In September 2003, a federal district court in Washington D.C. determined that the trademark “Redskins” had been erroneously cancelled by the Trademark Trial and Appeal Board (TTAB). According to the court, no substantial evidence supported the TTAB’s conclusion that the term was disparaging to Native Americans.
Background
Pro-Football, Inc. owns various “Redskins” trademarks, used primarily by the Washington Redskins, a professional football team. In 1999, in response to a petition filed by a group of Native Americans, the TTAB cancelled six “Redskins” trademarks. The TTAB found that the marks “may disparage” Native Americans or “bring them into contempt, or disrepute.” On appeal to the federal district court, Pro-Football, Inc. requested that the court overturn the TTAB’s cancellation order.
The Lanham Act
Section 2(a) of the Lanham Act (the federal trademark statute) states that a mark may not be registered if it consists of “matter which may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” To determine whether the mark might be disparaging, the TTAB looked “not to American society as whole…but to the views of the referenced group.” Pursuant to this analysis, the TTAB set forth a two-step test:
What is the meaning of “Redskins” as used in connection with Pro-Football’s services?
Is this meaning one that may disparage Native Americans?
To answer these questions, the TTAB looked to two sources of evidence: the testimony of legal experts and survey evidence.
As to the first question, the TTAB concluded, and the court agreed, that “‘Redskins’ clearly both refers to [the] professional football team and carries the allusion to Native Americans inherent in the original definition of the word.”
With respect to the second question, the court disagreed with the TTAB’s conclusion that “Redskins” may disparage Native Americans. Rather, after review of the TTAB’s findings of fact, the court held that the conclusion was not supported by substantial evidence. Among other problems with the TTAB’s analysis, the court referenced the following:
The TTAB improperly extrapolated the survey results to the entire Native American population.
The survey did not sufficiently represent the views of Native Americans as a whole.
No evidence was presented as to the overall number of Native Americans who would find the word “Redskins” offensive.
The survey results had no relevance to Native Americans’ views regarding the use of “Redskins” as used in connection with the professional football team.
The TTAB improperly analyzed how the use of “Redskins” in connection with Pro-Football’s services disparages Native Americans.
The survey was conducted contemporaneously with litigation, not when the trademarks were registered (or renewed).
Conclusion
As noted, the court ultimately reversed the TTAB’s cancellation of the marks because it found that this determination was not supported by substantial evidence. In addition, the court cautioned that its opinion “should not be read as making any statement on the appropriateness of Native American imagery for team names.”
Pending Appeal
In November 2003, the group of Native Americans who originally filed the cancellation petition announced that they would appeal the district court’s decision.