UNITED STATES OF AMERICA
PATENT AND TRADEMARK OFFICE
PUBLIC HEARING REGARDING ISSUES SURROUNDING
TRADEMARK PROTECTIONS FOR THE
OFFICIAL INSIGNIA OF FEDERALLY AND/OR STATE
RECOGNIZED NATIVE AMERICAN TRIBES
Commissioner's Conference Room
Room 912
2121 Crystal Drive
Arlington, Virginia 22202
Thursday, July 15, 1999
The hearing convened, pursuant to notice,
at 9:05 a.m.
PANEL MEMBERS:
SHARON MARSH, Administrator for Trademark
Policy & Procedure
DEBBIE COHN, Senior Trademark Administrator
ELEANOR MELTZER, Staff Attorney, Office of
Legislative and International Affairs
Q. TODD DICKINSON, Acting Secretary of
Commerce, Acting Commissioner of Patents
and Trademarks
A G E N D A
SCHEDULE SPEAKER PAGE
1. Sharon Marsh, Administrator for
Trademark Policy and Procedure....... 3
2. Nikki Daruwala, Social Research
Analyst, Calvert Group, Bethesda,
Maryland............................. 7
3. Mamie Rupnicki, Tribal Chairwoman,
Prairie Band Potawatomi Nation....... 11
4. Melody L. McCoy, Staff Attorney,
Native American Rights Fund.......... 23
5. William Lockard, Attorney, O'Donnell &
Schaefer, Los Angeles................ 34
6. Ambassador Charles W. Blackwell, The
Chickasaw Nation..................... 52
7. Professor Ellen J. Staurowsky, Ithaca
College, Ithaca, New York............ 60
8. Michael D. Hobbs, Jr., Attorney for
Mohawk Carpet Corporation, Troutman
Sanders, LLP......................... 79
9. Gary Brouse, Interfaith Center on
Corporate Responsibility............. 102
10. Michael Haine, Director, National
Coalition on Racism in Sports and
Media................................ 118
11. Thomas Brooks, Gadsby and Hannah, for
the International Trademark
Association (INTA)................... 135
12. Robert Goff.......................... 148
13. E. Leonard Rubin, The University of
Illinois, Gordon & Glickson, LLC..... 162
P R O C E E D I N G S
1. SHARON MARSH
MS. MARSH: I think it's about nine, and we'll go
ahead and get started.
Good morning, all. I am the Administrator for
Trademark Policy and Procedure. To my left is Debbie Cohn
who is an Administrator for Trademark Operations, and to my
right is Eleanor Meltzer who is a staff attorney in our
Office of Legislative and International Affairs and has put
in an enormous amount of work to put this event together
this morning, and we're really grateful for her efforts.
On behalf of both the Department of Commerce and
the U.S. Patent and Trademark Office, we would like to
welcome you this morning and thank you very much for your
interest in today's hearing. As you may already know, due
to the efforts of Senator Bingaman who is one of the
senators representing the State of New Mexico, Congress last
fall passed a law which requires the Patent and Trademark
Office to study a variety of issues surrounding the
trademark protection for the official insignia of federally
and/or state recognized Native American tribes, and at the
end of September, we will submit a report to Congress on our
findings.
We have solicited public comments by publishing
two notices in the Federal Register, one on December 29,
1998, the other on March 16, 1999, and we received quite a
few responses to both of those notices; however our acting
commissioner, Todd Dickinson, as well as our staff, thought
it was important to also hold public hearings on this issue.
The hearing today is the third and final public
hearing in a series that began last week in Albuquerque, New
Mexico and continued in San Francisco. We received a great
deal of useful information at those hearings and look
forward to your comments today. We are here to listen and
to learn from you about the issues involved in trademark
protection for the official insignia of Native American
tribes.
Before we get started, though, I wanted to take
just a minute or two to tell you a little about what we're
doing at the PTO currently to safeguard the intellectual
property rights of Native Americans. The PTO is not a law
enforcement agency like the FBI or U.S. Customs. So we
don't send out the trademark police if a wrongdoer infringes
someone else's trademark. Instead, we have the more limited
role of examining and registering trademarks, as well as
examining and granting patents, but our trademark act has a
particular provision in it that explicitly prohibits
registration of marks that might be disparaging or that
might subject a false association between the applicant and
the person, group, or thing identified in the mark.
As a result, the office does refuse to register
many marks incorporating the names or symbols of Native
American tribes. Since, I think, about 1994, all trademark
applications that contain the name of tribes, recognizable
likenesses of Native Americans, symbols perceived as being
Native American in origin, and any other application which
the office believes suggests an association with Native
Americans are examined by one examining attorney who has
become an expert in this area.
We also have several other systems in place to
safeguard against the wrong party obtaining trademark rights
on something to which they're not entitled. We have
something called the letter of protest procedure where a
third party, if during the examination of an application
they can submit evidence to show that the term or the symbol
is unregisterable, we also have an opposition and
cancellation procedure. All of those things help to ensure
that trademark registrations are issued in accordance with
the trademark act.
So that was, in a nutshell, an overview of the
role of the PTO in protecting the intellectual property
rights of Native Americans. Before we get started, I'm
going to turn the floor over to Eleanor who has few
housekeeping items.
MS. MELTZER: Oh, Sharon, thank you very much, and
thank you all for being here this morning and for your
patience in corresponding with the office.
We've scheduled everybody for 15 minutes, and,
please, I will let you know when you're about 10 minutes
into your testimony. I'll let you know when you have about
five minutes left. When you come up to the table, could we
ask you to state your name and your affiliation for the
record so that our court reporter, Cathy Crump, can capture
all that information for the record. And if there's any
time left after all the scheduled people have testified, if
anyone has additional remarks or would like to speak from
the floor, then we'll take comments at that time.
Thank you very much, Sharon.
MS. MARSH: Our first speaker is Nikki Daruwala
who should come forward and take the floor. Nikki is a
social research analyst with the Calvert Group in Bethesda,
Maryland.
2. NIKKI DARUWALA
MS. DARUWALA: Thank you. Hello. Good morning.
My name is Nikki Daruwala, and I represent the Calvert
Group, a leading socially responsible investment firm
located in Bethesda, Maryland. Calvert's socially
responsible investment practices are based on the belief
that caring for our natural environment and recognizing the
importance of human dignity are essential to the long-term
health and well-being of our increasingly interdependent
world.
We express our thanks to the commission and the
staff of the U.S. Patent and Trademark Office for this
opportunity to provide our comments in response to the
statutorily required study of Public Law 105.330 surrounding
trademark protection for the official insignia of federally
and/or state recognized native American tribes. We would
like to address the Issue No. 4 as stated in the Federal
Register notice June 3, 1999.
It is our understanding that the Patent and
Trademark Office does not currently protect Native American
tribal insignia including names and logos. It is our belief
that this lack of legal protection has resulted in
tremendous harm to the Native American community and to
American society as a whole. The manipulation and blatant
misuse of Native American imagery is visible on a daily
basis within our society. These includes the use of Crazy
Horse label apparel, the Washington Redskins football team,
and the Indians and Chief Wahoo of the Cleveland baseball
franchises.
These logos and the negative images associated
with their use are marketing ploys used by corporations and
sporting industry to promote and sustain racism within
society. Contrary to corporate and industry belief, these
images in no way promote or honor the Indian community.
Calvert Group supports the notion of positive portrayals of
all individuals and ethnic groups, furthermore, actively
supports the rights of Native Americans to influence and
control traditional, cultural and religious symbols.
We object to the use of mascots, logos, symbols,
and other tribal insignia that portray Native Americans in a
negative light and promote racism and bigotry within our
society. Despite repeated public opposition by numerous
reputable Native American organizations such as the National
Congress of American Indians and the National Coalition on
Racism in Sports and Media, the unauthorized use of Native
American imagery and logos, symbols, and mascots remains
prominent.
It is Calvert's firm belief that public awareness
and education are critical to the advancement of fair and
accurate portrayals of Native Americans, their cultures,
histories, and traditions. We believe that the Patent and
Trademark Office has an important role to play in this
effort. The government agency's business statement as
stated in Article I, Section 8 of the Constitution is as
follows: For over 200 years, the basic role of the Patent
and Trademark Office has remained the same, to promote the
progress of science and useful arts by securing for limited
times to inventors the exclusive rights of their respective
discoveries.
The cultural heritage and traditions of native
people should be afforded the same protections under the
law. By allowing corporations and sporting organizations to
use unauthorized Native American insignia as part of their
marketing efforts, the Patent and Trademark Office is, in
fact, sanctioning this infringement with the government seal
of approval.
We thank you for the opportunity to comment.
MS. MARSH: Thank you.
3. MAMIE RUPNICKI
MS. MARSH: Our next speaker is Mamie Rupnicki.
MS. RUPNICKI: I usually don't need a mike.
Good morning. Thank you. My name is Mamie
Rupnicki. I'm chairwoman of the Prairie Band Potawatomi and
speaking on behalf of my tribe. Perhaps you need to know a
little bit of history of it. We come from around the Great
Lakes, but due to the infringement of farmers, settlers, we
were forced to move to the State of Kansas. So, therefore,
we have been there since 1834.
The main thing that I'm looking at, and I didn't
want to read my testimony for the simple reason it's long.
It's tedious, and that means I know absolutely nothing about
what I'm talking. So what I want to do is kind of opt out
what is in my testimony, and I also request that my full
written testimony be entered into record along with our
logo, the resolution, and a portion of the minutes where we
adopted the logo.
Current trademark law disallows registrations of
trademarks that consist or comprise a flag or a coat of
arms, insignia of the United States, of any state, and its
all recognized everywhere. No one is allowed to use without
proper approvement [sic]. There is no similar protection
for tribal official insignia. Right now the function of the
trademarks are to indicate the origin of goods to provide
and guarantee a quality, and that's the purpose of your
trademark law.
The problem that the tribes are facing now is the
unauthorized use of our trademark. Anything dealing with
the Indian Nation is a insult, major insult to the tribes
themselves. We are very close, connected, and hopefully we
have something in place that will protect us. It also, at
some point in time, creates confusions as to tribe supports
are associated with the product or service being promoted.
Unauthorized use of tribal insignia by non-tribal entities
and commerce and the lack of adequate protection against
this practice under current trademark law takes advantage of
the identity of tribes without restoring any of the profits
or benefits for use of insignia of the prescribes.
The PTO must be reminded that many tribes consist
of the poorest Americans and that most official tribal
insignia have religious meaning for the tribes.
Unauthorized use of our insignia for profit by someone else
is an affront to our sovereignty, culture, and well being.
I won't go through what out logo says about us. It's very
religious. It has high meaning, and I would not care to
discuss the meaning of.
The need for heightened protection in light of the
aforementioned tribal sovereignty and the federal trust
responsibility, federal trademark law must provide stronger
protection against unauthorized use of tribes' official
insignia. Many tribes have consistently been recognized as
distinct, independent, political communities qualified to
exercise powers of self-government, and the United States
Constitution categories tribes with other sovereigns for
purposes of commerce related functions. When it empowered
Congress to regulate commerce with foreign nations along
with several states and with Indian tribes, U.S.
Constitution Article one, Section 8, Clause 3 stipulates
this.
The sovereignty of tribes have been recognized by
the federal government and at best should be recognized and
protected in its trademark law. Federal trademark law
should at least provide the same amount of protection if not
more to Indian tribes for the unauthorized use of their
official insignia as it does for other sovereigns. The
federal trust responsibility actually calls for heightened
protection of the interest of Indian tribes over that of
other sovereigns.
The trust responsibility requires that the federal
government act in a manner that furthers the best interests
of the tribes. As an office of the federal government, the
PTO must honor the federal trust responsibility owed to
tribal governments by instituting protections against the
unauthorized use of tribal official insignia, and I'll make
my suggested changes.
We support, the Prairie Band supports and
incorporates by reference the suggested changes to the
current federal trademark law by the Tuolumne Band of Me-Wuk
Indians in its April 30, 1999 comments to the PTO. The law
should preserve the ability of tribes to register the flags,
coat of arms, and official insignia, but the law should be
amended to prohibit the registration or use of this insignia
or simulations thereof unless the tribe authorizes such
registration or use, and the way that the tribes--the way
that our tribe operates is to do it by resolution. That is
a law within our tribe, and everything must be included for
that use.
Further, trademarks consisting of or compromising
tribal official insignia registered before the enactment of
this amendment should be cancelled immediately upon the
amendment becoming law. If a trademark owner can prove that
the tribe authorized its use of the insignia, then such
trademark would not be subject to cancellation. Only those
persons who have deliberately used the official insignia of
a tribe or a simulation thereof without the tribe's
authority would be affected by such a cancellation
provision. Definition of a tribal official
insignia should include flags, coats of arms, seals, and
other emblems of tribal governmental authority. It should
be defined as any symbol used by a tribe to signify its
identity or any symbol identified by the tribal government
as official. Merely banning third party registration of
marks identical to a tribal official insignia is not enough
to fully protect a tribe's interest. The law must also band
simulation thereof.
I believe, also, that at some point in time when
we are putting these amendments to the--when we are looking
at PTO, that there should be a separate piece to where we
have a federal line as into the Federal Register, these are
all the federally-recognized tribes. These are their
insignias. These are their logos. These are their flags,
and I believe that's the main thing.
As United States has its stars and stripes,
everywhere they go they say, Well, that's United States. We
as tribes also use that and recognize it within other tribes
as our logo. But it's the Non-Indian or the commercial or
the corporation who misuse. So that's what I would be
looking at.
The Prairie Band contents that the administrative
feasibility should not be an issue when discussing how the
general government will honor its trust responsibility to
the Indian Nation. In addressing this concern, however, we
believe that the PTO will not be unduly burdened by the
changes to trademark laws suggested in this testimony. The
PTO is equipped to handle these tasks without undue burden.
The impacts on the PTO prohibiting new
registrations and use of tribal official insignia by
unauthorized third parties would be minimal. Indian tribes
would be significantly benefitted by prohibiting new
registrations and use of tribal official insignia by
unauthorized parties. It would provide the protection they
deserve under federal trademark law. The only persons who
would be negatively affected by such changes to federal
trademark law are those who currently use tribal official
insignia without the tribe's permission for their commercial
gain, and those people should be prevented from co-opting
our symbols regardless of the burden or cost of obtaining a
trademark or proving that the tribe did indeed authorize
their use of the insignia.
The burden should not be on the tribes which have
limited resources to police the federal trademark register
and file proceedings against all instances of unauthorized
use and misappropriation. On behalf of the Prairie
Band, I want to thank you for this opportunity to
participate in the process to better protect tribal official
insignia. It is a problem that must be remedied. Failure
to do so erodes our sovereignty, offends our history,
culture, and religion.
MS. MARSH: Thank you. Just one question.
MS. RUPNICKI: Yes.
MS. MARSH: Did you say that you included in your
written materials a copy of your insignia?
MS. RUPNICKI: Yes.
MS. MARSH: Does that include all insignia that
you think would be--
MS. RUPNICKI: This is the only one pertinent.
MS. MARSH: Okay.
MS. RUPNICKI: Because it's drafted on our--it's
drafted on our stationery, and it's drafted on official
resolutions, and when someone wishes to see our minutes,
sometimes we incorporate it there too.
MS. MARSH: That will be useful to us. Even under
our--as I mentioned, under our current law, there are
sometimes provisions of the statute that prohibit
registration of insignia such as this, and we have a problem
in the office with just being knowledgeable about
recognizing insignia, and so we can use this.
MS. RUPNICKI: Well, my problem is that I'm really
not clear on the process that you use, and I think a
majority of the tribes are unclear of a process. I feel
that if information could go out to the tribes and be
disseminated out amongst them, that they're aware of it.
I feel at a disadvantage. I'm the only tribal
leader here, but I'm very interested because of the
different little blurbs that are coming out about using the
Indian in their little comedy-type sketches and whatever
else goes along with it; and the way I feel, if it was a
black individual, they'd be on top of it, but we're not that
many that we can hold major things to where we can get it
done. If there were more of us, perhaps we would be able to
and our vote counted where it should be.
Then I think we would be able to do something, but
as it stands now, we are at a point of maybe four million
people, very small. Although I don't claim to be a
minority, we are still small nations within this nation, and
I think that process needs to be recognized.
But if you need my help on drafting some of this,
I have no problem doing it.
MS. COHN: Sharon mentioned in her introductory
marks we have a letter of protest procedure that probably
not many people are familiar with, and that allows a third
party such as yourself, at no cost, to file a protest with
the office supplying evidence that we may not otherwise have
access to as to why this mark shouldn't be registered, the
fact that it's a religious insignia or some type of symbol,
and this gives you the opportunity to educate the office if
you feel that we're ignoring a very important aspect of a
certain tribe.
MS. RUPNICKI: I think the other information that
I would probably need is just how do I go about doing this.
MS. MARSH: Well, for the letter of protest
procedure that Debbie mentioned--
MS. RUPNICKI: I can protest it all.
MS. MARSH: We have to be aware that--
MS. RUPNICKI: Yes, it's coming in.
MS. MARSH: It sounds like you would advocate a
procedure, setting in place a procedure for tribes to submit
to the PTO--
MS. RUPNICKI: Yes.
MS. MARSH: --their insignia and sacred symbols.
