsible business, and hire a branding guru to engage in some serious and successful re-branding?

According to Above the Law, the first-year associate at Quinn Emanuel who sent the e-mails challenging the firm’s representation on the Redskins case (see previous post here), has been fired for failing the California bar for a second time.

Read the story at Above the Law here.

Second Bar Failure Is Proximate Cause for Quinn Associate’s Ouster

Wednesday, May 20, 2009 6:03 PM – By David Lat and Elie Mystal

Yesterday, we reported on an associate at Quinn Emanuel who had strong views about the firm’s recent victory in the Pro Football v. Harjocase, in which the D.C. Circuit upheld the Washington Redskins trademark in the moniker “Redskins.” We, along with many readers, speculated about whether the first-year associate would be able to hold onto his job after yesterday’s publicity.

We are now able to report that the Quinn associate was let go from the firm yesterday — but not because of the various “reply-all” emails.

Instead, the associate was let go because he failed the California bar exam. For a second time.

(Thus, as noted in the comments, any email indiscretions by him essentially amounted to harmless error.)

The firm declined to comment about individual personnel matters, but multiple sources report that it is the standing policy of Quinn Emanuel to part ways with associates who fail the bar multiple times.

But we shouldn’t necessarily look at the emails as an attempt to go out in a “blaze of glory.” As we understand it, the associate sent the first reply-all email — the one that was not meant to “rouse some rabble or down some debbies or outcrunch some crunchies” — before he found out that he failed the bar for a second time.

As for the rest of the emails, that might be a different story. More details, and a colorful “no comment” from the associate himself, after the jump.

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