USPTO CANCELS SIX “REDSKINS” TRADEMARKS

Photo: Keith Allison; license:Creative Commons Attribution- Share Alike 2.0 Generic 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? Photo: Keith Allison; License: Creative Commons Attribution- Share Alike 2.0 Generic 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”...