In a ruling sure to generate heated discussion in the sports world, the trademark community and elsewhere, a divided panel of the Trademark Trial and Appeal Board (TTAB) has ruled that six registered marks including the term REDSKINS owned by the Washington NFL franchise should be cancelled.
A Long, Strange Trip
Of the six marks at issue, one was registered in 1967, three in 1974, one in 1978, and the most recent in 1990. It is well established that a finding of disparagement must be based upon perception of the term among a “substantial composite of the referenced group” at the time of registration. The TTAB ended up in the awkward position of trying to determine this question in 2014.
An original TTAB cancellation action called Harjo was filed by a group of Native American plaintiffs in 1992. After seven years of litigation, the Board held that the REDSKINS marks should be cancelled. However, the District Court for the District of Columbia disagreed in 2003, holding both that the disparagement finding was not “supported by substantial evidence” and that the plaintiffs’ claims should have been barred by laches. For the next several years the case bounced between the TTAB, the District Court, and the DC Circuit solely on the question of laches. While that case was pending, six new petitioners filed the new Blackhorse cancellation action that resulted in today’s ruling. The parties in the current action stipulated that the entire, voluminous record from the prior Harjo case could be admitted into the case, and waived all hearsay objections.
While the 81 page opinion by the two majority panel members discusses a great deal of expert testimony from linguists and other evidence, two particular findings clearly carried the most weight. The first was the evidence of changing use of the term in the twenty years following 1966. In that year, a dictionary first labeled the word “redskin” as “often offensive.” By 1986, all of the dictionaries surveyed by respondent’s expert labeled the word as “offensive,” “contemptuous,” “not preferred,” or some similar designation. Further, analysis showed that newspapers and magazines changed their usage during the same period by ceasing to refer to individuals as a “redskin,” and by using the word primarily in the context of an insult or slur (for instance, in the context of reporting on a race discrimination lawsuit). The majority concluded that during this period the term ceased being “a neutral synonym for Indian,” if it ever was.
The second finding related to a resolution passed by the National Congress of American Indians (NCAI) in 1993, to the effect that its members believed that the REDSKINS football service marks were “offensive and disparaging.” The majority members concluded that NCAI “represented approximately one third of Native Americans” and that its resolution was “clearly probative of the views of Native Americans held at the referenced time period.”
Judge Bergsman, the dissenting member, had little use for the expert testimony of any of the linguists in the case, deriding it as “three non-Native American men opining on how other non-Native American men and women (i.e., the editorial staff of dictionary publishers) perceive the term ‘Redskins.’” He also set forth some very specific criticisms of the evidence concerning the 1993 NCAI resolution, the foundation for the finding that the NCAI represented one-third of Native Americans in the U.S., and the basis for the majority’s conclusions concerning a “substantial composite of Native Americans.”
As to which view will prevail in the inevitable appeal of this ruling, much will depend on construction of the legal term “substantial composite.” If it is construed to mean merely “more than a few,” the evidence cited by the majority would seem to be sufficient. If it means something more clearly ascertainable, the evidentiary basis for concluding that NCAI represented one-third of Native Americans as of 1993 does leave something to be desired.
Rest Easy, Cleveland
While the majority ruling is sure to cause much gnashing of teeth on talk radio channels and decrying of the ruling as political correctness run amok, today’s ruling is in fact a very narrow one. The majority opinion clearly distinguished the term “Indian,” meaning that baseball fans in Cleveland can rest easy (at least with respect to the team name — the recently “demoted” Chief Wahoo logo may be another matter). By the same logic, the various “Braves,” “Chiefs,” and “Warriors” team names and mascots around the country, with all their Native American logos, imagery and regalia, are no more susceptible to cancellation by the TTAB than they ever were; in fact, the majority’s careful differentiation of the term “redskin” from other Native American terms and imagery may make them safer. Alarmists should also bear in mind that amid all the wonderfully diverse team names and mascots in our sports culture, this was the only major one to refer specifically to skin color, making today’s decision arguably sui generis.
While the inevitable district and circuit court appeals of this ruling carry on, the court of public opinion may move faster. Current and former NFL players had already begun to publicly announce their support for a change of the Redskins team name and, if nothing else, today’s ruling will likely keep the spotlight on this issue. If corporate sponsors to the NFL begin to join apply pressure (as they did with regard to the Clippers change of ownership), intervention by the NFL commissioner and owners may follow swiftly.