Last Thursday, I was one of about 30 people in the courtroom at the Trademark Trial and Appeal Board (TTAB) when a panel of three judges (Kuhlke, Cataldo, and Bergsman) heard oral arguments in the cancellation proceeding brought by a group of Native Americans to cancel six USPTO trademark registrations owned by the Washington Redskins football team that feature the term “redskin.” The dispute centers around whether the term is disparaging. More specifically, the oral argument made clear that the relevant question is:
Whether a substantial composite of Native American found the term ‘redskin’ disparaging during the relevant dates, between 1967 and 1990, when the registrations were issued by the USPTO. And as in any TTAB proceeding, the plaintiffs (the Native American group) has the burden to establish this by a ‘preponderance of the evidence.’
The respondents (the football team organization) attempted to shift the question a bit to whether the meaning of “Washington Redskins” was disparaging. I personally don’t think that is relevant.
The case has been ongoing in one form or another for more than 10 years. And this forthcoming decision by the TTAB is likely to be appealed regardless of who wins this stage.
As I see it, the key challenge is how much evidence can be gleaned from 1967-1990. And whether the Board will consider any evidence outside that date range as having shedding some light on the feelings of Native Americans during the relevant period – after all, such opinions do not just turn on and off, but form over a long period of time.
The attorneys for both sides gave excellent oral arguments, and the Board asked them many difficult questions. One interesting point is that the prior TTAB proceeding (whose entire record was entered by stipulation into this proceeding) was appealed to the D.C. Circuit Court. But everyone appeared to agree that the America Invents Act of last year mandated that an appeal would be to the Eastern District of Virginia. This venue change could play a role in the standard of evaluating a “laches” claim, which is the main the reason the prior proceeding’s finding of disparagement was overruled.
It is also important to remember that the TTAB authority only cover the registrability of the marks. Contrary to some media reports, if the football team loses the case, they absolutely do not have to change the name because of it. And given their common law rights in the marks and logos, it is unclear whether losing the registrations would have a significant impact in the marketplace.
Washington Post columnist Robert McCartney was also at the hearing (I spoke with him briefly afterwords) and he wrote an excellent summary: How many Indians must feel disparaged to strip ‘Redskins’ trademark protection?
Although the hearing room was not terribly crowded, it was quite a scene — there was more police than I have ever seen at the USPTO. And Redskins’ General Manager Bruce Allen was in attendance and as he left the USPTO a swarm of about 20 reporters and cameras followed him to get his reaction: