Twenty-five years ago, as a law student at the University of Iowa, Stephen Baird began studying trademark law.
His research and writing on the topic earned him national recognition, and after graduating from the UI College of Law in 1990, Baird delved further into the field.
The Iowa City native specifically focused his attention on an obscure section of the federal trademark act that addresses potentially disparaging trademarks.
And last week Baird saw the fruits of his decades-old labor when the U.S. Patent and Trademark Office stripped trademark protection from the NFL’s Washington Redskins.
A three-judge panel ruled the team name is “disparaging to native Americans” and cannot be trademarked under federal law, which prohibits the protection of offensive language.
“It’s gratifying to see the hard legal work and hours and dedication put in on this case over the seven years I was involved pay off,” said Baird, whose father was a UI professor and who attended West High before becoming a Hawkeye himself.
The decision, which could cost the Redskins and the NFL millions in merchandise and sponsorships, has reinvigorating debate around the controversial brand and other team names viewed as disparaging at the professional, collegiate and high school level.
“I would love to see the team and the NFL do the right thing and change the name,” Baird said. “Clearly it’s offensive to a substantial group of people. And I think the team has made enough money over the years off a name that never should have been granted federal protection.”
Although canceling the Redskins’s trademark registration doesn’t force a name change, it could make it more difficult to protect infringement rights and defend against counterfeit products. But those potential consequences won’t play out until the Redskins exhaust their legal recourses.
And team officials have said they plan to appeal — a process that could take years.
Just ask Baird. In the 1990s, he experienced first hand the highs that come from such a decision and the lows that can follow years later through the appeals process.
As a rookie lawyer fresh out of law school, Baird in 1992 convinced his Minneapolis-based law firm Dorsey & Whitney LLP to take on a pro bono basis the first Patent and Trademark case addressing the disparaging nature of the Washington Redskins.
Baird conceived the petition and was the lead council on that case, which resulted in the first round of canceled trademark registrations for the Redskins in 1999.
But in 2003 a federal district court ruled in favor of the Redskins and overturned the trademark cancellations, saying the now older group of petitioners had waited too longer after turning 18 to file the petition. The U.S. Supreme Court, upon appeal, upheld that decision.
“Essentially it means you slept on your rights,” Baird said.
‘The stars lined up’
The idea of taking on disparaging athletic team names and logos through trademark law occurred to Baird after he moved to Minnesota in the early 1990s.
Baird had been studying the rarely used disparaging section of the federal trademark law for years but hadn’t considered the effect on athletic teams until 1992, when the Atlanta Braves and their “tomahawk chop” came to town.
That same year, the Washington Redskins visited for the Super Bowl, and thousands protested at the Metrodome in Minneapolis. Baird applied his research to the hot-button issue and penned an article on the topic that won the Ladas Memorial Award for best article on trademarks in 1992.
Around that time, Baird contacted well-known native American activist Suzan Harjo to ask if she had pursued the issue of disparaging team names from the trademark perspective.
“She had never considered that kind of approach because, as you expect, lay people don’t understand the federal trademark registry process,” he recalled.
Baird took the idea to the leadership of his firm, which was at the time trying to build up its tribal law practice.
“In the same way the stars lined up for the light bulb to go off in my head, the stars also lined up at the firm where I was a young attorney,” he said. “If you change any of the factors, none of this would have happened.”
On Sept. 10, 1992, Baird — representing seven native American plaintiffs, including Harjo — filed the petition that resulted in the first cancellation of the Washington Redskins trademark registrations.
Even though that victory later was overturned, Harjo knew the case had merit, and in 2006 she put together a class of younger native Americans to file an identical petition. That was the petition that last week resulted in the second momentous cancellation of the Redskins trademarks.
“They used the same legal theory employed in the Harjo case and the same evidence,” Baird said.
But this time, Baird said, he thinks the ruling will stick.
“I do think this will be a decision that survives appeal,” he said. “But I don’t know how long the team will attempt to drag it out and delay the final resolution. The team appears to have no interest in even discussing a name change.”
The way forward
Baird said he expects Redskins management to question the constitutionality of the section of the trademark law cited in the petition, and that could send the case to the Supreme Court.
“They’ll want to say it violates free speech rights, but I think that challenge fails,” Baird said. “Lower courts have rejected that challenge because the team isn’t being compelled to change its name.”
But losing trademark protection could have enough serious implications to prompt such a move.
“My hope is that the team sees the writing on the wall and does the right thing,” Baird said.
Even if that takes years, he said, the progress so far is a sort of victory in itself.
“All of this has brought significant attention to the issue, which is wonderful,” Baird said.
Jason Rantanen, UI associate law professor, said this section of the federal law is rarely used because the trademark office has so many other tools. That means the way forward is somewhat unknown — including the potential effect for the Redskins if their trademark protections disappear.
“Registration gives you additional bonuses that you don’t get with lack of registration,” Rantanen said. “You have presumption of validity and damages.”
Rantanen said he thinks the appeal portion of this case could last years and, even if the ruling is upheld, he’s unsure whether it alone will prompt a name change. That’s why native American activists are using media and political pressure too.
“It’s a multipronged attack,” he said. “I don’t think this itself will cause the Redskins to change its marketing. But it could lead to a change when fitting with everything else.”