Redskins Prevail in Offensive Trademark Case

Washington Redskins logoEarlier today (Nov. 16) the United States Supreme Court denied cert. in the case of Harjo v. Pro-Football, Inc., bringing to a close, at least for the moment, litigation concerning the legality of the Washington NFL team’s registration of its “Redskins” trademark. The decision not to hear the case was announced without comment.

In 1992, Native-American activist Suzan Harjo, on behalf of herself and six others, petitioned the Trademark Trial and Appeal Board (TTAB) to cancel six trademark registrations granted to the Redskins beginning in 1967. (Although team had used the name “Redskins” since 1933, it did not attempt to register the trademark until 1967.)

The gist of Harjo’s argument was that the TTAB had erred in registering the trademark because it violated section 2(b) of the federal Lanham Trademark Act, which prohibits the registration of a mark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

The Redskins (who do business as Pro-Football, Inc.) defended on grounds that the trademark was not offensive and that such an interpretation of the Lanham Act unconstitutionally violated the team’s rights under the First and Fifth Amendments to the United States Constitution.

In 1999, seven years after the initial claim, the TTAB ruled in favor of Harjo, finding that the trademarks “may be disparaging of Native Americans to a substantial composite of this group of people,” and “may bring Native Americans into contempt or disrepute.”  Consequently, it scheduled the cancellation of the offending marks.  The ruling was appealed to the United States District Court for the District of Columbia, which in 2003 ruled that the complainants had failed to establish that the marks were in fact disparaging and that in any event their failure to bring the claim in a timely fashion—25 years passed between the first registration and the initial complaint—resulted in it being barred by the equitable doctrine of laches.

On the appeal of that decision, the Court of Appeals for the District of Columbia ruled in 2005 that the laches defense was valid for six of the seven petitioners, but remanded the action to the District Court for a determination whether or not the defense was valid as applied to petitioner Mateo Romero who was only one year old when the mark was first registered in 1967.  It retained jurisdiction over the “disparagement” claim without ruling whether the TTAB or the District Court were correct.

Upon reconsideration the District Court concluded that the laches defense applied to Romero as well, given his understanding of the issues involved prior to reaching the age of majority and his failure to object to the registration until almost eight years after reaching the age of majority.  This conclusion was upheld by the Court of Appeals in May of 2009, and it was this decision that the Supreme Court decided today not to review.

There are apparently plans, however, to re-file the challenge to the registration but this time using Native American challengers who have just reached the age of majority.  The earlier Circuit Court of Appeals decision suggested that such plaintiffs would not be barred by the laches defense.  Such a case will presumably reopen the question of the propriety of the Redskins trademark.

Of course a reprisal of the original TTAB ruling would not prevent the Washington team from continuing to use the name “Redskins.”  It would, however, prevent the team (and the NFL) from excluding others from making use of the name.

A subsequent post will examine the historical background of the team name, Washington Redskins.

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Lavvie Dilweg (’27): MU Law’s Contribution to the NFL (and to Congress)

slide0005_image008Marquette University eliminated its varsity football team in 1960, and the heroics of the Golden Avalanche, Hilltoppers, and Warriors (as the team was variously known) are now dimly remembered, if at all.  There was a time, however, when Marquette produced a steady supply of players for the National Football League.   Beginning in 1920, a total of 70 former Marquette players found their way into at least one NFL game.

The first Marquette alumnus to play in the NFL was Edward Lewis “Bo” Hanley, a Milwaukee native who played wingback for the Detroit Heralds in 1920, the league’s inaugural season when it was known as the American Professional Football Association.   The 5’7”, 150 pound Hanley was born in Milwaukee in 1887, and was thus 33 years old during the 1920 season, his only year in the NFL.  When the Green Bay Packers entered the NFL in 1921, their center was 29-year old Marquette alumnus, Richard John Murray, the second Marquette student to play in the NFL.  “Jab” Murray, as he was known, was a native of Ocanto and was 6’1” tall and weighed a hulking 219 pounds.

The last Marquette player to join the NFL ranks was defensive back John Martin Sisk, Jr. who played for the Chicago Bears in 1964.   Sisk—whose father starred at Marquette in the 1920’s and with the Bears in the 1930’s—had played at Marquette as a freshman and then had transferred to the University of Miami when the school dropped football.   The last two Marquette football players to appear in the NFL were Minnesota Viking safety Karl Kassulke, who transferred to Drake University after Marquette dropped football and who entered the NFL in 1963, and Dallas Cowboy defensive lineman, George Andrie, who remained at Marquette for his senior year after the school dropped football and was then drafted by the Cowboys.  Both Kassulke and Andrie appeared in the Pro Bowl during their careers—Andrie did so on five occasions–and both appeared in the Super Bowl, albeit on the losing side.  Both players retired after the 1972 season.

