Trademark Trial and Appeal Board - Cancellation of Redskins Trademark - Decision lyrics

Decision: The petition for cancellation is granted. Bergsman, Administrative Trademark Judge, dissenting: I respectfully dissent from the majority's decision to grant the petition on the claim of disparagement because the dictionary evidence relied upon by the majority is inconclusive and there is no reliable evidence to corroborate the membership of National Council of American Indians. 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. See generally Consorzio del Proscuitto di Parma v. Parma Sausage Prods., Inc. , 23 USPQ2d 1894, 1898-99 (TTAB 1992) (discussing the language of Lanham Act § 14(3) and explaining that the “registration was obtained” language Congress used to specify when a registration for a mark may be cancelled under the enumerated statutory provisions, such as § 2(a), “shows an intent that only if it should not have issued in the first place should a registration more than five years old be cancelled”). The new petitioners here have filed a petition to cancel the same registrations on one of the same grounds a**erted in the Harjo cancellation proceeding originally filed with the Board. Not only is this claim the same as one in the Harjo cancellation proceeding, but the evidence relating to whether the term “redskins” was disparaging to Native Americans during the relevant time period predominantly is the same as well. As noted by the majority, in this case the new petitioners re-submitted most of the same evidence that the Harjo petitioners submitted—evidence which the district court previously ruled was insufficient to support an order to cancel the challenged registrations as disparaging. The evidence from Harjo was augmented by depositions of the individual petitioners here, each of whom testified that they found the term “redskins” in the challenged marks offensive. Thus, beyond the statutory constraint that the Board can decide only whether the marks can remain registered, the Board's decision also is constrained by the evidence placed before it. The new petitioners in this proceeding made the decision to simply re-use the trial record from the previous Harjo litigation, without substantial augmentation. 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 pa**age 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. By this dissent, I am not suggesting that the term “redskins” was not disparaging in 1967, 1974, 1978, and 1990 (the registration dates at issue). Rather, my conclusion is that the evidence petitioners put forth fails to show that it was. The Record The evidence submitted by petitioners can most charitably be characterized as a database dump. Despite the fact that the Board conducted a case management conference and issued an order “to clarify the applicable law prior to trial to allow the parties to focus their testimony and evidence on facts relevant to the legal issues,” petitioners submitted the entire Harjo file and even lodged objections to the evidence that they submitted. There was no order or structure to petitioners' evidence that told a compelling story or presented a coherent case. One need look no further than gyrations the majority employed to establish the membership of the National Council of American Indians. It is astounding that the petitioners did not submit any evidence regarding the Native American population during the relevant time frame, nor did they introduce any evidence or argument as to what comprises a substantial composite of that population thereby leaving it to the majority to make petitioners' case have some semblance of meaning. Disparagement Claim Expert Reports As noted above, Dr. Geoffrey Nunberg, Dr. Ronald bu*ters, and David K. Barnhart were qualified as expert witnesses in linguistics, none of whom specifically researched the Native American viewpoint of the word “redskin(s)” in connection with football-related services during any time period. Despite the fact that the issue before us is how Native Americans perceive the term “Redskins,” we are presented with the expert testimony of three non-Native American men opining on how other presumptively non-Native American men and women (i.e., the editorial staff of dictionary publishers) perceive the term “Redskins.” The majority notes that when Mr. Barnhart was asked whether the term “darky” is derogatory, he said that “[d]epending on the context, yes.” Likewise, we must determine how Native Americans perceive the term “Redskins” when used in connection with the name of a football team. In this regard, the record includes evidence, albeit one example after the relevant time period, regarding Native Americans using the term “Redskins” to identify the name of their sports teams. The record includes the following material: A sign at a Navajo Indian Reservation school: Red Mesa High School Home of the Redskins, with the photograph taken in 1989 and sent by Robert D. Kahn to Jack Kent Cooke on November 4, 1991; and A sports article in the April 30, 2010 issue of the Seminole Tribune (Fla.), referencing the “Lady Redskins” as one of the teams involved in a tribal basketball tournament. To the extent that post-1990 evidence has any relevance, it shows Native Americans using the term “Redskins” in a prideful way to identify their teams. We can imply from the use of “Redskins” by Native Americans in connection with the name of sports teams that the context in which “Redskins” is used changes the perception of the term. Thus, for example, when a dictionary usage label says “often offensive,” the usage label would not encompa** use of the term “Redskins” in connection with a team name because that would