MS. RUPNICKI: And maybe get a little newsletter
out, Okay, this is coming out. This is what we're looking
at. A large majority of the government agencies, we usually
get something to that effect, and this is coming up and
whatever. Okay.
MS. MARSH: Thank you.
MS. RUPNICKI: Thank you. I appreciate it.
4. MELODY L. MCCOY
MS. MARSH: Our next speaker is Melody McCoy.
MS. MCCOY: Good morning. My name is Melody
McCoy. I'm a staff attorney with the native American Rights
Fund in Boulder, Colorado, and I'm here today on behalf of
one of the Native American Rights Fund's clients, the
Tuolumne Band of Me-Wuk Indians who are located in east
central California. And the Native American Rights Fund
is a national non-profit legal defense fund for American
Indian tribes. We're very interested in this issue about
trademark law and tribal official insignia because we
represent the Tuolumne Band on better protections whether by
means of tribal or federal law for all of their intellectual
property. So this caught our attention last October as a
very timely step in this area.
I appreciate this opportunity to address the
Patent and Trademark Office this morning on the statutorily-
required study. The tribe has already submitted written
comments in February and in April in response to the
agency's notices, and we're very pleased that federal law
may extend trademark protection to tribal official insignia.
My comments today will focus on the legal and
policy reasons, how we suggest this extension be
accomplished. Federal law, of course, recognizes trademarks
as a form of intellectual property, and at present there are
few federal laws that specifically protect the intellectual
property of American Indian, Alaskan native tribes, but
there should be federal laws, and there can be, I think
especially in this really specific and focused area of
tribal official insignia.
At least since the United States Constitution was
adopted, federal law has recognized that Indian tribes are
separate sovereign governments, and under current trademark
law, the official insignia and flags of other sovereign
governments--that would be the federal government, the
states, foreign nations--cannot be registered. That is
viewed as good because the non-registrability of the
insignia and flags prevents exclusive use by anyone of the
official insignia and flags of the federal government, the
states, and the foreign nations.
Congress has wisely chosen to preclude this
exclusive use of governmental authority emblems. So it
might be easy to say that all that needs to be done is to
add tribes to this list of sovereigns. Tribes are
sovereigns just like the other governments, and they should
have the same protections as the others regarding their
official insignia. I call this the "parity theory" by which
Congress would simply be correcting an oversight or an
omission and putting tribes on a par with the other
governments. This is an attractive option and one that
would be completely justifiable.
The tribe here, however, has suggested another
approach and one which we also believe is justifiable. Our
suggested approach is this: Since there is now to
prohibition on the registrability of tribal official
insignia or flags under federal trademark law, anyone,
including the tribes themselves, can register their official
insignia provided that all the other requirements are met.
We suggest that this registrability for tribal official
insignia be preserved but that it should be made exclusive
to tribes.
And I'll explain the justification for this
approach in a minute, but let me first make clear that our
suggested exclusive right for tribes to register their
official insignia is not the one-way street in favor of
tribes that it may seem. This is largely because we suggest
that the definition of tribal official insignia be very
narrow. It should follow the definition that the Patent and
Trademark Office and the courts have developed when
determining the official insignia of the federal
governments, the states, and the foreign nations. That
means it would be only those emblems, devices, which
represent governmental authority such as seals and flags.
Most tribes, in fact, already have an official
seal or a flag that they have developed according to their
own internal procedures, whether that's a political process
or a religious process or some other established form of the
tribe. They've been using this regularly for governmental
purposes.
A critical part of our suggested approach is that
tribal official insignia should consist of words plus
graphic elements. Words alone, including tribal names,
should not be considered tribal official insignia. Again,
this is consistent with how the official insignia of other
governments have been defined, and it eliminates the
controversial issue of whether tribal names in and of
themselves should be eligible for trademark registrability.
This, to me, really is a parity issue. It's not unique to
tribes.
The names of states are not in and of themselves
considered the official insignia of states for trademark
law. Neither should tribal names in and of themselves be
considered tribal official insignia. We suggest, however,
that trademark law and other federal law generally be
reviewed to see what if any protections tribal names in and
of themselves are warranted. For this purpose, though, the
official insignia, the official insignia of tribes, should
be distinctive, just like, again, the official insignia of
the other sovereign governments.
The reasonable equivalences of tribal official
insignia, like reasonable equivalences of non-tribal
governments, should be protected. I think this is going to
avoid the situation where a tribe, for example, as the
official insignia of, you know, three arrows and a quiver
and, you know, a non-tribal entity attempts to use four
arrows and a quiver or something like that. Reasonable
likenesses should be protected.
I think the Patent and Trademark Office is very
familiar with that kind of issue. It comes up all the time.
We suggest that Congress direct the Patent and Trademark
Office to establish a separate dedicated registry of tribal
official insignia. Since tribal official insignia are
somewhat new to the Patent and Trademark Office, this data
base would be really useful for all interested parties,
tribes, non-tribal entities, even the other governments.
However, presence on the registry would not in and
of itself provide positive trademark rights for tribes.
There we're going to need some amendments to the law to
obtain the positive trademark rights. Tribal official
insignia, once on the registry, would then need to be
registered as a trademark just like any other trademark, but
we suggest that the law provide that in the future tribal
official insignia can only be registered by tribes unless
the tribe consents otherwise. In addition, any tribal
official insignia that happened to have been registered or
used by third parties without tribal consent as of the date
of the law should be subject to cancellation or infringement
proceedings.
Now, this exclusive right regarding the
registrability of tribal official insignia is, again,
treating tribes a little bit different than the other
sovereigns because we're not going to have the complete ban
on--we don't suggest the complete ban of registrability of
tribal official insignia, but we think our exclusive right
suggestion is justified first and foremost by the legal
relationship which is unique between the United States and
Indian nations.
The federal recognized sovereignty of tribes
expressed so many time in so many ways by Congress is really
important for the Patent and Trademark Office to understand
in executing this study because tribal sovereignty is going
to be the basis by which Congress is going to address this
matter. Our suggested approach is also justified because of
the very narrow definition of tribal official insignia that
we pose mitigates and eliminates any negative impact on
third parties, and negative impacts could also be minimized
by the traditional forms of patent and trademark law
defenses that they could be able to show tribal consent as a
defense to cancellation. It would provide for a fair use
that is a non-commercial education type of use defense to
infringement claims.
That's our approach. The Native American Rights
Fund and the tribe thank you for this opportunity to testify
today on this important matter. I'd be happy to try to
answer any questions or provide further information to help
you.
MS. MARSH: I just had one question. You said
prior registrations would be suggest cancellation. So would
you envision that there would be a burden on the affected
tribe to bring a cancellation proceeding through our current
mechanism rather than just a blanket when the law is enacted
the registration cancels?
MS. MCCOY: I guess I hadn't really thought about
that myself. I'm not sure how it works outside the area of
Indian law. You know, generally when something--like the
Redskins decision simply cancelled that trademark protection
for that, but that was after voluminous evidence.
MS. MARSH: Right.
MS. MCCOY: What's the norm in trademark law when
something is cancelled?
MS. MARSH: The normal procedure is that an
interested party has to affirmatively bring a cancellation
proceeding to our office, and then the parties have a chance
to, you know, debate the issue, and then a decision is made
on the merits.
MS. MCCOY: One thing that occurs to me--it
doesn't answer your question, but I'm having trouble
imagining that a non-tribal party has registered what I
would call a true tribal official insignia at this point
without it being the tribe or an entity thereof. But let's
say as a practical matter it might not be such an issue.
The other thing is I'd be happy to provide an
answer to this at a later time, but I'm thinking that if in
this instance if proper notice is given through the
development of this law before it's enacted, I don't see why
immediately upon enactment of the law that they shouldn't be
subject to cancellation, and the burden should be on the non-
tribal party to show that they have the authorization.
Because I think that's what we're really looking
for. If people want to use an official--if a non-tribal
party wants to use an official tribal insignia, they should
have the consent of the tribe, you know, so that they can
work out among their own the kind of commercial recompense
or royalties or whatever they want from that, and the tribe
should be free to license that, but it shouldn't be that the
tribe has to establish that you've misappropriated our seal.
MS. MARSH: Thank you.
MS. MCCOY: Thanks.
MS. MARSH: One more question.
MS. MELTZER: Thank you very much. In your
remarks, you mentioned that the official insignia should not
be eligible for registration by others unless the tribe
consents. My understanding is that currently licensees,
that is authorized parties, are not eligible to register the
mark. Only the true owner of the mark is eligible. Would
you suggest an exception to the current state of law so that
licensees, authorized users of official insignia of native
American tribes, would be eligible for registration of those
marks?
MS. MCCOY: I'm trying to think of what they would
get by registration as opposed to the license itself. It
seems to me it would be governed by that. I guess, again, I
hadn't picked that one apart so much. My intuition is that
if--is that the registrability should be allowed. I just
think, again, in a practical sense it's rare that the tribe
is going to license its official seal to anyone to be
registered. They're going to want to hold on to the
registrability of that.
So probably then they should have the
registrability. If the same benefits to the tribe in terms
of licenses can be accomplished just through licensing, then
I would say stick with that.
MS. MARSH: Thank you.
5. WILLIAM LOCKARD
MS. MARSH: Our next speaker is Mr. William
Lockard.
MR. LOCKARD: Good morning. My name is William
Lockard. I'm an attorney practicing in Los Angeles,
California. I'm appearing today to set forth concerns I
have as an intellectual property practitioner and academic
with the suggestion that Native American tribes be granted
trademark or trademark-like rights in their official
insignia. First, let me set forth by
background in the field. As I said, I'm an attorney
licensed to practice in California. I've been an
intellectual property practitioner for the last 10 years,
concentrating in copyright and trademark issues. I've
served as a vice president of legal affairs at Fox, Inc.,
which is the parent company for Twentieth Century Fox and
Fox Broadcasting, and for Metro-Goldwyn-Mayer, Inc., which
is the parent for MGM, United Artists and Orion. I'm
currently of counsel with the firm of O'Donnell & Schaefer
in Los Angeles. For the last several years I've also served
as an adjunct professor of law at the University of Southern
California Law School where I teach classes in copyright and
intellectual--sorry--internet law.
I have a number of concerns, some of which are
academic, some of which are practical about the suggested
enactment of the rules concerning Native American insignia.
Starting with the more conceptual problems, my concerns, I
think, are based on the idea or flow from the fact that
trademarks are monopolies. They're limited monopolies which
are granted by the government in order to achieve certain
other goals.
Normally, monopolies are disfavored in law, but
with the trademark law, we grant monopolies, limited
monopolies in order to achieve goals concerning unfair
competition and consumer fraud and deceit protection.
Because they're monopolies, I think we need to watch
carefully to make sure that those monopolies are not granted
in a broader way than they need to be to achieve the limited
goals that we have.
As a result, in the trademark law of the United
States, trademarks are limited in terms of time, in terms of
subject matter scope, and at times in terms of geographic
scope. Somewhat elegantly, I think, in the law, all of
these limitations are achieved through the simple
application of a use requirement. Trademark law requires
use in order for trademark rights to be generated. This use
requirement has the additional effect of letting the
limitations be moderated as trademark use continues without
the need for additional involvement, other judicial or
administrative involvement.
So trademark right expands and more importantly
contracts when the monopoly needs to because the use has
been reduced. It's a concern, therefore, to talk of
creating trademark rights which don't have a use requirement
attached to them. Indeed, I think that the use requirement
is so central to really the whole concept of trademark that
really we're not talking about trademark rights. We're
talking about what I'd like to refer to as supertrademarks,
trademarks that are really governmental charters that are
grants of rights directly from the government rather than
trademark rights.
Now, those kind of grants are not inherently evil,
and the government has made such grants in the past. Groups
such as the United States Olympic Committee, the Boy Scouts
and the Girl Scouts, the American Red Cross, all have been
granted statutorily exclusive rights to use their emblems
and names. Whether or not you agree with those grants and
the appropriateness of those kind of--those particular
grants, I think there are distinctions to be drawn with the
grants that have--the grants that exist--the grants of
supertrademark rights that exist in the law versus the kind
of grants that are looked for here. Generally, the
grants that exist in the law to date which are few in number
are grants to organizations which are clearly charitable
organizations, and they relate to marks which were already
exclusive to those groups and which were identified
commonly, I think, by the public even prior to the grant of
rights with those groups. Here, we have a different
situation, I believe. With regard to Native American
tribes, while they certainly have at times a charitable
aspect to them, they are very complicated organizations.
They are political organizations. They're economic
organizations. They're cultural organizations. So they
don't have the same identity that supertrademarks have
previously had. In addition, the kind of marks that are
potentially going to be protected under this law are not
necessarily marks which are familiar to the public and which
are related already in the public's mind to some extent
exclusively with the tribes.
The world is full of emblems and symbols which
have been and which continue to be of central cultural
importance to the original group in which they were created.
The plays of Shakespeare, the pyramids, the Coliseum, Mount
Fuji, the Star of David, Wagner's Ring Cycle, the Liberty
Bell are all important and vibrant elements of their native
cultures. It would be literally impossible, I think, to
list, let alone to grant rights to the important emblems of
each of the many groups that exist in our society.
Moreover, these emblems and insignia exist
independent of any grant of governmental rights. They
maintain their vibrancy and power without such protection,
and there doesn't appear to me to be any distinction with
warrants, particularly warrants treating the insignia of
Native American tribes differently.
Moving away from the conceptual and academic,
there are some practical issues, I think, in terms of
granting these rights. Obviously, there's a complication
that is added when you add any mark to the register, when
you add any particular group of marks to the register.
There are higher costs. There are higher searching costs.
There are higher costs in terms of a greater number of
potential marks which are going to be knocked off by things
that are on the register, but I think this cost is even
higher than it appears on the face in that supertrademark
rights are very broad and far reaching. It's essentially
equivalent of a grant of rights in all classes for all goods
and all services.
When I deal with supertrademarks in practice, I
find it difficult to advise a client on how to proceed when
a potential mark of the client may conflict with or
potentially may conflict with a supertrademark. While you
can draw distinctions, there is a real fear that the kind of
rights that are granted, that have been granted with
supertrademark are so broad that you are likely to run into
a real risk of a claim, which has its own costs regardless
of whether you win, and of a loss on the merits in court,
particularly given that a court is likely to be strongly
influenced by the grant of a supertrademark by Congress, by
the congressional determination that these kind of
trademarks should be granted broad rights.
Because clients are generally risk adverse, and
the clearance issue is one of evaluating risk, the effect is-
-to me, the effect of this is that when the supertrademark
is implicated in the search, the tendency is simply to back
away from it altogether and to move on to a different mark
which really grants these supertrademarks an even greater
penumbra of rights than they are by the broad statutes that
they have. As a result of this, there's sort
of a series of black holes in the area of trademarks, areas
that you just avoid because you're going to get sucked in
and destroyed by them. Right now, those are limited.
There's a small number of supertrademarks. I think when we
talk about the enactment of rights in the tribal insignia,
we're adding a vastly large number of supertrademarks with
which people have to be concerned, and we're creating a
vastly large number of these black holes that create serious
problems in terms of developing and creating new trademarks
in the commercial world.
Internationally, I think there's an issue to be
concerned with. Some others, I think in the submissions,
have raise the question of making sure, of course, that we
were in compliance with all existing treaty obligations of
the United States. Obviously, that needs to be a concern.
At the same time, I think there's a concern with regard to
the potential future problems in trade negotiations that the
grant of rights might create. Over the last
several years the question of whether and how to protect the
interests of indigenous peoples in traditional works or
materials has become more prominent throughout the world.
Regardless of your particular stand of the appropriateness
of U.S. protection of Native American insignia, it's clear
that the protection of materials of indigenous peoples has
the potential to cause substantial international trade
problems.
By way of example, consider the possibility that
Greece passes a law saying that no one may make commercial
use of the words Apollo or Nike or that Germany decides to
revive copyright protection for traditional folk tales in
the forms of Snow White and Cinderella and Hansel and Gretel
and other Grimms fairy tales or even that Japan bans the
importation of rice, not based on trade protectionism, at
least not purportedly, but rather under the idea that it's
protecting traditional farming methods that are culturally
important to Japan. In each of these cases U.S. commercial
interests are certainly implicated, and the U.S. government
will certainly be called upon to intervene diplomatically.
I think what we need to be concerned is that it
will be particularly difficult for the U.S. government to
act in these cases if, indeed, the United States Government
was one of the first countries to move ahead to protect the
rights or to grant special rights or extraordinary
protections to its own native indigenous peoples.
We ran into a similar problem, I think in the
eighties, with regard to copyright where the copyright
industries were very concerned about problems in trademark
and the copyright laws of other countries. They came to the
Commerce Department, asked the U.S. trade representative to
intervene with particular countries who were a particular
problem, and the response of those countries was how can the
United States come and tell us how to write our copyright
law when, in fact, the United States is not a signatory to
the primary international copyright convention, does not
keep up to what are the accepted international standards in
copyright law, and now you're coming and telling us that we
should change our copyright law. And that's a powerful
argument, and it's difficult to respond to, and it gives
foreign governments a strong basis to object to the
diplomatic intervention of the United States.
