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Public Hearings on Official Insignia of Native American Tribes, July 15, 1999

                    UNITED STATES OF AMERICA
                         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.
          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


          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


          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,


                       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


          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


          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


          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


          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


          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


          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


          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


          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


          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


          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


          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


          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


          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


          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


          MS. COHN:  Thank you.

          MR. LOCKARD:  Thanks.


          MS. MARSH:  Our next speaker is Ambassador Charles


          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


          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



          MS. MARSH:  Professor Staurowsky is our next


          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


          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


          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


          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



          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


          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


          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


          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


          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


          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


          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


          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


          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


          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


          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


          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;


          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


          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


          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


          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


          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


          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


          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


          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


          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


          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."


          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


          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


          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


          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.


          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

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