However, the greatest of the Marquette alumni in the NFL was clearly LaVern “Lavvie” Dilweg, who played left end for the Milwaukee Badgers and the Green Bay Packers from 1926 to 1934, winning first team all-pro honors six times.

The 6’3,” 200 lb., Dilweg was born in Milwaukee in 1903.  He grew up in city of his birth and was a star football player at Washington High School in the late 1910’s and early 1920’s.  He continued his football career at Marquette where he won All-American honors as an end who played both defense and offense.

After two years in the college, Dilweg enrolled in the Marquette Law School from which he graduated in 1927.  The diploma privilege had not yet been extended to Marquette, but Dilweg took, and successfully passed, the bar exam during the summer following his graduation.  Having exhausted his college football eligibility prior to his third year of law school, Dilweg played for the NFL’s Milwaukee Badgers while attending law school during the 1926 season.

Dilweg was one of five former Marquette players on the Badgers roster that season.  Unfortunately, the professional Badgers, who featured eight rookie starters, were generally outclassed by their opponents in 1926.  The team finished with a record of 2-7, and folded before the official end of the season, bringing to a close Milwaukee’s official presence in the NFL.

In 1927, Dilweg signed with the Green Bay Packers and at the same time began the practice of law in Green Bay where he was to reside for the rest of his life.  During Dilweg’s years with the team, the Packers were one of the premier teams in the NFL, and he was one of its top stars.  After finishing second in 1927, and fourth in 1928, the Packers reeled off three consecutive NFL championships, and would have won a fourth in 1932, but for the NFL rule that ties did not count in the standings.  In 1932, Green Bay finished 10-3-1, but lost the title to the 7-1-6 Chicago Bears.   (Under modern rules, which treat ties as a half-win and half-loss, Green Bay would have been awarded the 1932 championship.)  Between 1929 and 1932, the Packers were a combined 44-7-3, with an undefeated 12-0-1 season in 1929.

In 1933, the NFL was divided into two divisions and the Packers level of play declined somewhat.  In both 1933 and 1934, they finished third in the NFL’s Western Division.   At the end of the 1934 season, Dilweg retired from football at age 31 to devote himself to his law practice and his other business interests.  He did, however, keep his hand in the sport by refereeing Big Ten football games on a regular basis until 1943.

In addition to his law practice, Dilweg was involved in the construction industry in Green Bay, as well as numerous other business and civic activities.  He served as a director of the Green Bay Blue Jays baseball team which was a member of the Class D Wisconsin State League, and from 1934 to 1943, he was in charge of the Green Bay Home Owners Loan Corporation (HOLC), a New Deal housing agency.

A strong supporter of Franklin Roosevelt, Dilweg was active in Democratic Party politics in Wisconsin.  In 1943, he was elected as a Democrat to the United States House of Representatives from Wisconsin’s 8th District.  His election marked only the third time since 1848 that the voters of Green Bay’s district had elected a Democrat to Congress.  By all accounts his celebrity as a former Green Bay Packer star contributed to his victory.  In the House, he served with a former Marquette Law School classmate, John B. Bennett of Michigan (’25), who was also elected in the fall of 1942.

Unfortunately for Dilweg, his stint in the House of Representatives turned out to be only a single two-year term as he went down to defeat with President Franklin Roosevelt as the Republican Party carried Wisconsin in the 1944 elections.  (Ironically, Bennett, a Republican, was also defeated in 1944, but he was later returned to Congress for nine additional terms.)

After leaving Congress , Dilweg resumed the practice of law in Green Bay but also maintained an office in Washington, D.C.  In 1961, he was named by President Kennedy as a member of the Foreign Claims Settlement Commission.  Dilweg died in Florida in 1968, just prior to his 65th birthday.  He is a member of the Green Bay Packers Hall of Fame, and his grandson, quarterback Anthony Dilweg, played in the NFL from 1989 to 1991 and with the Packers from 1989 to 1990.

The photo accompanying this post is of the Marquette Golden Avalanche preparing to play in the first Cotton Bowl in 1937.

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Who Was the First Black Redskin?

Historians of civil rights and sports are well aware of the reluctance of the NFL’s Washington Redskins to integrate their roster in the late 1950’s.  After the Detroit Lions became the eleventh (of twelve) NFL teams to add an African-American player to their ranks in 1955, Washington held out for another seven years as the League’s only lily-white team.

The Redskins’ owner, West Virginia native George Preston Marshall, declined to sign black players because he was concerned that his success in establishing the Redskins as the team of the American South would be undercut if the team was racially integrated.  (In the 1950’s, NFL teams individually negotiated their network television deals, and the value of the Redskins’ TV rights was enhanced, Marshall believed, by its popularity in the South, which had no major league football teams at that time.)  Others believed that Marshall’s own “Southern” views on race were a factor in his decision.

Marshall persisted in this view, even though the once-powerful Redskins had become one of the patsies of the NFL by the late 1950’s.  Between 1959 and 1961, the team finished last or next to last in the NFL Eastern Division each season with a combined record of 5 wins, 30 losses, and 3 ties.

Even a series of terrible seasons could not persuade Marshall to expand the racial base of his team.  It took pressure provided by the Kennedy Administration in early 1961 to finally force Marshall’s hand.  The Administration viewed it as a matter of public embarrassment that the NFL team in the nation’s capital was still engaged in Jim Crow hiring practices.  While there was nothing illegal about Marshall’s policy — there were no employment discrimination laws in the District of Columbia in 1961 — the Administration did have a certain type of leverage.  The Redskins were scheduled to begin play in the new federally owned and funded District of Columbia Stadium (later known as Robert F. Kennedy Stadium) during the 1961 season.

The stadium was under the control of the Department of the Interior, and Interior Secretary Morris Udall threatened to withhold the right to use the new stadium unless the Redskins agreed to sign African-American players.  After initially trying to call the Interior Department’s bluff by pointing out that it had hired virtually no black forest rangers, Marshall conceded, but only after Udall agreed that the integration requirement could be pushed back until the 1962 season.  Marshall’s cause had not exactly been helped by the support he received from the American Nazi Party, whose members picketed outside of the new stadium carrying signs saying, a bit ironically, “Keep Our Redskins White.”

The 1961 Redskins were even worse than normal, finishing with a record of 1-12-1 with their sole win coming in the season’s final game against the expansion Dallas Cowboys.  As a result of their league-worst record, they were entitled to the first pick in the 1962 college draft, which, consistent with the deal, they used to select black Heisman Trophy winner, Ernie Davis, a running back from Syracuse.

Davis had also been drafted by the Buffalo Bills of the rival American Football League, and Marshall was apparently concerned that he might not be able to sign Davis.  The two previous Heisman Trophy winners, Billy Cannon (’59) and Joe Bellino (’60), ended up with AFL teams, so the Redskins shortly after the draft traded the rights to Davis to the Cleveland Browns for star African-American halfback Bobby Mitchell.  Davis tragically died of leukemia before ever playing with the Browns, but Mitchell starred throughout the 1960’s for the Redskins.

Ask any Redskins fan to name the first black Redskin and he or she will almost surely answer “Bobby Mitchell.”  While that is the conventional answer, it is only part of the correct answer.  Moreover, the correct answer turns out to require a more specific definition of what one means by “first black Redskin.”

As it turns out, on the day that the Redskins tabbed Ernie Davis (December 4, 1961), they also selected African-American fullback Ron Hatcher of Michigan State in the eighth round of the draft.  Prior to the announcement of the trade of Davis, Hatcher signed with the Redskins, thus becoming the first African-American player ever signed by the team.  (Marshall, predictably, declined to be photographed with Hatcher at the time of his signing.)

Therefore, shouldn’t “Ron Hatcher” be the answer to the question “Who was the first black Redskin?”  Well, not exactly.  As it turns out, Hatcher played with the team during the exhibition season, but was one of the last two players cut before the opening of the 1962 season, so, while he rejoined the team later in the year, he was not on the Redskins roster on opening day.  Presumably, the “first black Redskin” is the first African-American to play for the Redskins in a regular season game.

After signing Hatcher and trading for Bobby Mitchell, the Redskins had acquired two additional black players during the 1961-62 off-season:  halfback Leroy Jackson and guard John Nisby.  Jackson was the Browns’ first-round draft pick in 1962, and his draft rights were packaged with Mitchell and sent to Washington in exchange for the rights to Davis. He was then signed by Washington.  Nisby was acquired in March from the Pittsburgh Steelers in an odd trade that sent 27-year-old Pro Bowl guard Ray Lemek from Washington to Pittsburgh for 26-year-old Pro Bowl guard John Nisby.  (Lemek and Nisby had been teammates on the Eastern Conference team in the 1961 Pro Bowl.)  Here Washington traded a white player for a black one.

All three of these men, Mitchell, Jackson, and Nisby, appeared in the first regular-season game of 1962, which was played in Dallas on September 16, and all three played important roles in the team’s first game as an integrated eleven.  Jackson ran back two kick-offs for a total of 48 yards, and Nisby played his expected role as the anchor of the offensive line as he began another Pro Bowl season at guard.  Mitchell, however, was truly spectacular as the Redskins came from behind to tie the much improved Cowboys, 35-35.

Mitchell caught touchdown passes of six and 81 yards from quarterback Norm Snead and scored a third touchdown on a 92-yeard kick-off return in the third quarter.  For the game he caught 6 passes for 135 yards and led the team in total offense.

Consequently, the answer to the question of the identity of the first black Redskin is three-pronged:  Bobby Mitchell, Leroy Jackson, and John Nisby.  But given his performance in the game, it is understandable that Mitchell is the one player that fans remember as the Jackie Robinson of the Washington Redskins.

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