The last issue I want to discuss is a sort of
overall issue which is a question of the relative benefit
and costs. First, we shouldn't lose sight of the fact that
Native American groups are fully entitled to protection
under the existing trademark laws and, in fact, make use of
that to some extent. Those protections, as have been
discussed here this morning, extend to more than just
registration of marks. They also provide protection for
unregistered marks and protection against the disparaging
use of insignia and trademarks, whether or not the
complaining party has trademark rights of that insignia.
The recent decision in Harjo v. Pro-Football makes it clear
that this is a meaningful and enforceable right. So in many
of the most important ways, these insignia are already well
protected.
Second, it's not clear when you work through the
analysis what tangible benefit the protection of Native
American insignia would actually offer to native American
tribes. So the direct use of these insignia in commerce or
in trade or as tribal symbols is protected, is already
protected under the law. The suggestion that there should
be protection for these insignia across the board in all
classes and pertaining to any mark which has a likelihood of
confusion with those symbols, I think is unrealistic and
potentially disastrous given that a number of these symbols,
emblems, are likely to be more simple designs which is not
possible to really pull out of the public domain and give
exclusive rights to, which means you're left with the
possibility of granting rights, exclusive rights to insignia
only to the extent that they're not--that they're copied
exactly, which means realistically any potential user will
simply make the necessary changes to make certain that the
emblem that they want to use is not an exact duplication of
the insignia.
Again, I don't think that this ultimately results
in a net benefit or a strong net benefit to the Native
American peoples. Clearly, as a philosophical and political
matter, protection for Native American insignia has
substantial meaning, but it's difficult to measure against
the commercial considerations, but the insignia and cultural
emblems have a wide range of other entities, and groups
within our society also holding substantial meaning and
protection of these insignia and emblems from disparagement
and offensive and commercial use is inappropriate--I'm sorry-
-is appropriate and already available in the law.
I think offering extraordinary protection to any
of these insignia or emblems creates little meaningful
additional benefit while inflicting a substantial practical
and financial cost on the public domain, governmental
resources, and the commercial marketplace. Thank you.
MS. MARSH: So you have no problem, though, with
the existing provisions of the Lanham Act on disparaging
marks, marks that create a false association with a
particular tribe?
MR. LOCKARD: No. In fact, I think that adds to
the balance that you need in the law, both to protect tribal
insignia and the important emblems of any group in society.
MS. MARSH: And you wouldn't object to the PTO
making a greater effort to become educated about what these
native insignia are so that we can identify them when
they're the subject of applications?
MR. LOCKARD: Certainly not. Education is always
good.
MS. MARSH: Yes.
MR. LOCKARD: Knowledge is power.
MS. MARSH: Yes. Do you guys have anything?
MS. MELTZER: I have one question.
MS. MARSH: Okay.
MS. MELTZER: Mr. Lockard, you mentioned that many
groups within our society have insignia and cultural emblems
that are important to them. Could you discuss, just
briefly, if there's any distinction with Native Americans
given the U.S Government's trust relationship with Native
American groups?
MR. LOCKARD: It's not a question I've thought
about. Obviously, that is an additional consideration. I
believe that to the extent there is some additional duty on
the part of the United States Government to act as a
fiduciary, to consider the needs of its trustee, the overall
considerations about the benefits and the burdens don't
evaporate. They still exist, and I think ultimately when
you go through the analysis, you say, well, while there may
be some additional push to put this provision in the law,
it's still outweighed by the practical concerns and by the
cost to society and particularly when you consider the
limited actual benefit that the Native American tribes may
receive from it.
MS. COHN: I have a question. In the last part of
your remarks, you talked about, I think, your fear is that
an insignia may contain a certain element that is commonly
used in other marks.
MR. LOCKARD: Yes.
MS. COHN: I'll use a feather as an example, and
your fear is that nobody will be able to use a feather in
any other form outside of that insignia?
MR. LOCKARD: I don't think it's quite that
extreme, although obviously at its most extreme, that would
be a concern. I think the concern is if we look at this
from the standard trademark point of use and apply a
likelihood of confusion analysis, you end up in a situation
where the number of marks that are potentially knocked out
is very large, particularly if the protected insignia do not-
-are not particularly complicated and don't have
particularly strong identifying elements of their own.
MS. COHN: Well, isn't that true with any mark?
MR. LOCKARD: It's true with any mark, but it's
not--but this is where we run into the use problem. When
we're dealing with a supertrademark, and you're saying
essentially you have rights in this insignia in classes one
through forty-two for all goods and for all services and
saying now we're going to apply a likelihood of confusion
analysis, we're banning a remarkably large number of
potential marks and taking, really, an usually large number
of potential marks out of the public domain, to what I think
is limited benefit.
MS. COHN: But of course that rationale would not
apply to a Section 2(a), False Association Analysis; right?
You're not opposed to having that available?
MR. LOCKARD: No, no, and I think that may be an
appropriate route to take, is to say that to the extent that
people are clearly using a mark in order to get an
association with a particular tribe, it may be appropriate
to put in some kind of requirement as well in order to avoid
inadvertent infringement and the kind of traps that fall--
the trap of falling into an inadvertent infringement.
MS. COHN: That's not currently in Section 2(a).
MR. LOCKARD: No, but it currently is applied to
some of the other supertrademarks that are in the law.
There is some kind of knowingness or intentional
requirement.
MS. COHN: Thank you.
MR. LOCKARD: Thanks.
6. AMBASSADOR CHARLES W. BLACKWELL
MS. MARSH: Our next speaker is Ambassador Charles
Blackwell.
AMBASSADOR BLACKWELL: Good morning. My name is
Charles Blackwell. I am the Chickasaw Nation Ambassador to
the United States of America, a lawyer and a schoolteacher
by training and a diplomat by trade. I come to you this
morning on behalf of the 40,000 members of the Chickasaw
Nation and Governor Anoatubby to speak to you generally on a
policy level.
I want the record to be clear, and I want the
record to reflect that I am Chickasaw. I am a lawyer, but I
am not an intellectual property expert. Having grown up and
been raised in Indian country in South Dakota and New Mexico
and Oklahoma, I fully see that, as a matter of policy,
there's probably a great need for a heightened level of
awareness of the trust responsibility as it applies to
American Indian tribal governments, American Indian, Alaskan
Native and Native Hawaiian tribal governments and through
which the individual rights of American Indian, Alaskan
Native and Native Hawaiian citizens are further refined and
protected under the trust relationship, and it is protection
which indeed is what we're talking about.
This was dramatically brought home to me some
years ago when I first moved to Washington and took myself
to an upscale carryout gourmet place to buy food to take
home, and on the floor was a large basket filled with the
packages of Chickasaw Chips, the dirty chip, the dirty
potato chip. My first thought was that maybe we had begun--
unbeknownst to me, maybe the tribe had begun to manufacture
and produce and market and sell potato chips.
I picked up a package and looked at it, and they
were being done in Memphis, Tennessee by a company who had--
was not owned by the tribe, had no affiliation with the
tribe, and after I spoke with them, which I took the
initiative to do, weren't aware of the fact that the tribe
still even existed. Like many Non-Indians in Mississippi,
Alabama, and Tennessee, and Georgia, they think that after
the removal, the tribe went away which meant that we
perished. We haven't. The Chickasaw Nation is alive and
well and functioning very happily in former Indian
territory, now the State of Oklahoma.
So Chickasaw chips, the dirty chip, inspired me
both as a lawyer and as diplomat to begin to increase my
awareness of this. My personal dedication is to assisting
you on behalf--and the federal government in taking a good
look at this process. We're especially grateful to Senator
Bingaman and Senator Campbell and our champions in the
Congress who assist you in this matter as well. I
submit for the record my written testimony, and I will point
out, though, that perhaps a further discussion or further
review of the trust responsibility, the federal trust
relationship of American Indian tribal governments is
appropriate. As domestic sovereign nations, we are not
covered by any particular law. We are--our status is
embodied, in fact, indeed, in the commerce clause of the
Constitution, is where it begins, further affirmed by the--
by acts of Congress, by Supreme Court decisions, by
executive orders.
We are unique in the scheme of things. For those
who are uninformed, perhaps to look on us in some way as
comparable to the states, we have citizens that we're
responsible for. We have land that we oversee. We have
inherent sovereign powers to determine the rights of our
membership, to exclude those from our lands whom we would
not have there, and to choose our own forms of government,
and to present to the world our identity; and it is in the
intellectual property area that is this identification of
the symbols and emblems of our governments.
The Chickasaw Nation has a seal. The Chickasaw
Nation has a name. The Chickasaw Nation has a tribal
identity, to the best of which the federal government has a
fiduciary trust responsibility to assist the tribe in
protecting, but prior to European contact, I would suspect,
having not been there but being somewhat of a historian and
being Chickasaw, I would have suspected that tribes had
their marks.
The Choctaws and the Creeks were traditional
enemies. Their land was side by side in Georgia. To know
whenever you were leaving Creek country and entering into
Choctaw country was important for people to know who were
not of those tribes, and there were marks along the trails.
So there's a historical appreciation among the tribes
themselves for their symbols of government and identity; and
I'm reminded by some of the testimony today that the tribes
will, as a matter of policy, be very supportive and very
grateful and willing to be involved in the process to help
where voids of information do exist.
I would suggest that the Non-Indian literary
industry, cinema industry, and others have done all they can
and all they should, perhaps, and the entertainment
industry, to embellish on tribal identity. In the history
of this country, there have--we've gone through periods of
time when American Indian tribal governments have been
diminished militarily and economically. That is no longer
the case and simply by our presence, 553 strong, we know
that for as long as there is a United States of America,
there will be American Indian tribal governments and
American Indian people to deal with.
So as a matter of policy, I think that lays the
foundation for attention to the matter. As a practical
matter, we suggested a registry of American Indian tribal
government insignia. This is, we view--the insignia of
individual governments, we view to be just as choosing their
membership, to choose the marks to identify them as
Chickasaws or Choctaws or as Crows or as Cheyennes, is an
inherent sovereign right of that tribe, and it seems a
little daunting, I'm sure from your side of the table, to be
dealing with--to have dealt in the past with an identifiable
group of organizations or states or peoples and to have 550
added to that, but we're patient people. We've been dealing
with these matters for hundreds of years and however long it
takes, we're willing to continue to deal with it.
We would urge a beginning to be made. I support
the testimony presented by the Native American Rights Fund,
and as I've noted we appreciate the support and the
attention of Senator Bingaman and Senator Campbell and
Senator McCain and their colleagues, Senator Inouye, who are
helping bring attention to this matter.
In highlighting and reviewing my written
testimony, we have offered suggestions on how official
insignia should be identified and how we urge the Patents
and Trademark Office to establish a register that embodies
the trust responsibility, and whereas I would suspect--the
Chickasaw Nation, and I would suspect all tribal nations
governments would be interested in doing things that
maintain a parity as the governments of domestic sovereign
nations with other governments. And as an aside, I would
say that recent attention and activity in this area only
points out the need for increased awareness and sensitivity.
Whenever I called the folks in Memphis to ask why
they called it Chickasaw Chips, they said it had a ring to
it, and they didn't think it bothered anybody, and they were
somewhat surprised. I suggested to them that the Chickasaw
Nation, being alive and well and having an education
foundation trust fund for its young people, would appreciate
contributions based on their profits, and they changed the
name.
So we--it's been my experience both as an attorney
and as a diplomat and as a Chickasaw grandfather that if you
don't--you never get kissed unless you ask. So we're asking
you to address this matter, and we'd appreciate your
attention. Thank you for the opportunity to be here. If
you have questions, I'll be pleased to entertain them.
MS. MARSH: I don't think so. Thank you.
AMBASSADOR BLACKWELL: Thank you.
[Q. Todd Dickinson enters the hearing at 10:15
a.m.]
7. PROFESSOR ELLEN J. STAUROWSKY
MS. MARSH: Professor Staurowsky is our next
speaker.
PROFESSOR STAUROWSKY: Is it appropriate to first
express my appreciation for the fact that no one fled the
room when they recognized an academic? I so appreciate
that.
My name is Ellen Staurowsky. I'm an associate
professor of sports sociology at Ithaca College. Some of
you may be wondering what sport sociology is, and it's
simply sociology as it pertains to the sport industry,
nothing all that glamorous.
I stand before you today as a private citizen but
also as an educator and someone who has been researching the
issue of Native American insignia, symbols, imagery as
they've been marketed and mediated by corporate entities for
the past five to six years, largely in response to things
that occur in my classroom and questions that my students
raise. So I'm compelled from an educational perspective to
look at this, and I think that's the context out of which my
remarks come.
So you're not going to hear me talk a lot about
trademark law. In fact, I'm way out of my element on that,
but I'm going to talk about the social context out of which
policy decisions and legal statutes are often written.
I would like to express my appreciation to the
commissioner and to the staff for this opportunity to offer
my comments and a special thank you to Eleanor who I've been
dealing with specifically.
I'm only going to address two particular points
that were raised in the December Federal Register. I'm
going to talk about the broader issue of the definition of
the term official insignia, and then I'm also going to
direct my comments to the seventh issue which had to do with
other relevant factors.
On its face, the prospect of formulating a
definition for the term official insignia of federally
and/or state recognized tribes appears to be fairly
forthright. One might venture to propose, consistent with
definitions as they appear in various dictionaries, "any
badge of authority of honor, mark, signifier, sign or symbol
that's accepted by a recognized tribe would qualify as their
official insignia". At some level, that is in fact how it
should be.
The realities that necessitate this study testify
to the fact that the matter is not nearly so simple. The
long-standing history of corporate appropriation of Native
American symbols, imagery, and personages in the mass
marketing of consumer products throughout the century
presents a significant collection of concerns that should be
addressed and appreciated in the context out of which any
definition emerges and will subsequently be applied.
As a departure point, I would assert that
heretofore the major producers, disseminators, and mediators
of what is typically thought of as Native American insignia
have been Corporate America and their educational
institutions, not Native Americans. This realization raises
serious questions about how any of us come to know what we
know about Native Americans, what entities create messages
that contribute to our perception of what we know about
Native Americans and the extent to which we've been educated
and socialized to respectfully and carefully address these
issues. Conspicuously, Native American
imagery serves as the basis of community identity for at
least 2,500 elementary and secondary schools nationwide
along with 67 colleges and universities around the country.
As the most visible sign and symbol of the educational
enterprises--of these educational enterprises, the imagery
used in the formation of group identity, team loyalty, local
rivalries, and community rallying points serves as the most
consistent and systematic lesson about Native Americans or
the educational landscape. Nowhere else in American society
has a people's heritage and culture been so neatly, cleanly,
and effectively reduced to the level of a bumper sticker
than in the Native American images selected to represent our
nation's youth sporting teams, wrapped in institutional
authority and official sanction.
It is rare that these symbols are recognized at
the creations of dominant power structures to which Native
Americans have traditionally had little or no access.
Inattention to thoughtful inclusion of Native American
history within school curricula, coupled with the reduction
of Native Americans to stereotypes by our educational
institutions, has served to profoundly miseducate the vast
majority of Americans, Indian and Non-Indian alike. When I
say Non-Indian--or when I say Indian, I refer to my students
in class who comment that they have learned more about their
heritage in a sports sociology class than they did
throughout their former schooling, which I find to be
shocking.
The inherent problem this poses when confronted
with the task of devising a workable definition of official
insignia is illustrated in the case of the Cleveland
baseball franchise. The legal protections afforded by 17
trademarks issued by the U.S. PTO support the club's ability
to perpetuate stereotypes associated with the Native
American community, more specifically the generic concept of
an Indian and a chief. I make reference to what many people
know of as Chief Wahoo.
The very notion of the tribe is codified as a
structural part of the organization by virtue of its
registered trademark--and this is in caps--the tribe. This
convergence of language and symbol, corporate financial
interest, and legal protection has curiously transformed the
Cleveland baseball franchise into a federally-recognized
tribe. Marketing its Indian identity for profit, the club
ranked second only to the New York Yankees in the sale of
licensed merchandise, generating approximately $15 million
in revenue from team shop and catalog sales in 1998.
Comfort level with the Indian images associated
with the club is exponentially increased through mass media
exposure. In a four-hour telecast of a game, a viewer
watching throughout will be exposed minimally to things
Indian an average of 650 times, and that is when the Indians
are playing as opposed to the Indians and Braves.
Despite two decades of opposition from virtually every
Native American group in the country to Cleveland's
continued use of the Chief Wahoo logo on the grounds that it
is a racist symbol, the franchise has leveraged its power of
position and place in the community to persuade the public
that its use of this imagery is justified, assigning--and I
put this in quotes--historical significance, end quote, to
the name. The franchise publishes a story in its media
guides, press releases, web site, and other publications
claiming that in 1915, quote, A local daily newspaper ran a
contest, and the name Indian was suggested by a fan who said
he was doing it in honor of an Indians player named Louis
Francis Sockalexis. Tellingly, the historical claim made by
the franchise significantly distorts the events that
occurred in the club in 1915 and inaccurately represents
Sockalexis' connection to the name.
I point out the article attached which
substantiates which I just said and leads you through that
historical analysis.
In addition to raising questions about whether the
franchise has violated the conditions under which a
trademark may be refused, as delineated in the Lanham Act by
falsely suggesting a persons living or dead or presenting
material that is deceptive, the franchise's continued use of
Native American imagery replicates a pattern of distortion
found frequently when these images are examined closely.
