Trademark Trial and Appeal Board - Cancellation of Redskins Trademark - The Record and Standing lyrics

The Record The record includes the pleadings, the files of respondent's registrations by operation of Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), deposition testimony of each of the petitioners and the a**ociated deposition exhibits, and nearly the entire Harjo record (except for the deposition testimony of the Harjo petitioners), by stipulation. The submissions from the Harjo record are listed in full in Appendix A (for petitioners) and Appendix B (for respondents). As noted above, the parties only preserved the right to make objections in this case based on relevance to any evidence earlier admitted into the Harjo record. Respondent a**erted 26 pages of relevancy objections. We have considered those objections in weighing the evidence and specifically address them where we have relied on evidence for our findings of fact. We do not rely on the Ross Survey and therefore we do not address respondent's various arguments with regard to that piece of evidence. Petitioners' objections to respondent's evidence are overruled. As noted above, on March 14, 2011, the parties filed a stipulation regarding the admissibility of evidence in this case. In Harjo, the Board admitted the particular evidence to which petitioners now object because neither party then objected to it coming in under a Notice of Reliance. Harjo v. Pro-Football, Inc., 50 USPQ2d at 1721-23. The Board specifically stated as to these documents and other documents upon which respondent relies that it “has considered all such material of both parties as part of the record in this case.” Harjo v. Pro-Football, Inc., 50 USPQ2d at 1723. While the Board in Harjo discussed the hearsay nature of the evidence or lack of foundation, it was admitted into the record; and the parties' stipulation in this case waives all objections, other than relevancy, as to this evidence. Thus, petitioners are estopped from objecting to the evidence on any basis except relevance because the evidence had been admitted in Harjo and, therefore, falls within paragraph No. 1 of the stipulation noted above. In their reply brief, petitioners a**ert that “[i]n addition to the waiver of the hearsay objections, the news articles would fit within hearsay exceptions, including the ancient records exception, so their content may be considered for the truth of the matters a**erted.” While the ancient documents exception could provide further support for reliance on various documents from both parties (newspaper articles, letters, etc.), the contents of which would otherwise constitute hearsay, in view of the waiver of hearsay objections it is not necessary to apply this exception. Finally, regarding the parties' waiver of hearsay objections, courts have routinely accepted and enforced such waivers, and relied on the evidence for the truth of the matter a**erted. “The presumption of waivability has found specific application in the context of evidentiary rules. Absent some ‘overriding procedural consideration that prevents enforcement of the contract,' courts have held that agreements to waive evidentiary rules are generally enforceable even over a party's subsequent objections.” U.S. v. Mezzanatto, 513 U.S. 196, 202 (1995), citing 21 C. Wright & K. Graham, FEDERAL PRACTICE AND PROCEDURE (FPP) § 5039, pp. 207-08 (1977). “Courts have ‘liberally enforced' agreements to waive various exclusionary rules of evidence. Id. (quoting Note, Contracts to Alter the Rules of Evidence, 46 HARV. L. REV. 138, 139-140 (1933)). “[A]lthough hearsay is inadmissible except under certain specific exceptions, we have held that agreements to waive hearsay objections are enforceable.” Id. citing U.S. v. Bonnett, 877 F.2d 1450 (10th Cir. 1989) (hearsay objection waived by stipulation); see FPP § 5039.4 Estoppel and Waiver – Withdrawal of Objections and § 5039.5 Estoppel and Waiver – Stipulations and Contractual Waiver. See also U.S. v. Alazzam, slip op. No. 1:08cr101 (JCC) (E.D.Va. September 29, 2009), 2009 WL 3245392 (use of waiver extended to a prosecution's case in chief). Standing A plaintiff must show that it has a “real interest” in the outcome of a proceeding in order to have standing. Ritchie v. Simpson, 50 USPQ2d at 1025. A “real interest” in the proceeding is a legitimate personal interest in the opposition or cancellation. Id., citing Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). Amanda Blackhorse is a member of the Navajo Nation. She testified that she considers the term REDSKINS in respondent's marks to be derogatory and is offended by it. Phillip Martin Gover is a member of the Paiute Indian Tribe of Utah. He testified that he perceives the terms REDSKIN and REDSKINS to be disparaging, even in connection with respondent's services. Courtney Tsotigh is a member of the Kiowa Tribe of Oklahoma. She testified that she finds the term REDSKIN to be disparaging in any context including for an “NFL team.” Marcus Briggs-Cloud is a member of the Muscogee Nation of Florida. He testified that he finds the term REDSKINS in the registrations to be disparaging and offensive. Jillian Pappan testified that she is a Native American. She testified, inter alia, that the use of the term REDSKIN is an*logous to the term “n******g,” and that people should not profit by dehumanizing Native Americans. In view of the foregoing, we find that each of the petitioners has established a real interest, a personal stake, in the outcome of this proceeding and, therefore, has standing. Respondent does not dispute the petitioners' standing.