In a 99 page opinion, and based on at 2-1 vote, the USPTO cancelled six “Redskins” patents issued to Pro-Football, Inc. (link to full opinion). The cancellation proceeding was initiated by five Native Americans (the “Petitioners”) pursuant to Section 14 of the Trademark Act of 1946. The basis for the requested cancellation was the claim that the protected marks disparaged Native American persons at the time they were issued.
The disparagement claims only pertain to the actual terms “Redskins” and “Redskinnettes.” The term “Redskinnettes” refers to the Washington Redskins cheerleaders. The Petitioners specifically claim that the word “Redskins” is a racial slur. The disparagement test comprises a two-step inquiry:
- What is the meaning of the matter in question, as it appears in the marks and as those marks are used in connection with goods and services identified on the registration?
- Is the meaning of the marks one that may disparage Native Americans?
With respect to the first question, the USPTO found that the word “Redskins” when used in connection with professional football does refer to Native Americans. Therefore, the first prong was met.
In deciding the second question, the USPTO looks not to the American public as a whole, but to the view of the referenced group (i.e., Native Americans). Furthermore, it is not the views of the majority of the referenced group that necessarily matter. Rather, cancellation is appropriate if a “substantial composite” of the referenced group consider the word derogatory.
The Petitioners presented testimony from “experts” in “linguistics, specializing in lexical semantics.” Perhaps most interesting was the testimony from one of the Petitioners “experts” that whether the use of skin color to refer to a group of people is offensive and derogatory “depends on the context”. This would seem to be a matter of common sense as perhaps thousands of words could be considered derogatory depending on the specific context.
The majority opinion devotes many pages to show that the term “Redskins” in the past has been used by people to refer to Native Americans in a derogatory manner. The majority opinion does recognize that there were many Native Americans who were not offended by the use of the name “Washington Redskins” and who were proud that sports teams use Indian symbols to represent them. But this fact was not dispositive. In granting the Petition cancelling the trademarks in question, the USPTO basically found that at least 30% of Native Americans found the word “Redskins” when used as the name for an NFL team was disparaging at all times.
The one dissenter (Administrative Trademark Judge Bergsman) pointed out that none of the linguistics experts “specifically researched the Native American viewpoint of the word ‘redskin(s)’ in connection with football-related services during any time period.” Judge Bergsman would have defined the question as being “how Native Americans perceive the term ‘redskins’ when used in connection with the name of a football team.” He specifically referenced examples where Native Americans had used the term ‘redskins’ in a positive way to refer to their own sports teams. He also criticized the majority’s conclusion that 30% of Native Americans found the term derogatory as being based on nothing but speculation and hearsay.
Pro-Football, Inc., will obviously appeal the ruling. This will be an interesting appeal to follow. In the meantime, Pro-Football, Inc., will be able to continue to use the trademarks in question.