Because an overwhelming amount of competing
insignia already exists representative of the dominant
cultures appropriation of Native American images over a
prolonged period of time, attempts to define official
insignia for federally and/or state recognized tribes will
require the concomitant re-regulation or possible
abandonment of what I call manufactured Indian-like insignia
or Native American symbolic facsimiles that have become such
an integral part of American consumer culture. In effect,
part of the challenge at hand is clearing away of
unauthentic to make room for the authentic.
With that as background, I'd recommend two
specific principles to be used in the formulation of the
definition of official insignia. The first principle being
that primacy be given to native American groups and
representatives. My reason is as follows: Credibility
needs to be afforded to the meanings, values, and
significance of symbols, images, and persons as defined by
the Native American community, not by the dominant culture.
As Native American signifiers have been contested during the
past three decades, there has been a tendency to poll
average Americans about their opinions and viewpoints. In
the case of the Washington football franchise, respondents
have been asked about their attitudes regarding the term
"Redskins". The Cleveland baseball franchise justified the
retention of their name and logo in 1993, citing the results
of a poll of fans who reported that they did not find the
imagery offensive. Many of them citing the Louis Francis
Sockalexis story.
Most recently, there is discussion under way by
the Liz Claiborne company to survey consumers about their
associations with the tag line Crazy Horse. From a research
methodology perspective, these inquiries may, in fact,
reveal the opinions of Americans. It cannot be assumed
however, that the opinions expressed are either studied or
informed. I contend that these studies, for the most part,
violate the fundamental research tenet of logical validity
and ought to be more properly viewed as measures of the
degree to which Americans are undereducated or miseducated
on these issues, rather than as legitimate measures of the
offensiveness of the terms or insignia in question.
This tendency to reduce the verifiable documentable
treatment of Native Americans to mere opinion is confronted
in the dissenting opinion of Associate Chief Justice Durham
of the State Supreme Court of Utah in a recent case
concerning the use of the term "Redskins" on vanity motor
vehicle license plates in that state. The majority opinion
in McBride and Brummett v. Motor Vehicle Division of Utah in
January of this year was, in fact, favorable to the Indian
plaintiffs/appellants which resulted in the decision being
sent back to the licensing bureau to apply a reasonable
person or in this case a reasonable Indian standard in
determining the offensiveness of the term. Although
the decision itself was favorable to Indians, Durham points
out that the majority erred by failing to declare outright
that the term is offensive based on the evidence presented.
He elaborated in his dissent that the majority had ignored
the dictionary definitions and the historical roots of the
term "Redskins" as explained by texts and articles presented
in the case, dismissing all of this evidence as nothing more
than opinion.
Although the creation of avenues for individuals
to voice and express their opinions in a free society is
tremendously important, there is also an implicit and
explicit expectation that cultural histories and religious
traditions will be honored and respected. For too long
Americans have been empowered by romantic mythologies or
permitted in the absence of information to ignore the
tradition and histories of Native Americans as represented
in these symbols. Part of the task of devising a definition
for official insignia is an understanding that it is
inappropriate to selectively render certain heritages,
cultures, and religions debatable while others automatically
qualify for protected status. Whereas it tests their
imagination to think that we would poll Americans to
determine the level of offensiveness that might result if an
acknowledged ritual were parodied and presented as half-time
entertainment, there is little hesitation to invite anyone
to comment about Native American customs, practices, and
traditions, suggesting by the very asking that these are
things about which Non-Indians have a right to comment upon
and at liberty to discount. A stark example of this
emerged in October of 1997 when the Stanford University
marching band performed what they considered to be a satire
of Irish culture, featuring a character called Seamus
O'Hungry whose cultural heritage was depicted by a band
narrator as a sparse one, consisting only of fighting rather
than starving. Additionally, two band members appeared in
costume as a Catholic cardinal and the devil and proceeded
to engage in a mock debate wherein the fictional cardinal
was portrayed as stupid and backward. Although the Stanford
band has drawn upon Catholic stereotypes before in its skits
during famed Notre Dame football contests as evidenced in
the 1991 incident wherein a drum major donned a nun's habit
and led the band while beating a crucifix on a drum, two
things are notable.
Apologies from Stanford University officials in
both instances were immediate, and there were no generalized
calls to survey or poll Americans about whether they found
the behaviors offensive. In contrast, Native American
religious symbols and practices such as the wearing of eagle
feathers, chanting, and dancing have been held up in public
display at athletic contests for the edification of fans and
in turn marketed as consumer items for decades. In the
process, these symbols have been routinely desecrated or
distorted in service to American capitalism in a manner that
would not be tolerated for any other cultural or religious
group.
The steps taken as a result of this study have the
potential to relocate the balance of power where it should
be on these issues with Native America rather than with
Corporate America.
I know I'm running out of time. In terms of
principle number two, I'd urge that there would be a
rethinking relative to persons specifically. I know that
those are included in insignia, and I think that special
steps need to be taken to ensure that the histories of
people like the esteemed Lokota leader Crazy Horse not be
appropriated for fashion.
And in closing, relative to other factors, I'd
urge you not only to consider feasibility and cost, but I'd
also ask you to consider what kind of compelling reasons can
be found by looking at what the potential benefits to this
are, and most specifically I think that there are three
benefits: the restoration of power and efficacy to Native
Americans by returning to them control over the insignia
deriving from their religious and cultural practices and
beliefs; number two, the resurrection of an aspect of Native
American pride diminished and undermined each time insignia
are represented disrespectfully or inappropriately; and
number three, the contribution to a more human and humane
society, more fully informed and educated.
Thank you very much.
MS. MARSH: I just had one quick question. Are
you then advocating cancellation of existing registrations
for any Native American insignia?
PROFESSOR STAUROWSKY: I think as a blanket
comment, yes. Of course, there may be certain specific--I'm
speaking most specifically about educational institutions
and also franchise, professional sport franchises primarily.
So in those two domains, for the most part, I think they
should go.
MS. MARSH: Okay. Any other questions?
COMMISSIONER DICKINSON: My name is Todd
Dickinson. I'm the acting commissioner of Patents and
Trademarks, and I apologize for being a little bit late. I
know that my panelists did a great job without me, and I'm
pleased to be here today and thank you very much for your
testimony, Professor.
I just had a couple of quick questions too. It's
very interesting testimony. A lot of what we have been
asked to investigate by the Congress concerns whether we
should have a registry of official insignia, not whether we
should dwell on the question as we have already dealt with
actually most recently at the TTAB of whether Section 2(a)
should be invoked against particular marks that are found to
be offensive or scandalous, though this is very valuable
information to have. One of the questions we asked at
the previous hearing and solicited from witnesses was the--
whether or not they had sought to register their own marks,
whether the Indian nations or tribes had sought to do that
for their own purposes. Some had apparently and some had
not. Do you have any opinion on the advisability of that?
PROFESSOR STAUROWSKY: I don't feel qualified to
answer that response or that question.
COMMISSIONER DICKINSON: You've noted concerned
about the registration of Crazy Horse for a mark for
clothing.
PROFESSOR STAUROWSKY: Yes.
COMMISSIONER DICKINSON: Would it trouble you any
differently if the Lokota tribes or the heirs of Crazy Horse
sought to register it for clothing?
PROFESSOR STAUROWSKY: I think that that's a
decision that they need to be making rather than the Liz
Claiborne Company simply lifting the term because it's a
snappy term. I think just as the previous speaker talked
about Chickasaw Chips and the fact that there's something
compelling about how that sounds, a marketing agenda is very
different than distorting the history and the legacy of an
esteemed leader who we don't learn a great deal about in our
classes anyway.
We don't have a context out of which we can put
this use in terms of Liz Claiborne up against any kind of
reality about who Crazy Horse actually was to really balance
what's going on, and so what we learn is we learn that Crazy
Horse is associated with malt liquor. We learn that this
expression may not even be a person, but we don't really
know who that real person is, and that's what I think the
damage is.
COMMISSIONER DICKINSON: You have had testimony,
and I think we note from our own records that a number of
Native American tribes are seeking to register marks that
include their names and other insignia for various services,
for example, and probably most prominently recently gaming.
Do you have a concern about that relative to the context of
your testimony?
PROFESSOR STAUROWSKY: No, again, my testimony is
really limited very much to educational institutions. I
haven't studied that issue.
COMMISSIONER DICKINSON: One of the other concerns
that was raised during the hearings so far was if we created
a registry of official insignia, if I read your testimony
correctly, you would take a very broad definition of
official insignia to include the name of a tribe, for
example, would be, I think, within your definition or
individual elements of design perhaps. Could you suggest a
mechanism for us of how to approach the problem that we see
in a lot of our registrations of conflicts when one tribe
would seek to register an element that another tribe also
felt was an element of their cultural heritage, was part of
their official insignia?
PROFESSOR STAUROWSKY: Again I think that's
something that needs to be determined by the Native American
community and discussed between those two entities.
COMMISSIONER DICKINSON: Okay. Thanks.
PROFESSOR STAUROWSKY: Thank you.
8. MICHAEL D. HOBBS, JR.
MS. MARSH: Our next speaker is Michael Hobbs,
attorney for Mohawk Carpet Corporation.
MR. HOBBS: Good morning. My name is Michael
Hobbs, and actually I am a member of the law firm of
Troutman Sanders on behalf of Mohawk Carpet Corporation.
I'm deeply honored to be here on behalf of myself, my firm,
and our client.
I prepared a rather lengthy, actually, submission
for written testimony, and rather than read it--I noted that
it's a windowless room, but I don't want to send people
fleeing for windows to jump out of if I bore them and try to
read this, plus I'm not sure how the read a footnote, quite
frankly.
So in any event, what I've done and what I'd like
to do is to first of all request that my written testimony
be read into the record verbatim, and then, secondly, what
I'd like to do is two things, first of all to hit the high
notes in terms of what I think are the pertinent testimony
here. Secondly, I've heard some questions that have been
posed by the panel in terms of as you're wrestling with
this, what do you do, how do you enact this, and then lastly
to answer any questions that you've got.
If in the course of addressing something, a
question pops in your mind, please feel free to interrupt.
I view this as a dialogue as well, and if you're wrestling
at something, at the end of the day, you're going to have to
submit a report on this.
So on behalf of, again, myself, my client, and my
firm, we've examined this issue to which a public comment
has been requested, and as a preliminary statement, I think
I echo what's been said in terms of we are absolutely,
positively, unequivocally in favor of protecting
intellectual property of Native American tribes. I think
that goes without saying, and I just wanted to repeat it
though, because I think that's fundamental in terms of what
we're trying to achieve here; though when I listen in terms
of the Chickasaw Chips, how do you stop that? What do you
do in terms of that? I think all of us say that's wrong,
that shouldn't be done, but then how do you deal with that
within the fundamental foundations of trademark law?
I'm an intellectual property lawyer. That's the
fundamental basis in which I deal with these issues. Having
wrestled with that question and examined it, we would
propose three things, that first of all in examining the
current Lanham Act, we believe it's adequate, that it may
need some tweaking, it may need some modification in terms
of practice, but the actual Lanham Act, particularly the
provisions 2(a), 2(d), we believe are significant and
sufficient to protect Native American tribal rights.
The second aspect is we're significantly concerned
that if there's a loose or a vague definition in terms of
official insignia, then it could cause staggering impact and
the repercussions that, frankly, you all are going to have
deal with, I'm going to have to deal with, the public is
going to have to deal with, and Native American tribes are
going to have to deal with. It's a significant concern.
The last point we've got is I, frankly, I'm not an
Indian rights expert. The issue of Indian sovereignty, I am
completely out of my league. I can't issue and address
that. That seems to me to be a fundamental concern in terms
of the issues you're addressing. I think our point is,
though, that if there is an amendment after the hearings
you've been to, the written testimony, the recommendations,
yes, something needs to be done. The current Lanham Act
doesn't actively and doesn't sufficiently protect Native
American tribal rights. I think we would say that it is
being protected, but again we defer to your judgment in
terms of that; but if it's to be changed, our view is a very
narrow modification is in order, and we believe that on that
narrow modification, Native American tribal rights will be
adequately protected.
In going through this and listening to the
testimony, I actually had a question for the group. How
many of you all are intellectual property attorneys? Just
raise your hand. Okay. About half a group. It seems to me
that in listening to the questions and listening to the
testimony that part of the issue that people have a concern
with is perhaps not knowing exactly how the process works in
terms of how a trademark gets examined, and if I could
digress for about two minutes just to go over that, because
I'm just impressed with the group that is here today in
terms of the representation, the knowledge, and just the
information that everyone has.
But as an intellectual property practitioner, I've
got a little narrow bit of information that I'd like to
share, and that is as follows: If I represent the Coca Cola
Company, one of Atlanta's trademarks, which I don't, but if
I did, I'd file a trademark in the Patent and Trademark
Office for Coca Cola, it's out of my hands. It goes to the
Patent and Trademark Office. An examiner gets it on his or
her desk and then goes through and makes several
determinations. First of all, they go through and
say is there another existing registration or prior
application that has prior rights and it's confusingly
similar, the likelihood of confusion. There's a test called
the Dupont Test that's a 13-factor test. An examiner will
go through that and say is there likelihood of confusion.
I'm applying for Coca Cola, is Cactus Cola confusingly
similar, and they will go through and make that analysis.
The second analysis they'll make is in terms of is the mark
description. Does it describe the product I want it to
identify and thereby--it was talked about earlier--a
monopoly, does this give me a monopoly to the word computer,
internet? I mean, there are a lot of different words out
there I need to describe in commerce. There are several
other aspects, though, that an examiner will review.
They will review--under 2(a) of the Lanham Act,
they will review and say does this--and there's several
tests. First of all, does it create a deceptive mark, does
it create a false association with another institution, and
then third, is there a disparagement, defamation? And those
are all factors that the Patent and Trademark Office
currently does right now. They make those determinations,
and I think at the outset Ms. Marsh talked about and said,
yes, that is part of it.
I can speak anecdotally. I am very aware as a
practitioner that under 2(a) grounds it doesn't have to be
registered. If it creates one of those three aspects, a
deception, a defamation, a false association with one of
these institutions, the Patent and Trademark Office has to
be aware of it, but if it's an institution, they will reject
it. It is not entitled to federal registration on that
basis, and so--I started out as a teacher, so I had to get
my two minutes in on that.
But with that explanation, having reviewed the
arsenal that's currently before the Patent and Trademark
Office that is at its disposal, our submission is it's
sufficient right now, that if you go through--if you have
Chickasaw Chips, is that deceptive? Do I see that and
think, gosh, I didn't know the Chickasaw Nation was making
potato chips? Yeah, I probably would. I would say, gosh,
you know, this is a new line of business, as you said. That
would be rejected under current Lanham Act law.
The next thing is does it create a geographic
association. If I see something that creates an assumption
that came from an Indian reservation, a Native American
reservation, that would be rejected. If it defames or
creates a scandalous mark, for example the Redskins on the
basis of the most recent TTAB decision, that would be either
rejected, or if the mark has issued, it would be cancelled.
The beauty of all of that, though, is you don't
have to pay a dime to do that. That's what the Patent and
Trademark Office does. They will reject all of these marks
on that basis. Now--
COMMISSIONER DICKINSON: Actually, you have to pay
$245.
MR. HOBBS: But actually, as an institution,
though, if you qualify as an institution--I paid $245 to
register my mark, but there isn't a fee if you're an
institution. So I think what had been alluded to earlier
perhaps is education, that there are, from the counts that
I've seen, various testimony, between 550 and 600 state and
federally-registered or recognized Indian tribes. That is a
significant number. How do you keep up to date on that?
Well, it seems to me that the way to handle that is part of
the education process.
Examining attorneys go through and have regular
education programs. New examining attorneys are given that,
and it seems to me that's part of the process, that there is
an education component that's involved in this. Here are
the tribal official seals of the various Native American
tribes, and that ought to be part of the education process
in terms of it. Do you need to amend the Lanham Act to do
that? No, we would respectfully submit.
Other avenues or arsenal at the disposal of the
Patent and Trademark Office to deny a registration are 2(d).
Is there a likelihood of confusion? We ran a search of the
records of the Patent and Trademark Office, and it appears
to us there are about 200 pending applications, existing
registrations that are in the name of Native American
tribes. So it's being used to a certain extent. Part of it
may be a lack of awareness in terms of its existence. Part
of it may be a barrier in terms of cost, but it is a very
real avenue in terms of 2(d).
Some other avenues that are out there that I
haven't heard discussed are currently there are the Indian
Arts and Craft Act. It provides a very real barrier to use
of a mark in association with goods or services but also in
terms of registration, that pursuant to Sections 1 and 45 of
the Lanham Act, you can't register a mark if it's an illegal
mark, if it breaks the law. That provides another avenue in
terms of that.
In sum, in terms of preserving the status quo, the
concern I have, my client has, that trademark petitioners I
have talked to is the Lanham Act is sacred. It should not
be amended unless there is something significantly wrong
with it. It earlier was talked about the Copyright Act.
The Copyright Act is amended every two years. I mean, there
are 100 different versions of it. If I want to figure out
the links of copyright for one of my client's works, I have
to go to a chart to try to figure it out.
The Lanham Act simply is not amended without
careful study. It is rarely amended, and we would support
that. If it isn't broke, don't fix it, and is it working
now to its current effect? I'm not sure I can answer that.
