Redskins Registration Cancelled
On Wednesday, June 18, the Trademark Trial and Appeal Board (TTAB) ruled two-to-one that the Washington Professional Football team name, The Redskins, was an offensive or pejorative term to a substantial composite of persons, and that six of the team’s trademark registrations should be canceled. (Blackhorse v. Pro-Football, Inc., Cancellation 92/046,185). This was obviously not an easy decision for the TTAB — the hearing on the case had been held fifteen months before the date of the decision. An appeal by Pro-Football is likely. The losing party may appeal either to the Court of Appeals for the Federal Circuit or to the District Court for the District of Eastern Virginia. Filing in the District Court would make sense if Pro-Football needs to provide additional evidence. An appeal to the Federal Circuit (which would have to rely entirely on the record at the TTAB) would make sense if Pro-Football wants to focus on pure errors of law that may have affected the TTAB majority’s decision.
Administrative Trademark Judge Marc Bergsman filed a strong and lengthy dissent, stating that the petitioners’ (Ms. Blackhorse et al.’s) evidence of disparagement was not reliable, and that the evidence submitted by Ms. Blackhorse’s side “can be most chartiably characterized as a database dump,” without order or structure to tell a compelling, coherent story. The case that the petitioners had to make was that the term “Redskins” was deemed a disparaging term by a substantial composite of the population back at the time that Pro-Football applied to register each of the Redskins trademarks, and Judge Bergsman’s opinion points out how the evidence of record is insufficient to support that.
One way or the other, this case will have little effect on other Native American names used as team nicknames, such as Indians, Braves, Chiefs, Seminoles, Fighting Sioux, and so on, as those terms are not terms of disparagement, at least not to enough people to make up a substantial composite.