not be offensive to Native Americans who identify their teams with the name “Redskins.” See the discussion about dictionary usage labels infra. Petitioners also introduced testimony and evidence regarding Native Americans using other references to Native Americans and Native American imagery in connection with sports teams. This testimony and evidence introduced into this record by petitioners is relevant to show that the commercial impression or perception of a term or image changes in connection with its use. For example, the record includes the following: A sign at a Navaho Indian Reservation school: Round Rock Public School Fighting Braves with an Indian logo, with comments on the back of the photograph indicating that the image was captured on June 10, 1994; A sign at a Navajo Indian Reservation school: Tuba City High Warriors with an Indian head logo, with comments on the back of the photograph indicating that the image was captured on June 10, 1994; An article in the November 1, 1991 issue of the Star Tribune reported the following: [A]ttempts by the Department of Education to order all schools to discard Indian nicknames failed because leading tribal officials objected. They said schools with large Indian enrollments often took pride in the names. The tribal leaders cited Mahnomen High School, where the enrollment is 39 percent Indian. It's located within White Earth reservation boundaries. Mahnomen's nickname is Indians; The website of the Omaha Nation public school system displaying the legend “Home of the Chiefs & Lady Chiefs,” featuring teepees and an Indian head logo, and providing issues of its online publication, Chief Times; A webpage from the Haskell Indian Nations University displaying an Indian head logo; Various Native American images are shown as logos for Flandreau Indian School, a Bureau of Indian Affairs boarding school located in Flandreau, South Dakota. The Flandreau Indian School's nickname is the “Indians” and, as shown by the image above, the school has an Indian head logo. The Flandreau Indian School's girls' basketball team is nicknamed the “Lady Indians” and another team in its league is nicknamed the “Mighty Braves;” and The Sherman Indian High School, a Bureau of Indian Affairs school located in Riverside, California, has an Indian head logo, shown by the image below: The school's nickname is the “Braves.” Petitioner Jillian Pappan, a Native American of the Omaha Tribe of Macy, Nebraska, provided the following testimony regarding the use of Native American imagery in connection with sports teams: The Sherman Indian School logo is an attempt by a Native American school to show their pride, to show their honor, and I says ‘attempt' because there are people that will misuse it. * * * The Sherman Indian School, I understand that they want to preserve heritage and preserve culture and it's a good idea but at the end of the day that's not the way to do it. The record does not show any evidence or testimony of any actual effort, past or present, at any of the named Native American schools to have the Indian namesakes or imagery changed as school nicknames and logos. Based on this record, there is a difference between what petitioners' linguistic expert concludes regarding the meaning of the term “Redskins” and the empirical evidence regarding how Native Americans use that term in connection with name of sports teams. Dictionary Usage Labels for "Redskins" Entries Keeping in mind that Reigstration No. 0836122 for the mark THE REDSKINS (stylized), shown below, issued September 26, 1967. Registration No. 0978824 for the mark WASHINGTON REDSKINS, in typed drawing form, issued February 12, 1974, Registration No. 0986668 for the mark WASHINGTON REDSKINS and design, shown below, issued June 18, 1974, Registration No. 0987127 for the mark THE REDSKINS and design, shown below, issued June 25, 1974, and Registration No. 1085092 for the mark REDSKINS, in typed drawing form, issued February 7, 1978, let us examine the survey of dictionary usage labels. The majority references the dictionary research conducted by Mr. Barnhart. He found no restrictive usage labels for the term “redskin” in any dictionaries prior to 1965. Beginning in 1966 Mr. Barnhart's dictionary entries start to include usage labels indicating the term is offensive. See Random House Unabridged (1st ed. 1966). However, the record includes a copy of the 1967 Random House Unabridged Dictionary. There is no copy of the 1966 edition. Thus, at the time Registration No. 0836122 registered, there was purportedly only one dictionary with a usage label that stated the term “Redskin” is “often offensive,” meaning that it is not always offensive and leaving open the possibility that “Redskins” is not considered offensive when used in connection with the name of a football team. According to Mr. Barnhart's survey, between 1966 and 1979, only one additional dictionary published a negative usage label regarding the term “Redskin”; that is, the Thorndike-Barnhart Intermediate Dictionary (1974), noting that “the word redskin is often considered offensive.” Thus, at the time Registration Nos. 0978824, 0986668, 0986668, and 1085092 registered, there were two dictionaries with usage labels stating that the term “Redskin” is “often offensive,” again meaning that it is not always offensive and leaving open the possibility that “Redskins” is not considered offensive when used in connection with the name of a football team. Based on the above-noted evidence, the majority found that there is a “clear trend beginning in 1966 to label this term as offensive.” However, at the relevant times (1967, 1974 and 1978), that “clear trend” comprised only two