I went through and tried to find an official Indian tribal
seal that had been registered by someone or incorporated as
part of a mark. I couldn't find one, but is there one? I
can't answer that.
But it appears to me that with the adjustment of
education, of examining terms you're aware of, these are
official Native American tribal seals, and that can be
submitted to the Patent and Trademark Office. That's part
of the education process, and we would submit that's
sufficient.
The concern we've got is that if there's a loose
definition of official insignia--frankly, I don't know what
official insignia means. I went to the dictionary, and I
don't think that provides guidance. I couldn't find it in
the Lanham Act. So the concern I've got if you use the
definition official insignia, you're opening the flood gates
to a whole rash of new litigation, cancellation actions.
What does this mean? No one knows what that means.
So our concern is that doesn't just damage
trademark owners. Clearly, it potentially does, and the
reason for it, sometimes if it damages a trademark owner
that has tried to usurp the rights of a Native American
tribe illegally, that's wrong, clearly, but what's happened
is if you look in the geographic history of the United
States, there are a lot of geographic terms that are the
same as Native American tribes: Iowa, Miami. Nantucket is
a Native American word. So given the geographic history of
our country, for better, for worse, a lot of these
geographic terms have been adopted as part of trademarks.
If I am part of the NBA, and I see Miami Heat,
that is a name referring to the city and geographic location
in southern Miami, not to the Native American Miami tribe.
No ill intent, I don't think, on anyone's behalf in terms of
that, but it exists. If the word alone, Miami, is a
designated definition of official insignia, well, then what
do you do on that? I don't know. What if a Native American-
-say a cultural heritage, a lacrosse stick, for example, is
registered or listed as an official insignia, well, does
that mean that you can't have the sword of lacrosse anymore
unless you have a license from the Native American tribe?
What if you have several Indian tribes incorporate
the same word? The Cherokee tribe, there's several
different branches of that. Does one have to obtain a
license from the other tribe to use that? I don't know the
answer to that, and that seems to me fundamentally troubling
in terms of the definition of an official insignia.
You look puzzled.
COMMISSIONER DICKINSON: Cross-licensing is a
fairly standard practice in your industry. I don't
understand why that is confusing and/or troubling.
MR. HOBBS: The explanation for that is I know how
much effort and time and energy goes into a cross-license,
and it's certainly an ideal situation if you have a cross-
license, but I've had situations where I couldn't cross-
license, and unfortunately we ended up in litigation over
it. So you're right, absolutely.
That's how it could be resolved, but what we would propose
is that if after the testimony, the Patent and Trademark
Office says yes, we are going the recommend that a change is
made, it is not being adequately--American Indian tribal
insignia are not being adequately protected, our proposal is
let's take the foundational, fundamental statutory
guidelines of the act, and let's tweak it, that if you go to
Section 2(b), there is already a protection for states,
United States, and also for municipalities.
Add the words in, and you can determine--I'm,
again, not an expert in terms of Native American law, but
"federally-recognized, state recognized Native American
tribes". There's a body of case law out there that
interprets 2(b), and I know what that means. I know that if
it is merely a name, that's not protected by 2(b). If it is
a lacrosse stick, that's not protected, but if I take that
seal, that's not entitled to registration.
So that would be our submission in terms of what
we would recommend, that if--again, we submit 2(A) is more
than sufficient. 2(d) is more than sufficient with perhaps
some tweaking, but, again, if something is needed, it would
be on that limit basis to prevent the difficulty of defining
official insignia which I have tried to do and I cannot.
Thank you very much for the opportunity to speak.
Do you have any questions?
MS. MARSH: Yes. So you would define insignia as
not including just the tribal names, as sort of other
speakers have advocated?
MR. HOBBS: I would. Again, going back to even
the geographic origins, that if I'm the Miami Heat, and
there's a Miami and Native American tribe, there's no ill
intent. I don't think that people think of a Native
American tribe when they hear Miami Heat. It's a basketball
team located in the City of Miami. I think it presents
difficulties in terms of interpretation. Does it seem to me
that is there an ill intent there? I don't think so.
So yes, I would. The definition we would use is
the same definition that's in 2(b), that it has to be and
rise to the level of a flag, coat of arms--it's a little
antiquated term, but seal, or insignia, and as insignia is
defined in 2(b), not overly--again, it has to fit in, and
then also or a substantial similarity which is also in 2(b),
so again, going back to if there are four arrows in the
quiver versus three, that's not an issue. It is--again,
does it consist or comprise of language? A couple
of other--if I could just address a couple other things that
you all had asked about, it seems to me that--actually, I
think several of your questions have been answered. Any
further questions?
COMMISSIONER DICKINSON: We had taken testimony in
Albuquerque, and one of the larger bodies of testimony was
from the Zia Nation, Zia tribe who uses a symbol. It
doesn't show up very well, but it's been the source of
substantial discussion. It's just this piece here at the
top. I asked them what they regarded as their official
insignia, and they regarded just that sun symbol at the top
as their official insignia. Does that trouble you under
your discussion of what constitutes an official insignia?
MR. HOBBS: Well, the one issue I didn't get to
and didn't address is how do you create a list. If you are
going to go with the 2(b), how do you create a list, and the
difficulty I've got is there's no list as far as I can tell
for municipalities. I mean it would be impossible for every-
-I don't believe there's a state list either. I know there
is one under Article Six, T.R. for applications for
international marks, but there is no list for state
municipalities. So do you create a list or not?
The difficulty I've got is if you create a list,
you've got to have an objection mechanism in it, that if you
look under, you know, under the Paris Convention, there's a
objection under that, that the United States has 12 months
to object to that. To offer and say that unilaterally there
can be a list with no sort of oversight and review, that
seems to me to be problematic.
And so to answer your question in terms of that,
I'm not familiar with the facts in the law in terms of--the
facts primarily in terms of the Zia symbol. Is it, in fact,
that they consider it to be theirs? Absolutely. That's
entitled to consideration. It is also--and going to tests
that are put out in 2(a) and 2(b), so is the primary--is the
primary association with the Zia tribe? If the answer is
yes, I think they're entitled to a registration or on the
list. If it's not, that becomes problematic, but I think
you have to have some sort of test what goes on the list and
what doesn't. It seems to me what's established is 2(a) and
2(b).
MS. MARSH: And under 2(b), any simulation of a
native insignia would be barred?
MR. HOBBS: Absolutely. If you used three prongs
coming off the circle for the Zia logo, absolutely, that is-
-again, if it's a similarity thereof, if it calls to mind
the Zia symbol, absolutely. I mean that should be
prohibited.
COMMISSIONER DICKINSON: My understanding is we
don't reject marks that include the maple leaf alone as an
element. My understanding is that we don't reject marks
that consist of a large red circle. Those could conceivably
be considered the insignia of the flag of a foreign country.
Do you see any inconsistency there?
MR. HOBBS: I think the point is well taken. I
think that, again, going back to the tests for 2(a) and
2(b), that it's got to be the primary association has to be
with the nation, with the institution or the foreign nation,
that if I see a maple leaf, do I think of Log Cabin syrup,
do I think of the Toronto Maple Leafs Hockey Club, do I
think of--I think there is such a blurring of that that I
think that those particular indices you've talked about--
now, if I do a red star in a white field in a designation
that resembles a flag or coat of arms, yeah, then I think
that's very problematic; but if I have a red dot, I mean,
there are a lot of red dot trademarks that are out there.
So, again, I think, again, does it--is the primary impact
that calls to mind the institution, the foreign nation, the
owner of that.
COMMISSIONER DICKINSON: Your client, the Mohawk
Carpet Company, have they ever engaged in discussions along
the lines that we've been discussing here today with the
Mohawk Tribe?
MR. HOBBS: They have not. They have not.
COMMISSIONER DICKINSON: Has the Mohawk Tribe ever
raised a concerns that have been raised through this
testimony both here and other places about your use of that
mark?
MR. HOBBS: They have not. The origin of the
Mohawk Carpet Corporation, again, it goes back to the
geographic issues, that the Mohawk Carpet Corporation in the
1920s was founded in the Mohawk River Valley of New York. I
mean, it's a geographic place. That's where it was founded,
and that was the name that the corporation took.
In the 1940s, when labor was cheaper in Georgia
than it was in New York, they moved down to Georgia, and
they've maintained the same name, and so that's the origin
of it. There are--we've done an investigation of it. There
are a significant number of Mohawk uses. Is it our intent
or our client's intent to call or invoke the Mohawk Indian
tribe? No, absolutely not.
AUDIENCE MEMBER: Can I just ask a question?
MR. HOBBS: Yes.
COMMISSIONER DICKINSON: Well, let's hear the
question. Maybe we'll read it into the record.
AUDIENCE MEMBER: Why does Mohawk use an Indian
emblem to sell its product?
MR. HOBBS: My understanding--
COMMISSIONER DICKINSON: The question was--to
repeat for the record, the question is the speaker's
understanding is that the Mohawk Carpet Company uses a
stylized logo of what appears to be a Native American in
their advertising and as their logo. Why is that if they're
intended to be a geographic designation?
MR. HOBBS: I should have clarified to the extent-
-it is historically a geographic designation, and then part
of it lies in the reason for the selection in terms of the
symbol is that as the Patent and Trademark Office well
knows, there is no protection inherently for a geographic
mark. If it's Mohawk Carpet Corporation, does that come
from Mohawk, New York? That's not going to get a
registration from the beginning.
Additionally, Mohawk Carpet Corporation, the
desire was not to be associated with any geographic area.
So in terms of using it, it's not intended to be affiliated
with the Mohawk Indian tribe. It's a stylized symbol of a
Native American boy, and that's the choice. Is it a seal of
the Mohawk Indian tribe? Absolutely not. Have I inquired,
has there been any questions as to affiliation with the
Mohawk Indian tribe? No, and I checked, and I asked in
terms of that. There is not.
Do you believe the Mohawk Carpet Corporation is
affiliated with the Mohawk Indian tribe?
COMMISSIONER DICKINSON: Well, this isn't intended
as colloquy, I'm afraid.
MR. HOBBS: No, I'm just saying that that--to
answer your question specifically, there are various
historical reasons for it. It is an Indian boy, yes, that's
correct, but it's not intended to be any sort of association
with the Mohawk Indian Native American tribe.
COMMISSIONER DICKINSON: One final question. I
noticed in your testimony you got to the question which I
asked the previous witness which was what to do in the case
of conflicts. Can you give us any guidance along that line?
MR. HOBBS: I'm sorry. Conflicts?
COMMISSIONER DICKINSON: Where more than one tribe
has a similar or maybe identical either name or official
insignia.
MR. HOBBS: I think there are a number of ways of
doing it. You had alluded to cross-license. I think that
also there's a potential for a collective mark perhaps, that
is where no one entity owns it but it's put into use so that
several members could use that.
MS. MARSH: Thank you.
9. GARY BROUSE
MS. MARSH: Our next speaker is Gary Brouse from
the Interfaith Center on Corporate Responsibility.
MR. BROUSE: First of all, thank you for letting
me speak here today, and I represent the Interfaith Center
on Corporate Responsibility. The Interfaith Center of
Corporate Responsibility is an organization of religious
institutional shareholders who have investments in
corporations. They represent the Catholic, the Protestant,
and Jewish institutions. We have probably about a $100
billion worth of investment in Corporate America.
I'm very, very honored that I work with this organization.
They have been going through the last several years learning
about this issue, as the corporations have, and to their
credit, they have taken on this issue as an important
investment issue. One thing they would like to convey to
you is that the religious shareholders not only invest in a
corporation for financial returns but also the social
returns. We feel that it can be very expensive when the
company starts to have to shell out money for discrimination
cases and in cases like this where there has been some
challenges about corporate logos and mascots and stuff like
that.
So we go around to the corporations, and we
discuss the issue with them. We have in the last year met
with about 30 corporations. Some of those corporations have
discontinued their advertising, using any kind of emblems or
symbols such as the Cleveland Indians' Chief Wahoo and the
Atlanta Braves. Anheuser Busch just this year went on 60
Minutes and said they will no longer use the Chief Wahoo
issue because of its controversy and it's mean and demeaning
toward Indian people.
My job at the Interfaith Center is I'm the
director of diversity and indigenous issues. What I do for
the religious organization is review corporations'
performance in the workplace on the corporate boards, making
sure that their boards are diverse. If they're not, we
report back to the investors who have shares in that company
or who are considering investing in that company. We want
to make sure that a corporation is having minorities' and
women's input at the highest levels.
We believe this is one of the problems that
corporations fall into when they have a board or an
executive staff that is not completely diverse, that's not
getting the input from the community who they're serving in
their marketplaces. So we consider this tremendously
important.
One of the things that I would like to say is that
especially with the word "Redskin". We talked, and you
heard about the laws that are in place right now. I don't
know how you could say that--I mean, it took this country
this long to learn what "redskin" means. That's a long
time. Now the educational system has failed us on this.
The legal system has failed us on this, and we need to start
to educate, and that's probably one of the weakest points in
all these laws that we're talking about, is that we really
don't know.
I mean, we're hearing testimony here today that a
lot of people are not aware of why these issues are so
important to the Indian community, and I think one of the
things that the PTO can do is to create a greater resource
for gathering information and having this information
available. Another thing I might suggest is to
diversify a little bit more. You did a great job here today
but also to include Indian people in your employment, in
your consultation and research. That's where a lot of
corporations fail. As we talked about these issues with
corporations, we found when we're addressing just the logo
issue in advertising, we found out they were falling down in
other areas such as their diversity training program toward
Indian people. Maybe they didn't have a large Indian
population in their work force, but they were in some way
connected with the Indian community, whether it was through
their advertising, whether it was through their vendor
programs. There was still some connection. So they had a
tremendous weakness there, and we were helping them to
develop that.
What I have put here together for you--maybe I'll
just allude to one thing. I went to an annual meeting of
American Brands when they were American Brands, and the
issue was board diversity. They had no women on there.
They had no minorities on their board at that time. And as
I looked up to make my presentation about the resolution, a
big emblem came down, the corporate logo, and it was the
head of an Indian in full headdress, and all of a sudden my
comments immediately changed, and what I said was that when
I look up on that stage and what we're asking is the board
to diversify, I only see one minority face up there, and
unfortunately it's a caricature of an Indian person.
And this seems to be epidemic in our society
today, what's happening in corporate America. These logos
are themes. They provide an environment in which they're
trying to communicate to public, to their customers, a
certain idea. Unfortunately, that becomes very derogatory
toward Indian people. When that theme came down, that
Indian head, that said to me that they were somehow
diversified even though realistically it wasn't true.
That's what corporations do when they do their advertising.
It is more likely today that you're going to see a
caricature or a logo or a mascot of an Indian person than
you are going to see a real Indian person. You are not
hearing from the Indian community, and that's what's so
unfortunate. Everything that people know about Indian
people today has been through the educational system,
through the media, through advertising, through Corporate
America, but not directly from Indian people.
And I think one of the things I can say is the
great appreciation I have for you is that there are so many
Indian people here to be able to testify on that behalf and
that opportunity hasn't always been there, and it's
unfortunate that it's taken this long.
One of the--this is more of a picture-type
presentation for you to show you that these images mean
much, much more than what a lot of people are indicating.
It's interesting that a lot of these Indian logos and
mascots started after the second World War when a lot of the
propaganda material that was used against Germans and
Japanese then focused on Indian people, and this gives you
an idea of what some of those images look like.
And it's interesting that while we're not seeing
that they are identical, we are seeing there are
similarities between the Nazi's most famous propaganda
against the Jewish people in the Chief Wahoo logo. There
are similarities there. There are exaggerations. They use
the same methods to communicate the images that you see
here.
When you get to our earlier country in our
history, you look at some of the corporations' logo and
advertising, and you see Nigger Head Brands. I don't see
any difference from that than the Chief Wahoo head that we
see today, and I don't understand why people can't make that
connection. We addressed GTE about their ad,
and not only was the Chief Wahoo on the ad, but the only way
to talk tribe was their pitch on this particular ad which we
thought was culturally offensive. We addressed that
corporation about this issue. We went through these issues.
They will no longer use this advertising. They no longer
use the Chief Wahoo in their advertising. There is
the potential that if some corporations retain these logos,
that if they don't change, there's going to be lawsuits,
there's going to be great financial loss to the shareholders
and it's a concern we have.
This is an ad that was on the back of popcorn,
which you can see--I'll read it. "The original All-American
snack food was discovered of course by the original American
Indians, not the Cleveland Indians, the bow and arrow
Indians. It was highly popularized by western movies in
which the cowboys always got the girl, the land, the ponies,
and all the Indians got was maize. For a complete
satisfaction, the eater should face the happy hunting ground
and mutter an original prayer of thanks to Pohohantas and
Sitting Bull, then buy another bag of exploded maize. To
eat plain ole popcorn would be a failure to recognize our
nation's debt to the Indians and constitute a grossly
unpatriotic act and participate in Indian uprisings."
I put together just samples of some of the
material that we have seen that corporations have put out.
We've written to about 400 corporations about these issues.
This is some of the responses. Sears has indicated their
decisions are made by their customer demands. We were
asking about the sports logos that they sold and their
fabrics and their advertising that they use, and this is
their response to us. They're putting their responsibility
off on someone else here, their customers.
