Yesterday the Trademark Trial and Appeal Board (TTAB) issued a decision in Blackhorse v. Pro Football, Inc., which canceled a variety of U.S. federal trademarks that were issued to the Washington Redskins football team between 1967 and 1990. The trademarks in question consisted in whole or in part of the term REDSKINS for professional football-related services. The TTAB ruled that these trademarks were inappropriately granted on the ground that the registrations were obtained contrary to Section 2(a), 15 U.S.C. § 1052(a), which prohibits registration of marks that may disparage persons or bring them into contempt or disrepute.
While this decision will be widely cheered by those who proclaim the virtues of political correctness, there is absolutely no doubt in my mind that from a legal standpoint this decision is clearly wrong.
From a purely legal standpoint there is absolutely no valid reason to have canceled the trademarks in question, but this is the second time the TTAB has canceled these same trademarks. Ultimately, the previous challenge was reversed as the result of laches because the challengers waited too long to bring the challenge. Laches was not an issue in this case, but previously federal courts also question the evidence, or lack thereof, relied upon the challenge the trademarks. See Redskins Can Keep Trademark.
If the law matters this decision will be overruled on appeal. This is not to say that the trademarks in question are not hurtful to some, but the law simply requires direct evidence that the relevant audience, in this case Native Americans, found the term disparaging when the trademarks were actually registered. On this critical question there was simply not competent legal evidence, which is not to say that the term in and of itself isn’t offensive or it hasn’t been used as a racial slur. Based on the appropriate legal standard those things simply are not relevant.
One must question, however, whether the law will matter and whether the Redskins are just on the wrong side of history. Some leaders, including President Barack Obama and Senate Majority Leader Harry Reid have proclaimed the trademark must go, inserting themselves into this legal contest as if there aren’t more pressing issues facing America.
The main problem with the TTAB ruling is that there is no evidence to support the decision. The relevant legal question is not whether a trademark is politically incorrect, or whether a trademark becomes disparaging. Rather, the question is whether at the time the trademark was registered whether it was disparaging. That means that the challengers to the trademark must submit evidence that the trademark would be considered disparaging as they were registered. But finding evidence today of what the public would have perceived back in 1967, for example, is not easy.
Whether the mark is politically incorrect or disparaging today is completely irrelevant from a legal standpoint. Still, over 80% of Americans do not find the name disparaging, while a 2004 poll of Native Americans found that 90% didn’t believe the name was problematic. Thus, there was not only a lack of evidence, but there is a disconnect between what the TTAB found and the perceptions of the public. This seems particularly problematic.
So what evidence did the TTAB purport to rely on? By their own admission the TTAB relied upon a National Congress of American Indians’ (“NCAI”) 1993 Resolution 93- 11, among other contemporaneous evidence. Under the appropriate legal standard what someone said or thought in 1993 is wholly irrelevant to the question of whether in 1967 a trademark was disparaging. This and other contemporaneous testimony is simply not legally probative on the critical question. If the district court and appellate courts follow the law this decision will be set aside.
About the only contemporaneous evidence submitted was that certain dictionaries defined the term “redskin” as often being offensive. But even that does not provide the support you might otherwise think it would when you probe the central question at issue. The question is not whether the term “redskin” is offensive, or even whether the term “redskin” is disparaging. The question is whether the term as used as a trademark in the given context is disparaging. Simply stated, there was no evidence on the question of whether the relevant community (i.e., Native Americans) found the trademark REDSKIN as associated with professional football related offerings disparaging dating all the way back to 1967.
What many accounts of this ruling will likely omit is the fact that the TTAB decision was not unanimous. There was a dissent filed by Administrative Trademark Judge Marc Bergsman. He explained:
To be clear, this case is not about the controversy, currently playing out in the media, over whether the term “redskins,” as the name of Washington’s professional football team, is disparaging to Native Americans today. The provisions of the statute under which the Board must decide this case – §§ 2(a) and 14(3) of the Trademark Act, 15 U.S.C. §§ 1052(a) and 1064(3) – require us to answer a much narrower, legal question: whether the evidence made of record in this case establishes that the term “redskins” was disparaging to a substantial composite of Native Americans at the time each of the challenged registrations issued.
Bergsman also pointed out that, contrary to the claims of the majority, a federal court did previously find the evidence relied upon by the TTAB in Harjo was insufficient to support a finding that the trademarks are disparaging. He explained:
The D.C. Circuit Court of Appeals did not overturn the district court’s ruling in Harjo II that the evidence introduced at the Board in the Harjo cancellation proceeding was insufficient to support the Board’s decision in that case. Nor has the passage of time aided what could be described as a stale record. The consequence of petitioners’ decision to rely on the same evidence previously found insufficient to support cancellation without substantial augmentation is that the evidence before the Board in this case remains insufficient as well.
Indeed, the evidence relied upon by the TTAB in this case was essentially unchanged. Thus, if the district court ruling is consistent that should mandate a finding that the evidence in this case is legally insufficient.
In short, there was no evidence to support the challenge and the TTAB should never have ruled as they did. While we can discuss whether the term “Redskin” is disparaging, offensive or politically incorrect, in order for the challenge to succeed the law would have had to be ignored, and evidence from years after the fact would need to be relied upon in exchange for evidence in existence at the relevant time, namely the time of registration. Altering the law and in particular rules of evidence to come to a politically correct decision is not appropriate on any level.
Time will tell whether this decision stands. If the law is actually applied properly this decision of the TTAB will be overruled. But it is possible that the law will not matter. It is entirely possible that political correctness will lead to classic misinterpretations of the law in order to achieve the predetermined, desired result.