dictionaries. Two does not make a trend. In fact the next dictionary to set forth a negative usage label was the 1980 Oxford American Dictionary, six years after the 1974 Thorndike-Barnhart Intermediate Dictionary. The evidence does not support the majority's finding of fact No. 7 that “[b]eginning in 1966 and continuing to 1990, usage labels in dictionaries indicating the term REDSKINS to be offensive, disparaging, contemptuous or not preferred appear and grow in number,” as applied to Registration Nos. 0836122, 0978824, 0986668, 0986668, and 1085092.252 The dictionary evidence is not sufficiently probative to justify cancelling respondent's registrations when, as noted by the majority, any cancellation of a registration should be granted only with “due caution” and “after a most careful study of all the facts.” Rockwood Chocolate Co., Inc. v. Hoffman Candy Co., 152 USPQ at 601. Use of the term Redskins in Various Media The majority references Dr. Nunberg's survey of electronic databases from major newspapers and magazines published between approximately 1975 through 1989 to glean information about the use of the word “redskins” in the context of Native Americans.” Because Dr. Nunberg's survey begins in 1975, the conclusions he draws are not relevant to Registration No. 0836122 registered in 1967 and Registration Nos. 0978824, 0986668, and 0986668 registered in 1974. Mr. Barnhart conducted a similar search using a Nexis electronic database group file featuring major newspapers, magazines and journals published between 1969 and 1996. He found that the term “redskin” or “redskins” appeared at least once in 143,920 articles. Similar to Dr. Nunberg's initial search results, Mr. Barnhart reported that the results of his “redskin” database search were “overwhelming to be in the context of sports,” with less than two percent of the results referring to Native Americans. Mr. Barnhart would not draw any inferences about the infrequency in which the term “redskin” or “redskins” was used to refer to Native Americans. He testified that it was not what he was asked to do and it would be a significantly greater project to determine whether there is any significance to the lack of occurrences. Nevertheless, he did conclude that since the term REDSKIN appeared in 143,920 articles, it “is acceptable in both formal and informal speech or writing of educated people” at least as it applies to sports teams. In view of the foregoing, the majority's conclusion that the “near complete drop-off in usage of ‘redskins' as a reference to Native Americans beginning in the 1960's” is somehow probative that the term is disparaging is not supported by the record. NCAI Resolution The majority finds that the resolution pa**ed by the National Congress of American Indians (“NCAI”) in 1993 is “clearly probative of the view of Native Americans held at the relevant time period because the NCAI “represented approximately thirty percent of Native Americans” and the resolution set forth “the past and ongoing viewpoint of the Native Americans it represents.” Despite the a**ertions in the resolution that the organization represents “the American Indian and Alaska Tribal governments and people gathered in Crystal City, Virginia, of the Washington D.C. area, for the 1993 Executive Council Meeting” of the organization, there is no reliable evidence supporting the number of Native Americans or tribes that attended the meeting or that were members of the organization during the relevant time frame between 1967 and 1990. The majority relies on the deposition testimony of JoAnn Chase who became the Executive Director of the NCAI on April 1, 1994 and provided testimony about the resolution. JoAnn Chase testified that she “was not in attendance at this meeting” when the resolution was pa**ed, that she did not know if any minutes of the meeting were taken, that she could not locate any record of the minutes or any indicator of whether a quorum was present for the voting of this resolution, that she had no record of the people in attendance at the meeting, and that she did “not know what the membership of the organization was at that time.” Ms. Chase also testified that she had no record of the number of tribes who had delegates to the organization in 1967, 1974, 1985, or 1990, no record of any similar resolutions concerning the use of the name “Washington Redskins” by the organization between 1967 and 1992, and had no letters or correspondence concerning the use of the word “redskins” or “Washington Redskins” with respect to the football team between 1967 and 1992. Nevertheless, based on the following testimony, the majority found that “there were between 100 – 400 members at the time the resolution was taken”: I do not know what the membership of the organization was at that time. I can tell you currently, if, for example, our membership is 206 tribes, it would be one-third. At that time the membership would have been 100 tribes. It could have been 400 tribes. I don't know. The majority also relies on the deposition of Harold Gross, the Director of Indian Legal Information Development Services, a legislative oversight program. The relevance of the Gross deposition testimony is that Mr. Gross testified that Leon Cook, President of the NCAI, participated in a 1972 meeting with Edward Bennett Williams, the President and part-owner of the Washington Redskins football team, to protest the Redskins name. Petitioners did not depose Mr. Cook and have him testify regarding the membership of the NCAI in 1972. Rather, the majority relies on an article published in the Washington Daily News on March 30, 1972 discussing that meeting which reported that the NCAI “claims a membership of 300,000.” The article provides no source as to 300,000 membership figure. The author of the article did not state that Leon Cook said that the NCAI had 300,000 members. The majority references an article published in The Washington Post on March 30, 1972 discussing that meeting reported that the NCAI claims a membership of 350,000 “according to the protesting group's informal leader, Harold Gross, an attorney for another Indian organization.” According to the majority, “Harold Gross testified that he worked for the NCAI in 1969 and would have firsthand knowledge as to the membership in that time period.” In fact, Mr. Gross testified that he was staff counsel for a year. But he was not employed by the NCAI in 1972, the year that the meeting took place, and the article does not provide any information to conclude that Mr. Gross had accurate knowledge about the membership of the NCAI in 1972. The majority references the participation of Dennis Banks, District Representative of the American Indian Movement, at the 1972 meeting. There is no testimony or evidence verifying the size or membership of that organization during the relevant time period. The majority references the Michigan Civil Rights Commission Report on the Use of Nicknames, Logos and Mascots Depicting Native American People in Michigan Education Institutions (October 1998) which stated that the NCAI is “the oldest and largest national Indian group in the U.S.” This statement is probative that the Michigan Civil Rights Commission believes that the NCAI is the biggest Native American Group. However, there is no evidence, let alone reliable evidence, as to the basis of that belief on the part of the Michigan Civil Rights Commission. In footnote 137, the majority references a statement by Dr. Britton Harwood set forth in the minutes of the Miami University Senate that “[t]he National Congress of American Indians, representing approximately 150 tribal governments, calls it [redskin] a racial slur.” The problem with Dr. Harwood's statement is that (i) the minutes do not identify Dr. Harwood, (ii) the minutes do not identify how Dr. Harwood is knowledgeable about the membership of the NCAI, and (iii) the minutes do not identify the source that Dr. Harwood used to quantify the membership of the NCAI. The minutes are probative of Dr. Harwood's belief as to the membership of the NCAI, made in support of a resolution urging Miami University to change its' team names. In footnote 140, the majority references a 1992 survey by WTOP, a Washington, D.C. radio station, showing 28% of Native American tribal leaders found the name Redskins offensive corroborates the fact that a substantial composite of Native Americans perceive the term “Redskin” to be disparaging. The purpose of the survey was to see how tribal leaders and listeners felt about WTOP not using the name Washington Redskins to refer to the football team. There are numerous problems with this survey for purposes of this proceeding. First, the survey took place in 1992, after the relevant time period about an act that took place after the relevant time period. Second, the “tribal leaders” were asked a leading question: “Do you think the name of the football team, The Washington Redskins, is offensive?” The survey respondents were only given the option to answer “yes” or “no.” They were not given the option of “do not know” or “no opinion.” There was no probe question as a follow-up to the answer to determine why a respondent gave a particular answer. Finally, it is not clear that the universe of “tribal leaders” was correct. Petitioners did not provide any information regarding how the survey company identified tribal leaders or verified that the respondent was, in fact, a tribal leader. Furthermore, there was no verification to determine whether the interviews actually took place. Finally, the majority relies on a June 3, 1991 letter from Dale Pullen, publisher of The U.S. Congress Handbook to Charlie Drayton, the Vice President of Communications for the Washington Redskins. In his letter, Mr. Pullen wrote the following: The National American Indian Council, representing 70 per cent of the American Indian population, would like 400 U.S. CONGRESS HANDBOOKS for their D.C. meeting beginning June 7. Ms. Lee Ann Tallbear, Executive Director, for the NAIC, called to see how she might get books . . . . Ms. Tallbear said that her group represents about 1.2 million American Indians who do not live on reservations. The National Congress of American Indians represent [sic] Indians living on reservations (the remaining 30 percent). This is the most persuasive evidence that supports the majority's contention. Nevertheless, the letter is double hearsay (i.e., hearsay within hearsay). While the hearsay objection has been waived, it does not remove the problem with this type of evidence (i.e., someone said to someone that the NCAI represents “the remaining 30 percent”). The evidence supporting the majority's finding of fact No. 27 that “[a]pproximately 150 tribes were members [of the NCAI] in 1993” and its conclusion that “[t]he NCAI members throughout the time period represent approximately 30 percent of Native Americans” is a house of cards that collapses upon examination. In view of the above, “after a careful study of all the facts” and “due caution,” I find that petitioners failed to show by a preponderance of the evidence that a substantial composite of Native Americans found the term REDSKINS to be disparaging in connection with respondent's services during the relevant time frame of 1967-1990. Accordingly, the six registrations should not be cancelled under Sections 2(a) and 14(3) of the Trademark Act.