This is a letter from GTE that, as you can see, is
a response to the ad and them changing their methods. Wal-
Mart, here is a response. Now, Wal-Mart has some problems,
not only with the logos of selling them but also in their
work force in which they deal with Indian people. They have
a lot of stores on the reservations, but they employ very
little Indian people. They also violate a lot of sacred
sites among Indian people. This is all the lack of
knowledge and education on their part of knowing what really
is the problem. They failed to meet with us and discuss
these issues.
Another thing Wal-Mart does is they take their
theme into our school systems. They bought a whole marching
band uniform of Indian regalia, including full headdress for
this band, passing on this stereotype, this racism that
exists about Indian people. So these are penetrating.
These corporate logos are penetrating into our school
systems. They use the words like the Washington Redskins
just like everybody else.
Here's another example of some of the ads, Chief
Crunchy which has been seen in a lot of school cafeterias.
The J.C. Penney ad is of Crazy Horse fashions which we've
been having discussions with. I think one of the concerns
here is that the conversations that J.C. Penney and Liz
Claiborne has had has had direct contact with the Crazy
Horse estate and the descendants of Crazy Horse. After
those discussions and the survey that they're about to do,
without telling us, even though we were having these
discussions, had decided now to expand the Crazy Horse
fashions for men.
And then just an example of the Mohawk Carpeting.
The last one is from Phillip Morris, Miller Brewing Company
which is also another company which has stated that they
will no longer use these symbols in their advertising.
I think one of the greatest disappointments is to
see two of your leading heroes, and it's surprising when you
put people in one situation and then sit them in another one
to see how awful it looks to have two African Americans in
front of the Chief Wahoo logo. It really tells a story.
I think that a lot has been said today here about
what the cost is going to be to the corporation if there's
some additional laws around these issues, but I think really
what we should be asking ourselves is the debt that the
American Indian people have had to pay all these years of
not being recognized, and I think it's about time to start
being concerned about their feelings and their concerns and
hearing them out.
One of the reasons why some of these trademarks
are not licensed or are not applied for--you're going to
hear later from an attorney that will give you a better
explanation than I can, but some of it is that there is a
religious belief against doing those kind of things. There
should be something in our laws that our laws would protect
without Indian people having to jeopardize their own
religious beliefs to protect. There's a certain
responsibility I think this government has as a sovereign
nation to a sovereign nation, and maybe we should start to
be looking into those, of ways of how to protect the Indian
people in that respect.
I think one--like I said before was that we need
greater research. I think one of the things you can take
advantage of, the New York State Educational system is
carrying on a research of the issue of Indian logos within
the school systems in the State of New York, and that's
being conducted by the commissioner of education in New York
State, and I don't think that report has been finished yet,
but I recommend that when it is, that you get a copy of that
report for future benefit. I thank you very much.
MS. MARSH: This isn't as much a question as a
comment. I feel compelled to defend the Trademark Office.
We doubled the size of our professional staff in the last
two years because of our increased workload, and I think we
hired an extremely diverse group of people. Debbie and Todd
may know more about that than I do. And the attorney that
we have assigned to the Native American marks has a strong
link to the Native American community. She is actually in
the audience today, Kathy DeYoung.
MR. BROUSE: Hi.
MS. MARSH: Do you have any questions?
COMMISSIONER DICKINSON: Thank you for your
testimony. It's very valuable and I think brings home for
us in many ways how we need to be very scrupulous as we
undertake our 2(a) responsibilities.
I think that the recent decision we had in the
Redskins matter, I think is reflective of I, think, where
the office is at this point in a lot of these issues. So I
think hopefully that decision was one which met with support
in the Native American community and was hopefully one which
the Native American community felt was being heard at the
Patent and Trademark Office.
MR. BROUSE: I would just like to comment on that
because one thing I can say is that, yes, that has gotten
support within the community, but surprisingly it has also
gotten some support from within the corporations, and I can
tell you that to be in contact with persons like Francine
Katz at Anheuser Busch and Tre Parris at Coca Cola, because
one of the things that they said that was very helpful to
them, it relieved them. They then had something to go to
the rest of the company, to their marketing people, and
said, you know, we should be doing this.
There's been turmoil within the corporations about
what they should be doing, and they're always fighting with
their marketing people, and they're always looking for
information to benefit in the argument. They understand it
here, but intellectually, you know, putting that information
out.
So when PTO came out with that decision, it really
lifted a great burden within a lot of the corporations and
instantly made changes within their policies, almost
immediately within those companies, and as far as the
comment about diversity is, I was complimenting, and this is
something I do at every corporation. We don't have American
Indians sitting on corporate boards, and we need to have
more input from the Indian community on that.
I think one of the things that I might point out
is the past history here is that what's so discouraging
within the community is that you had a presidential
commission on race which had no Indian representation on
that. You had a glass ceiling commission with 21
commissioners looking into the glass ceiling in Corporate
America, no one from the Indian community out of 21
commissions. There was never in the past been an Indian
person who has sat on the commission for civil rights.
You see all these national debates going on about
affirmative action that's going on in this country. You
don't see representatives from the Indian country coming in
there and participating. You don't know what the impact is
going to be on these decisions. So we're looking at the
whole national picture here, and there's just no input. And
this is one of the bright points for the Indian community to
see, that there is a government agency actually doing
something that seems to be benefitting the Indian people.
So I just want to make sure that you understand
that that is a compliment, and we are grateful for that.
Thank you.
10. MICHAEL HAINE
MS. MARSH: Our next speaker is Michael Haine.
MR. HAINE: Good morning. My name is Michael
Haine, and I am the director of the National Coalition on
Racism in Sports and Media. We are a coalition of 48
different national human and civil rights organizations,
advocacy groups, ranging all the way from the National
Congress of American Indians to the Nation of Islam, NAACP,
the Urban League, and sort of an array of who's who in the
area of human rights, and we've been--we were formed in 1992
just for the purpose of protecting our images.
I'm also a Seminole. I'm half Sioux and half
Seminole, but I'm a vice chairman of my nation, Seminole
nation, and so I'm half Sioux and half Seminole. I've got a
little bit of white blood in me too, but I can't prove it.
I know that's a big deal here in Washington, but I'm very
happy to be here.
I represent a lot of tribal governments in
Oklahoma, and our Indian nations in Oklahoma consist of 39
federally-recognized tribes in the State of Oklahoma. We
range all the way from Comanches, some from New York,
Delaware, some Pennsylvania and around here to from
California, and it seems that a lot of the tribal
governments that declared war against the United States
ended up in Oklahoma like one big concentration camp.
When they moved my people and the five tribes, what they
call the five civilized tribes from the southeastern part of
the United States, into what's now Oklahoma, what they call
under the Removal Act, and that brings me to my first point,
is that as tribal governments, we're really concerned about
the impact of images on our youth. As a grandparent, as an
elected leader, as a community leader, and as an educator,
I'm concerned about the use of your images in colleges,
universities, institutions of higher education, and in our
secondary and elementary schools throughout the nation.
And just as I'd heard that why have you Indians
waited so long to come and object--I hear that all the time.
Why did you wait so long? Like the Cleveland baseball team,
they tell us that or the Atlanta baseball team. How come
you guys waited until we were winning to come out here and
protest, you know, and as it's just recently we've gained
some political power. It's just recently that the president
has signed into executive order a law mandating a government-
to-government relationship. To me that would help you
clarify your insignias, you know, your seals, because that
is a law now.
There's an executive order that we should be
treated as a government, and that brings me to the Mohawk
Carpet issue. Maybe the University of Illinois, the Florida
State appropriating tribal names. We have treaties with the
federal government that predates any of these guys, any of
these corporations, legal binding documents. There was no
other Mohawks around when those treaties were signed. There
was no other Seminoles around when that--when these things
were signed, way before Florida State University.
I want to tell your a problem I have with that
group down there. You know, I'm a Seminole Indian. We have
beautiful--have you seen the patchwork jackets Seminoles
have? They're indigenous and unique just to my people. We
had a woman that was at Florida State University in the
plaza right there selling chances on a jacket. She had the
word Seminole on the back, and that goes to the arts and
crafts. I'm glad someone brought up the arts and crafts
bill. It's related.
And she was escorted off the university grounds
because the word Seminole, the university security said that
violated their patent, Florida State University's patent on
the word Seminole. My tribe. I'm a Seminole, not them, and
they escorted one of my elders off very unceremoniously,
very disrespectfully because they have a patent and that's
wrong. That's wrong that they could do that to my people.
That's wrong that they could appropriate my name or regalia.
And their band outfit has patchwork now, their
band, and to me that's an appropriation of our traditional
cultural properties, national cultural properties that we've-
-that's included in our religious freedom protections,
including in what they call Naive American Grant Protection
and Appropriation Act included in the National Historic
Preservation Act.
Those are related in the fiduciary responsibility
of this government's trust responsibility to my people as
indicated by those legal and political documents you would
call treaties. They are still enforceable documents. The
Supreme Court continually reaffirms that concept, and I
don't like it that we have to go to--I've been arrested 43
times in exercising our First Amendment right to protest
against the use of our names and images.
When the Cleveland baseball team played the
Atlanta Braves down in Atlanta, to me that was a largest
exhibition of cultural cross-dressing in this nation's
history, and the other thing, all the people walked around
in makeup, their mother's makeup and dyed chicken feathers
and dyed turkey feathers on their head, and, you know, I can
tell you that bothers me.
I'm a veteran. I don't know how many of you are
veterans. I know a few are, but I know that the Vietnam
veterans, anyone that had an uncle, a brother, or a father,
or a relative in the Vietnam War knows the color red and
yellow and green denotes honorable service, honorable
service to your people in your country, and I have the right
to wear paint because of my service. I have a right to wear
black paint and yellow because of my service, and it bothers
me when I see mascots and cheerleaders bouncing around the
University of Illinois football field in their mother's
makeup, reds and yellows. That violates--I don't know how
you put it in your language, but that violates to me the way
that I worship.
We're very highly symbolic people, and in a lot of
our regalia you'll see the four colors of mankind, red,
yellow, black and white. In a lot of symbols, you'll see
circles. You'll see different colors that have very
important meaning to us. It's all lost at 70,000 screaming
fans at R.F.K. Stadium over here or at the Florida State
University or the University of Illinois stadium. They
appropriate our ideas our images without the proper respect
and it's damaging to me.
I walk along Washington here, and people are
scared of me. I was over at the museum recently, over at
the national museum. What do you call it? The Natural
History. I was waiting to go upstairs to the third floor
where all the Indians are. You know, they put us in Natural
History with all the stuffed, you know, dinosaurs and
stuffed bears. You know, they don't put us in American
history. You know, I kind of like that in some ways. In
some ways it's kind of racist, I think, you know, and in
some ways we're natural.
You know, if we ever build a museum to your
society, we'll have to call it the American Museum of
Unnatural History, I guess, put a few stuffed psychiatrists
in there maybe, a beer can, a tractor, and some Pampers, but
that's all the same thing.
To me a lot of these issues have a common thread
of racism whether it's access to educational opportunities,
job training opportunities. There's racism, and it's
contributed by the phenomenal impact of the sporting
industry on our people. There are people getting killed for
Starter jackets that had Florida State University on it,
$150, $200 Starter jackets. They get killed for that. I
don't know how many parents we have here, but I'm getting
tired of taking out loans every time my kids go to school to
pay for those $150 tennis shoes and all those regalia they
have associated with sports, associated with sports.
And mainstream America, they won't ever hear from
us like this, sitting down and talking like we're doing now,
asking me questions, why do you feel that way, why does it
bother you. They draw conclusions about what they see on
television, about what you read in the newspapers. Our
media and journalists have a phenomenal responsibility
because what they print, like when Washington wins, they
just can't beat Dallas. They've got to massacre them;
right?
They don't have ceremonial headdresses like we
have. Every eagle feather is earned, an act of generosity,
an act of compassion, an act of love. So an eagle feather
headdress, what they call a ceremonial head dress is a whole
life of servitude toward our people, and when we see them
down there with the dyed chicken feathers, when we see
Osciola come out in Florida State, when we see them come out
in the University of the Illinois, that demeans not only us
but has impact on your people, and you because people, when
they turn on their TV and cable, which is all of our people
these days, you know, is we see the crowd, and we see a
whole bunch of fans with their makeup on. The little
ones think, well, all Indians must, you know, do the
tomahawk chop which kind of simulates scalping, all Indians
still kind of dress that way and have war paint instead of,
you know, ceremonial markings. We have war bonnets instead
of ceremonial headdress. We have war drums instead of
ceremonial drums. That creates a hostility towards my
people. Yes, that creates a lens by which people see us and
judge us by.
So your issues of the patent, and we're going
after--our group is going after the Kansas City Chiefs.
We're going after the Atlanta Braves, and it bothers me
because Time Warner owns the Atlanta Braves, and we're going
to go meet with them. They're sending out not their CEOs or
decision makers. They're going to send out Hank Aaron, an
African American who is one of my heroes, you know, like the
Indians against Indians, you know, and it bothers me that
they're not taking us seriously that way. How come it has
to be Indians? Like, they've been here like 500 years now;
right? They've been here in our country, and it seems like
out of 500 years of existence, you can find one white boy
that you're proud of to be brave and put him down here as a
mascot for a Atlanta Braves, not the Indians, but the fact
is--
And we did a study California. We asked when you
think of warriors and braves, what do you think of. They
don't think of white people. They think of Indians, and
that's the most recognizable response, and that's why they
name their teams after that, because we'd rather died
guarding this goal line rather than just submit to injustice
or to ridicule or to live a disparaging life. We'd rather
die than live that way, and that's somehow--the institutions
of education, the sporting industry has turned that around,
you know, to honor us in one way.
I would like to--and I came down here with one
specific purpose, the University of Illinois, which I
understand is going to be speaking here later. You recently
issued a patent protecting them, and I have to tell you we
highly object to that, the tribes that I represent. When I
went back to Oklahoma, we were the first coalition of tribal
governments to go on record opposing the use of images,
intellectual property rights. We named the Washington
Redskins, the University of Illinois, Florida State, and,
you know, Winnebago pickups, even the Redskin chewing
tobacco.
And I went further from there to the National
Congress of American Indians. We're the largest coalition
of federally-recognized tribes in elected governments. I
went to the National Indian Education Association. I went
to the National Education Association. I went to the
National Counsel of Churches. I went to the World Council
of Churches. We all got resolutions unanimously asking
everyone to abandon the use of Indian characters, logos,
mascots, and symbols.
And finally, we'd like to ask you for your help
for this and the developing of a mechanism to review this.
You know, I would simply point to the executive order that
demands and mandates consultation whenever you have or do an
exercise that impacts our tribal governments. I would ask
that Florida State University, I would like to formally
object to your issuance of a patent to that, you know. And
what is strange about these schools, the University of North
Dakota, the University of Illinois, Florida State
University, San Diego State University, University of Utah,
not one of them has a Native American studies program, yet
they said that want to honor us. If you want to honor us
and show represent to us, develop a mechanism of
understanding, teach your students about us, not just
confine us to the playing floor that we're just
entertainment for your fans, which I suspect they're flat
lying to me.
They look me in the eye and say we don't mean to
hurt you. We don't mean to be offensive to you, thus we're
not going to stop. I addressed the board of regents of the
University of Illinois. I asked them. I said that in view
of the Redskins decision, cancellation, I'd like to talk to
you about your continued use of Indian symbols, the illusion
that you're working cooperatively with tribal governments to
represent these things. They wrote back and said since we
feel that it's not disparaging to you, we decline to meet
with you, and I had that letter from the board of regents.
So we're not--we're trying to work with you. We're just
learning the process. We're kind of infants in some ways in
protecting our culture, and one of the things that we're
running into is this idea of that we've always done it to
you guys, and you've never said anything before, and now,
you know, you're kind of waking up now. You're causing us
to--you're confronting us about these issues, and they're
having a little problem dealing with that.
And what I'd like to ask is that you have better
consultations with the tribe. I don't consider this
consultation, you guys. A consultation would be come to our
meetings, have a presentation to our tribal governments, to
our attorney generals, talk to them about their process.
The man here representing Mohawk Carpets doesn't have to
turn around and give us a little lesson in the process.
We'd like for you to come to our organizations.
We meet quite a bit. We'd like to extend an invitation.
We're going to meet next--actually, I think next week in Van
Couver, but we have an annual conference in--I think this
year it's going to be in Palm Springs in November, and I'm
sure that we'd like to hear from--as tribal leaders, we'd
like to hear how we do protect our images and symbols
because, you know, I can tell you we're just now getting in
the position to do that, and we'd like for you to seriously
consider looking at traditional cultural properties and
national cultural properties as symbols and religious
symbols because there is--when you have eagle feathers and
some of our regalia, those are religious connotations that
we think should be protected, and we think you should look
closely at going over this line between enterprise and
infringement and not just exercises.
And I'd like to ask your help, finally, in calling
off what I consider the longest war in history, and that's
the war against American Indians right here in our own
homeland because we know that the propaganda is very
damaging. I'm a veteran, and I saw where right after World
War II when they had the war crimes and where all those
concentration camp guys responsible for the millions of
executions and murders, holocaust. They were tried,
convicted, and cremated and their ashes thrown to the four
winds, symbolically, never again to bother this earth again.
I think there was one person that was tried and
convicted, and he too was cremated, and his body was just
spent like that. He never killed one person. He never
turned in a group of people. He was never responsible for
that. His lone crime was he published--he was a newspaper
publisher, and he published unsavory articles and other
characters of Jewish people with big noses so that when they
came in and started grabbing people, the people were
conditioned to accept it. They said that they deserved it
anyway, look at how they act, look at their behavior, look
at the way they look, their features and so forth.
He was executed for what he did because that was a
designed impact of propaganda, an administrator of
propaganda, and what happens at the Washington Post is no
different than what happened with his newspaper when you
talk about the Redskins, Red Niggers we call it, Red Sambos.
So I want you to understand the impact of what
happens when you issue a trademark and patent protection.
You know, we can't protect--we can't attack the first
amendment. They call us names all the time. For 500 years
we can't stop them, but at least we can appeal to your sense
of fair play about protecting the federal protections
against theme racist logos, symbols and caricatures.
I thank you very much.
COMMISSIONER DICKINSON: We're honored to have you
here today, and I appreciate the testimony. It's very, very
valuable. We'll give it thorough consideration.
11. THOMAS BROOKS
MS. MARSH: Thomas Brooks from Gadsby and Hannah
is our next speaker.
MR. BROOKS: Thank you. My name is Tom Brooks.
I'm with the law firm of Gadsby and Hannah here in town, in
Washington, and I'm here as a volunteer on behalf of the
International Trademark Association. As I'm sure you know,
we're a 121-year-old worldwide association representing over
3,700 companies, law firms, professional associations in
over 120 countries.
INTA, of course, is devoted to protecting and
promoting the role that trademarks play in fostering fair
and robust competition, and I want to focus today on the
problem of official insignia and not caricatures or satires
or parodies or any of the other things that some of the
previous speakers have mentioned. The issue I believe
before this is what to do about protecting official
insignias of tribes, of Native American tribes. INTA
opposes any proposal to grant sort of special trademark
status for any group, including the insignia of Native
American tribes. The association adopted a resolution in
1991 officially, in principle opposing any sort of what we
call special interest trademark legislation to provide
specific groups with any sort of exclusive rights or
heightened rights without proof of likelihood of confusion,
and we've taken this position consistently in every country
where it's come up.
It's come up in Canada where the trademarks act
there granted special protection to the universities and
public authorities, and we've expressed concern over
proposed legislation in New Zealand that would grant
protection, extra protection, special protection beyond what
anybody else would have for New Zealand's indigenous people.
This sort of per se prohibition against registration or use
of marks that are identical to the official insignia of
Native American tribes would be unnecessary, unduly
burdensome, and inappropriate for many reasons, and we'd
like to highlight some of our concerns.
One of them, and I think I overheard--I came in
near the end of this discussion--that the commissioner was
showing the Zia symbol. It's hard to define with any
specificity what the official tribal insignia is going to
be, and it's going to be difficult to establish the
mechanism to prevent potential abuse, and I don't mean abuse
by the tribes. I don't think that's the problem.
We're concerned over the establishment of the data
base here, and I guess some of the questions are who--would
there be a limit on the number of official insignia any
tribe could designate? Who would make the determination
whether an insignia, the official symbol was actually
official? And I did hear this. What about the problem
where more than one tribe finds the same symbol to be their
official insignia? Could two or more tribes designate the
same thing. There, of course, have been many
disputes between tribes in various parts of the country.
The Hopi and the Navaho come to mind in Arizona. They have
several sacred pieces of land they dispute, and it's a very
difficult problem and one that I certainly don't have the
answer to. It will be difficult to make the determination,
of course, as to when somebody who applies for trademark has
come up with something that's identical to an official
tribal symbol, especially if the symbols are somewhat
indefinite, and, of course, the standard could be identical.
It could be similar. At what point is it too similar?
The example of the Zia symbol, if you have three lines
radiating off in a place instead of two, is that close
enough, or where do you make the--where do you draw the
line? How precisely defined must each official insignia be?
For instance, representations of animals or birds or bodies
of water, mountains, the sun, stars, may be official
insignias and very important to many tribes, but which
representations will be protected?
For instance, on the eagle, will it be enough for
a tribe to say the eagle is our symbol and no one else may
use the eagle, or will they have to say, well, the eagle
must be brown with white with this side of coloring, and it
has to be flying or at rest. That sort of thing would have
to be nailed down.
Businesses and individuals that wish to adopt a
new mark would be faced with the burden of checking the list
of official insignia with the selection of each and every
new mark. Since, unlike with the normal process of regular
trademarks or service marks, there would be no way to narrow
the focus to a particular class of goods or services. If
I'm advising a client who wants to file a trademark for
clothing, we look at clothing and related services. We
don't necessarily look at electronic software or at banking
services.
Such a prohibition could lead to a de facto bar
against use of many common geometric shapes since, as was
mentioned earlier, the circle is very important and sacred
to a number of tribes. We have to be careful because, of
course, the circle is extremely commonly used by many
different groups, many different businesses and individuals
as a trademark or a service mark, and this is true also for
depictions of animals, representation of nature, bodies of
water. These are all things that could be potentially
identical to official insignia.
There are over 550 federally-recognized tribes, an
untold number of state-recognized tribes. Even with a limit
on the number of symbols that any individual tribe could
claim, the potential for cutting off representations of a
number of representations is huge, symbols, shapes, and the
animals and symbols from nature.
This prohibition also could create a heavy burden
for the examining corps here at the Trademark Office by
requiring comparisons of all applications for design marks
to a list of perhaps thousands of official tribal insignias,
and comparisons between design marks are already difficult
enough and quite subjective at this point. Some of the
things that go through are surprising. Some of the things
that get blocked by the examining corps are always
surprising, and this would also--would inevitably arise to
whether or not something was actually identical or
sufficiently similar, and we'd probably end up with a lot of
oppositions and cancellations and litigation.
The problem of comparing design marks to official
insignia makes the word-picture equivalents doctrine even
worse. We would require the examiners to know the meaning
of every single symbol. If this geometric shape means
something to a group, then under the word-picture doctrine,
the words that meant the same thing could potentially be
blocked because the symbol already means that and blocks use
or registration.
It's also--this type of prohibition on symbols on
official insignia is potentially a violation of U.S. treaty
obligations under the Paris Convention. The relevant
sections are found under Section B of Article 6quinquies
which states that marks registered in one member state may
not be denied registration in another member state unless
certain conditions are met.
It's also possible for--well, in this case it's
possible that a foreign applicant could challenge a
rejection by the U.S. Patent and Trademark Office of a mark
that was identical of an official tribal insignia by arguing
that use or registration of the mark in question does not
violate the type of rights the Paris Convention seeks to
protect.
And, of course, many mark owners in the United
States have used symbols for years that may be identical to
official tribal insignia, and I'm not talking again about
caricatures, but official tribal insignia without having any
idea that they were doing such a thing. What about the
symbols now claimed as official insignia that native
American tribes have used or are using for commercial
purposes themselves, marketing everything from food to
closing to crafted goods? If they're using these marks
commercially, what kind of problems would that lead to?
This prohibition and this type of prohibition
could also lead to more and more groups seeking special
protection and lead to accusations of discrimination by any
group that does not receive protection under such a
prohibition, and this could be anywhere from a Native
American tribe whose symbol is not considered official and
doesn't get their symbol on the list to an unrecognized
group to groups other than Native Americans.
There are, of course, plenty of ethnic groups from
all origin in this country, and everybody from England to
other parts of Europe to Africa to Asia have sacred symbols
and cultural identities that have various connotations that
may deem special protection. Who decides which groups are
worthy, and if protection is denied, would failure to
protect, provide equal protection constitute discrimination?
Section 2(b), which is what we've been talking
about here, of the Trademark Act, prohibits registration of
any mark that consists of our comprises the flag or coat of
arms or other insignia of the United States or of any state
of municipality or of any foreign nation or of any
simulation thereof. The proposal to equate Native American
symbols with the flags and the insignia of the United States
and other nations may have unintended consequences. It's
true that no one may register or appropriate for their own
private use the American flag or other U.S. insignia, but
it's a fact that the American flag is used widely, and U.S.
insignia is used widely for advertising or promotional
purposes.
I think we've all seen restaurants, the Perkins
Restaurant chain with the big American flag out front. If
you go just south on I-95, just south of the Beltway,
there's at least one car dealer which uses a huge American
flag out front as a way to attract business. Every time
there's a patriotic holiday from July 4th to President's Day
to Memorial Day you see ads in the newspapers with bunting,
with American flags used all over the place. It is
ubiquitous and used all the time for commercial purposes as
are other American symbols, and so are a symbols and the
flags of other countries.
French restaurants often have French flags out
front and other French official insignia out front. Italian
restaurants, Irish pubs, just to name a few. The list goes
on. The putting of the Native American official insignia,
equating official insignia with the flag, could have exactly
the wrong result. You'd end up with everybody being free to
use the official insignia in the same way the American flag
is used for just about everything, and I don't think that's
what we have in mind.
Relief is available for Native Americans under the
current statute, and they've used it successfully in the
Redskins case, and it's under, of course, Section 2(a) as
has been discussed earlier. If a registration of a mark
would be immoral, scandalous, or disparaging, 2(a) is the
appropriate section of the current statute, and it's been
the avenue of successful use and being used now, as the last
speaker mentioned, in a number of other cases.
Registration of marks have been denied in a number
of cases on religious grounds, other than just in the case
of Native American symbols. These cases, I believe, we
believe, form the appropriate body of law on which to base
the opposition of cancellation and to study this issue.
Blanket protection for the official insignia for all
federally and state-recognized Native American tribes would
inflict serious harm on trademark owners, especially if
protection is granted retrospectively. A retrospective law
could raise serious constitutional takings issues which must
be taken into account in any study.
Unless use of a mark is likely to cause confusion
or association, as a couple of speakers ago I believe
mentioned, as to source, sponsorship, or affiliation, or as
immoral, scandalous, or disparaging, the standards which
already may afford Native American tribes ample
opportunities to defend their rights, no additional
prohibitions or restrictions are needed. INTA believes that
allowing any group to block use of a design or a symbol as a
mark simply because the mark may have strong cultural
historical significance to that group will set a dangerous
precedent.
MS. MARSH: Thank you.
MS MELTZER: Thank you. In a portion of your
testimony, you referred to possible implications for the
United States international obligations. Using an example,
we provide broad statutory protection to marks such as the
Boy Scouts and the Red Cross. In your experience, what
objections, if any, have been raised by the international
community to this type of specialized broad protection?
MR. BROOKS: I'm not specifically familiar with
those. There have been problems with some of the Olympic
marks in the past where some of the rights claimed to have
been extremely broad, and usually these things are
negotiated out. I'm not aware of any actual litigation on
any of those that have gone all the way to a decision,
because the litigants just decide it's not worth the money;
but in a number of cases, the Olympics have managed--the
United States Olympic Committee has managed to stop or make
agreements with people in fields completely unrelated to
sporting goods or to sports promotion or to sporting events
because of their special statute.
MS. MELTZER: Just to follow up, if that's the
case, if the USOC has been able to stop people unrelated
maybe to a core business, has that raised any objection in
the international community?
MR. BROOKS: I'm not aware specifically of any.
That doesn't mean that it hasn't happened.
MS. MARSH: Thank you.
MR. BROOKS: Thank you.
12. ROBERT GOFF
MS. MARSH: Our next speaker is Mr. Robert Goff
who represents the Crazy Horse estate.
MR. GOFF: Thank you. Good morning. I appreciate
the opportunity to be able to make a few comments here this
morning. I would like to reserve an opportunity to provide
you with a written, set of written comments as well after
the close of the hearing today.
My name is Robert Goff. I am the attorney for the
estate of Crazy Horse, the famed Lokota leader who protected
his people and their cultural ways in the last century, gave
his life doing that. I am the attorney for the estate
because the estate, the family of Crazy Horse, the
descendant family who still reside the reservations in South
Dakota on the Rosebud Sioux Reservation, the Cheyenne River
Reservation, and the Pine Ridge Reservation were extremely
concerned and outraged by the use of his name on a malt
liquor product. There were a couple of references
made to the cases and this whole issue here, and I will just
make a couple of comments about this and go on to more
general comments with regard to some of the problems with
protections of this sort of thing under existing law.
The primary problem, and this case heads this up,
is that the exploitation of Indian names, Indian imagery,
and the like is presumed natural under our laws. As Michael
Haine said suggested, talking about the Museum of Natural
History, finding Indians in there with the lions and tigers
and bears and dinosaurs and the like, Indians are seen as
part of the natural world of this continent, part of the
natural environment. As such, they are seen to be part of
the public domain, part of the natural resources of this
continent to be drawn upon for exploitation and use in
economic commerce and trade.
The use of the name Crazy Horse rarely passes--the
name rarely passes the lips of family members in South
Dakota on the reservations. The name is held in such high
regard that the closest relatives hesitate to utter the
words. That's how powerful the act of speaking a word is,
much less writing it down. They've learned a lot of about
writing down things. The treaty history that the Lokota and
other nations have gone through have taught them great
lessons about the power of the written world and what it can
take away, what promises it can make and what it can take
away. The concern about violating the
spirit of those who have gone on before and particularly
those who are most powerful, very powerful, is still held.
I'll give you a quote. "A human being's name is a principle
component of his person, perhaps a piece of his soul." Now,
this wasn't a Lokota who said this. This was someone
respected in the U.S. Sigmond Freud said this in trying to
understand human psychology. So it's not a foreign concept
to understand that one's name can be held sacred.
The family hesitates to use it, hesitates to utter
it, and in fact has lived for the last 120-plus years since
his death in not associated themselves with him out of his
request. He was murdered. He told his family don't talk
about me to the whites out of fear of what could happen to
them, and they've honored that, and there have been
occasional uses of the name Crazy Horse, and in the course
of the malt liquor controversy, we've learned that there are
a number of uses far and wide internationally.
Bars in Paris, we heard about bars in Georgetown
and Anchorage, Alaska. These aren't places normally
frequented by people who live--and you saw in the TV news
last week what the conditions are at Pine Ridge. These
aren't people who are frequenting these areas to know about
this kind of usage, but the kind of usage that is on the
malt liquor came to the attention of the families; and one
of the family members had to break this code of silence, and
he went and asked permission of his larger--his family,
could I--let me step out of this silence, let me be
recognized as someone who is related to Crazy Horse and use
his name and they agreed.
So an estate, a probate action was taken so that
one person, administrator of that state would have legal
authority to deal in the Non-Indian system to try to protect
that name. That was a big action in and of itself. That
was a major violation of Mr. Big Crow. Seth H. Big Crow,
who is the administrator, said I can never go home again.
He can go back to South Dakota, but he cannot enter that
circle of having respected that silence, and that he will
carry the rest of his life, but he's done that.
I mention that when people say that it doesn't
cost you a dime to defend a name, it may cost you your
honor. It may cost you your life. It may cost you your
relations, your normal relationships to be able to do that.
It costs a lot, and we're not even talking about financial
costs, which to file lawsuits, to defend lawsuits, to defend
on appeals, right up to line costs thousands and thousands
and thousands of dollars. So I take great exception to the
fact that there may be a public institution that it would
not cost us a dime to have a decision come from, but it
costs quite a bit.
I would like to take this opportunity right now to
express the gratitude and the thanks of the Lokota people,
the reservations I've mentioned, and elsewhere who have sent
letters, who have objected to the use of the name to this
office, to the Patent and Trademark Office, particularly in
the malt liquor case and were successful in having not one,
but two decisions, because two applications for the use of
the Crazy Horse on a malt liquor were filed here with this
office and were rejected, once rejected for disparagement
and the fact that there was a particular law on the books.
That law was later overturned under Constitutional
commercial speech rights, but then a second decision came
out here after a second application came in, and that second
application in even stronger words appreciated the concerns
of the Lokota people on this particular point, and we thank
you for that.
I thank you on behalf of the Lokota people for
that, but that was quite a struggle to bring all of that
about, and it still raises the problem. People ask us,
well, why don't you just copyright the name? Why don't you
just trademark the name and then you'll have the
protections, you'll be able to use it exclusively? Well,
perhaps if we were going into the carpet business or some
localized business.
Maybe we should put out iced tea with that name.
The company that makes the Crazy Horse malt liquor makes a
product called Arizona Iced Tea. The fact that it comes
from Brooklyn, New York doesn't seem to bother those
concerned of geographic origins, however I'm sure if we came
out with a product that was called Crazy Horse iced tea, we
would have--I know it. We would have lawsuits filed against
us by the makers of the malt liquor saying that we are
infringing upon their use of the name, and they may not have
trademark registration, but they have common law trademark
protections, and I would like to have the financial
equivalent of the dime it would cost us to battle those
kinds of suits.
One of the problems with the trademark law and one
of the problems that we have in this particular case, since
it's real person and a real name belonging to a real person,
is that we could use it. We could get a mark, but what if
we choose not the use it, which is what the family has
chosen? They've chosen not to use it. They won't say it.
They're not likely to go out and use it in trade. This is a
fundamental value for the family, not that we may not have
to do that in order to protect it. The whole family may
have to break that 100-year tradition and do something that
would be recognized under Anglo law, the larger Anglo law,
not just trademark protection, but the larger Anglo-Saxon
law. These are the concerns that we have.
