This story won’t die — especially judging from the prominence of related words among search terms that reach this blog. The latest, which we missed when it came out in July and we were otherwise engaged, is that the NFL’s Washington Redskins again prevailed in a lawsuit brought by a group of American Indians, but by all lights not on the central question of whether the REDSKINS trademark should be canceled on the ground that it is “immoral” or “scandalous”:
In a ruling dated June 25 and first circulated [in early July], U.S. District Judge Colleen Kollar-Kotelly ruled that the youngest of the seven Native American plaintiffs waited too long after turning 18 to file the lawsuit that attempts to revoke the Redskins trademarks.
The lead plaintiff, Suzan Shown Harjo, said Friday the group will appeal.
“She ruled as we anticipated she would: for the loophole that would allow everyone to avoid the merits of the case,” said Harjo, president of the Washington-based Morning Star Institute that advances Native American causes.
Harjo and her fellow plaintiffs have been working since 1992 to have the Redskins trademarks declared invalid. They initially won â€” the U.S. Patent and Trademark Office panel canceled the trademarks in 1999 â€” but Kollar-Kotelly overturned the ruling in 2003 in part because the suit was filed decades after the first Redskins trademark was issued in 1967.
The U.S. Court of Appeals then sent the case back to Kollar-Kotelly, noting that the youngest of the plaintiffs was only 1 year old in 1967 and therefore could not have taken legal action at the time.
But Kollar-Kotelly’s new ruling rejects that possible argument. She wrote that the youngest plaintiff turned 18 in 1984 and therefore “waited almost eight years” after coming of age to join the lawsuit.
The judge did not address whether the Redskins name is offensive or racist. She wrote that her decision was not based on the larger issue of “the appropriateness of Native American imagery for team names.”
Well, from our point of view, “avoiding” the merits is the right thing for a judge to do when “mere technicalities” actually preclude a court’s legal authority to decide the merits. But sooner or later, we’re going to have to deal with this claim, and the whole rat’s nest of problems arising from the “immoral and scandalous” provision of the Trademark Act.