The names of normal people aren't protected under
trademark, first of all. Your names aren't protected. Only
if you use it in trades and it's connected with a product
and it's a secondary kind of protection. If you want to not
use it, the law seems to favor anyone else using it, and
then they get exclusive use of it within the area that they
use it. These are some of the concerns.
I have a few comments I would like to finish with
regard to comments that were made here. There was just in
the malt liquor category, for example, Powermaster beer was
the original name for the malt liquor that was produced by
Heileman, sold under--later sold under Crazy Horse. That
name was rejected because the black community saw that the
advertisements associated with Powermaster were making
associations that didn't go necessarily to the black
community but went to the fortification of alcohol, and that
was rejected by the Alcohol, Tobacco, and Firearms. They
could not get a certificate of label approval for that. The
government rejected that.
The company came back with Black Sunday. That was
rejected because of the associations perhaps to the book or
the film or to black in the word or the malt liquor market
being largely black and Hispanic. The name was changed to
Crazy Horse. That was approved by the Bureau of Alcohol,
Tobacco and Firearms because there seemed to be nothing
wrong with that name, which was the reason we ultimately
came to the Patent and Trademark Office because that's where
the fight moved.
The uses of other Indian names and imagery on
packaging not only occurs in the United States but
internationally. We were confronted with a photograph of a
Rosebud Sioux named Full Bull, and these were put on a
Swedish package of potato chips called Full Bull Chips. We
don't know whether the Swedish company realized Full Bull
stands for--it's buffalo, male buffalo, and what they were
selling were buffalo chips, and I'm sure that if people
realized what the packaging really meant, they may have
moved on to other products.
The issue came up with regard to registration.
All the tribes have to do are register, register this,
register that. I would submit that the United States
Government and the Indian tribes that it has federally-
recognized relations with through treaties and other
statutes, we have prior registration. Go to the date of the
treaty. If you see that the tribe has signed its name on a
document with the federal government, they are now
registered by that date, and if Mohawk Carpet comes in
later, we need to understand that they are a later
registrant and have been trespassing perhaps on a name,
especially if they're coupling it with an image of an
Indian. If they're taking it just from the valley, let's
see pictures of the valley. Let's see pictures of trees.
Let's see pictures of rivers. If they're associated it with
Indians, let's see back rent. Let's see the financial
compensation for having trespassed on an image and a name
associated with the tribe that was registered since the
1700s, since the beginning of this country.
The concerns we have with regard to trademarks do
not stop here. They don't stop in the United States. As I
said, there's products overseas. The United States,
however, is in a very critical position in many ways and in
one particular way. What you do at the Patent and Trademark
Office is likely to be the model for how domain names will
be set up or the internet for worldwide commerce and the
organizations. ICAN and other groups will be looking to
what you do as the reference point. They will be looking to
what is protected and what is not, and they will be
basically reflecting what you do on to the rest of the world
into cyberspace where commerce that we've seen here in the
advertisements that have been talked about will be
insignificant compared to the international commerce that is
projected for that whole arena, and the exclusive use by
corporations that take these names and use them will be
depriving tribes of their property rights in the
international cyber domain of commerce as well. So you've
got that extra burden of responsibility to realize people
are looking at you and taking that model worldwide into
cyberspace.
When I mention the registration of tribes in prior
registration and the fact that names are not protected,
strictly personal names are not protected under the
trademark law, and if you don't use them in trade, you have
very little protection within that scheme of the law. The
fact of the matter is not only are tribal names registered
with the federal government, but we have a Bureau of Indian
Affairs that has the name of every enrolled member of any of
those American Indian tribes. No other ethic group in this
country has their own bureau in the United States government
with all of those names on file. If you need to cite to
names and have any concerns about it, you could cite to
those names, and at least for the first round of
consideration, that would need to be reviewed.
I would like to say that my appearance here today
is not part of a consultation process, and we would
certainly welcome consultation with the tribes that is part
of your trust responsibility to the Indian tribes and the
protection of their rights and their property. You, the
United States Government, have a prior duty to American
Indians to protect their rights and their property. You get
that through the commerce clause of the Constitution. So
you've got two of the highest orders of authority, treaties
and the Constitution that direct you to protect us first.
I will leave you with an image that came in
cartoon form several years ago, an old Indian man sitting in
a barren area, nothing but mountains in the far horizon, and
he said: "First they came and took the beaver, and then
they came and took the trees, and then they came and took
the water--this is in an era when mineral development and
exploration was coming back to the United States--he says"
"And they left us here with only rocks, and now they're
coming for the rocks."
And you know, that was 20 years ago. Fifteen
years ago, the effort in this country was realizing so much
garbage, so much waste. The federal government regulates
it. The states regulate it. We'll bury it on reservations,
and there was a land rush for waste deposits on
reservations. I can see that same Indian man sitting there.
He said: "They came for the rocks, and they left us with
nothing but holes in the ground, and now they're coming for
the holes in the ground. It's a good thing I didn't give
them my name."
Thank you.
13. E. LEONARD RUBIN
MS. MARSH: We have one more speaker, Leonard
Rubin from the University of Illinois.
MR. RUBIN: First, thank you for allowing me to
appear today to give my comments. Secondly, what I'd like
to do is give you a better copy of our written remarks than
I transmitted by e-mail late last night; and thirdly, wow.
I came late, but I've heard a lot of testimony as have you.
I am not here for rebuttal of that testimony necessarily,
unless you would like to hear some. But my
impression of the reasons for these hearings is not
necessarily to review all of the transgressions that have
occurred in connection with the maltreatment of Native
American peoples over the years. I do not mean, by that
remark, to say that I am indifferent to them. I am highly
sympathetic to them, but I thought we were here to talk
about trademark law, about trademark regulations and not
about general injustice, and I believe that those
discussions involve broader Constitutional issues than
simply narrow considerations of how this agency, the Patent
and Trademark Office might attempt to remedy some of the
injustices that have occurred in the past.
If, in fact, there is a way for this office to
remedy those injustices, of course I think we all favor
that. I don't know anyone who--I personally don't know
anyone who is unsympathetic to those aims, but the problem
is that, as courts have noted and as I think common sense
dictates, trademark laws should not be used for means of
opponents of offensive speech to circumvent the First
Amendment. There are many ways of dealing with offensive
speech, but violation of the First Amendment is not one of
them under our laws, under our Constitution, never mind
under the trademark laws; and there's a doctrine called
unconstitutional conditions, and it means that the
government may not deny a benefit to a person on the basis
of protected speech activities even if that benefit is only
a privilege and not a right. That's discussed by Professor
Melville Nimmer. It has--the theory has been upheld in
courts.
I believe that it's really disingenuous to
maintain that the issuance of a trademark is somehow a
government endorsement of the mark. It doesn't imply
government endorsement of the quality of the goods or of the
services represented by the mark, and so the issuance of a
trademark, once having occurred, ends, the government
involvement in that trademark, and then it becomes a
question of how it is used, whether it is used offensively,
whether it is used in a demeaning or a degrading manner, and
then that trademark office has the power to do something
about that, witness the Harjo case.
I have to admit that the appeal to collective
guilt is a very powerful one. It works on me. It works on
most of us. I just wonder whether that particular kind of
an appeal is appropriate in order to violate basic
Constitutional rights and Constitutional privileges. What
I'm saying is that the government should not withhold the
privileges of trademark registration, whatever they happen
to be, based on ideological content, no matter how
offensive, especially where the announced goal of that
particular kind of withholding is to prevent the marks from
being used at all.
The fact that protected speech may be offensive to
some doesn't justify its suppression under the United States
form of government and under the United States Constitution.
We are all faced every day with examples of offensive
speech, and what we have heard this morning in the way of
testimony here has included a plethora of examples of
offensive speech. They are offensive to me. They are
undoubtedly offensive to you. They are undoubtedly
offensive to everyone in this room who has heard them, if
not offensive to the people who created them; but that
doesn't mean that they are necessarily prohibited from being
uttered because of trademark laws, certainly, and they're
certainly not prohibited from being uttered under the U.S.
Constitution under the First Amendment.
If the purpose of these hearings is to consider
whether there should be a modification to the First
Amendment, that would be one thing. I don't believe that's
the purpose of the hearings, but the Supreme Court of the
United States has held in a case entitled Buckner v. Velejo-
-and I have a citation for it if you'd like it--that the
concept that the government may restrict the speech of some
elements of society in order the enhance the relative voice
of others is wholly foreign to the First Amendment.
Another point that I raise in my written comments
is the possibility of deprivation of property without due
process. Like everyone else who has spoken this morning, I
am concerned about the misuse of trademarks--excuse me--the
misuse of sacred symbols. Whether they belong to Indian
tribes or whether they belong to any other particular
religious group, they should not be misused.
You have heard testimony this morning to the
effect that present trademark laws provide a remedy for that
type of misuse. Something else that I've heard this morning
about names makes he scratch my head, because the purpose of
trademark law, since its inception in the United States and
before that under the laws of Great Britain from which our
laws of course are derived, was to mark a product or a
service in some sort of special fashion in order to denote
the source of those goods or services.
If I file an application on an intent to use basis
saying that I intend to use a trademark on a product or
service, and then I don't use it, my application must fall,
and it does fall because the purpose of a trademark, of
course, is to distinguish and identify goods or services.
To retire marks, to retire names based on no use at all, it
seems to me runs exactly contrary to the basic purpose of
trademark law.
Please don't misunderstand me. I'm not suggesting
in this hearing that there are not other ways to attack this
problem, the problem of the retiring of names, the problem
of disrespectful or offensive references to sacred symbols.
I would wholly support other ways of attacking this problem.
What I'm suggesting to the panel this morning is that
trademark law is not the way to do it, especially in terms
of an amendment to the trademark law or to the regulations
that in some strange and arcane manner result in indefinable
kinds of restrictions on other Constitutional guarantees
such as First Amendment, Fifth Amendment, Fourteenth
Amendment.
I just can't help but note that since the first
amendment does not distinguish between offensive and
acceptable speech, there is a serious problem connected with
any attempt at legislation that would attempt to accomplish
the goal of restricting even offensive speech, speech that
I'm offended at; but as Voltaire has so often been quoted as
saying, "I may not agree with what you say, but I will
defend to the death your right to say it."
Questions?
MS. COHN: I have one.
MS. MARSH: Go ahead.
MS. COHN: Just for maybe my own clarification,
but possibly others, when you talk about the rights, First
Amendment rights--
MR. RUBIN: Yes.
MS. COHN: --and contrast them or talk about them
with trademark rights, you do know that Section 2(a) of the
statute prohibits registration of something that's
scandalous, disparaging, or offensive to a particular person
or group or institution. So I'm not sure whether you're
advocating not applying 2(a) or whether you are simply
talking about the use or free speech separate from trademark
registration.
MR. RUBIN: Thank you. I'm sorry if I confused
you. I am advocating the use of Section 2(a) in order to
determine whether trademarks are offensive or degrading,
etc. I am not, today at least, going to get into a lengthy
discussion about whether there are Constitutional problems
with 2(a). I would like to let that particular baby rest in
its cradle; but as far as the application of 2(a) is
concerned, I am advocating.
MS. COHN: Okay. And just to clarify another
point that you made, when the Patent and Trademark Office
examines a use-based trademark application, the manner in
which the mark is used is looked at by the office in
determining registrability, in particular under Section 2(a)
of the statute. So it's not--and I think you characterized
the registration process as being separate from what the
Trademark Trial and Appeal Board may do in a cancellation
proceeding such as the Harjo decision, and that is true.
It's a separate process, however many of the considerations
are ones that should be examined during the initial
examination of the mark when it's applied for.
MR. RUBIN: I agree.
MS. MELTZER: Thank you very much, and Debbie,
thank you for asking some of the questions that were also on
my mind.
You intriguingly mentioned that there could be
other ways to attack, quote, this problem, which is the
protection of those symbols that might be of some importance
to Native Americans. Do you have any recommendations, any
suggestions today as to what those other--those alternatives
might be?
MR. RUBIN: Probably. Of course there are
separate and distinct acts of Congress relating to the
Bureau of Indian Affairs, for example, and there could be--
again, as Mr. Haine suggested, there could be a dialogue
between appropriate members of Congress and appropriate
representatives of various Native American tribes to
determine what constitutes the kinds of sacred symbols,
sacred representations, items of tremendous importance to
Native American people, but I think that that kind of a
dialogue would be useful because, for example, in reading
some of the written comments submitted prior to these
hearings, I noted that there is a particular Pueblo tribe
that indicated that it has been using its symbol since at
least the middle 1980s. I scratch my head and wonder where
that kind of history would qualify that symbol for
separation from the public domain and recognition as a kind
of ancient historical symbol worthy of special protection.
I'm not giving you an answer to that. I'm just
saying that these are things that should be considered. Mr.
Haine mentioned a number of times the University of
Illinois, my client for whom I am here. The Illinois, as I
don't need to tell Mr. Haine, is actually a collection of
tribes. It is not a single tribe. I bring that up because
who represents this particular collection of tribes which
included many, many distinct tribes, the Peoria? I won't go
into the list, but the point is that we can talk about
generalities in terms of protection of sacred Native
American symbols, but that really doesn't get us anywhere
until we narrow the field, find out exactly what we're
talking about.
There is no tribe called the Illinois. The word
Illinois, in fact, is a French derivation of the
confederation of tribes called the Illinois. I don't mean
to go into Native American history here. I am not qualified
to do that, and I don't pretend to be except where my client
is concerned. I have done some research. So the state is
named after the confederation of tribes. The university is
named after the state. The university does have as one of
its symbols Chief Illinois, but it's not a caricature. It
is a respectful drawing of a face with headdress.
I'm not here to debate whether that is appropriate
or inappropriate in the context of these hearings. All I'm
really saying to you is that there needs to be a lot more
discussion about exactly what it is that should be
considered, who are the appointed representatives, what and
who do they represent, and how do they want these images
protected.
I'm sorry to drag this on except to mention that
there have been several references to the commercial use by
Indian tribes themselves, of some of their names, symbols,
etc., and perhaps that should not be a problem, but that's
something else that should be considered.
Any other questions?
[No response.]
MR. RUBIN: Thank you very much.
MS. MARSH: Thank you. Is there anybody else in
the audience who wants to speak with a comment? Yes, in the
back.
MR. BROUSE: I just quickly wanted to make a
comment about some of the comments that have been made, and
one of them is that we would like to submit some videotape
to show you the respectfulness that the Chief Illinois and
the Illinoisan show for Indian people in their performance
of their mascot. We also would like to--we would like to
invite some of the tribal members from some of the tribes
from Illinois had they not all been killed and removed to
Oklahoma in a trail of tears. Unfortunately, they can't be
here to testify for their sacred symbols. So I'd just like
to bring up those two points.
MS. MARSH: I think we'd be happy to accept a
videotape if you want to arrange to deliver it.
Yes?
MR. HAINE: I'd just like to state I have
resolutions from the tribes of Oklahoma. They're unanimous
in their letters to the board in asking to abolish, cease
and desist using our symbols and likenesses, and again I'd
like to just say that we would like to ask your office to go
to a hearing status. You recently issued a patent
protection for the University of Illinois, the Chief
Illinois symbol, and we are having a--request the city--are
objecting to the issuance of that and asking for a hearing
on it.
MS. MELTZER: Excuse me. Can I make three
comments? For the record, the first speaker after Mr. Rubin
was Gary Brouse of the Interfaith Center on Corporate
Responsibility. Mr. Michael Haine who is the director of
the National Coalition on Racism in Sports and Media spoke
next, and the third person giving some testimony from the
floor is Kathy DeYoung who is an examining attorney from the
U.S. Patent and Trademark Office.
Mr. Brouse requested that he be able to submit a
videotape with some evidence with respect to if University
of Illinois. Mr. Haine requested that the office consider
more active field hearings or public hearings, especially
with respect to specific cases, and Ms. DeYoung is going to
make some further comments.
Unfortunately, we have to read this into the
record because the testimony from the floor, unless you're
at the microphone, can't be heard. Thanks.
MS. DEYOUNG: Mr. Haine suggested that he was
going the send in some comments about recent approval. The
one I'm aware of is the letter. At this point, you would
not send a letter of protest. You would wait until the mark
is published and file an objection, an opposition.
MS. MARSH: Yes. I don't know that we need to
discuss this at this proceeding.
MR. GOFF: Robert Goff again with the estate of
Crazy Horse. I just wanted to clarify a remark, a comment
that was made. Mr. Brouse indicated that the estate of
Crazy Horse and members of the family were in discussions
with Liz Claiborne who sells a brand called Crazy Horse, and
I just wanted to make it clear on the record that those
discussions were aimed for the removal of that name of that
logo of that mark from circulation by Liz Claiborne. That
was a nature of those discussions, and he didn't finish--
didn't make the full statement about the nature of those
discussions. So I just want that clear, that we were
discussing to have that name removed on behalf of the family
of crazy horse.
Thank you.
MS. MARSH: Thank you. Any more comments?
[No response.]
MS. MARSH: Very good. Thank you all again for
coming. I think we got a great deal of very useful
information and a number of different perspectives on these
issues. Again, as Eleanor mentioned, if you have additional
comments or materials you would like us to see, we would
like to have those by July 30th.
Thank you.
[Whereupon, at 12:37 a.m., the meeting was
adjourned.]