The Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office ruled today in Blackhorse v. Pro-Football Inc., a suit brought by a group of Native Americans seeking to have the Washington Redskins' trademarks canceled on the grounds that the name is disparaging. The plaintiffs achieved a major victory: the board ruled against the team.
A 1992 suit over the trademark was thrown out on a technicality, since some of the plaintiffs had waited too long after turning 18 to file. Since then, at least a dozen new trademark applications involving the word "Redskins" have been denied, the most recent a filing for hog rinds that the board declared "derogatory" and "offensive." But Blackhorse v. Pro-Football Inc., first filed in 2006, put the already-existing registrations on the line.
The full decision can be found below, but here is the money shot, written by Administrative Trademark Judge Karen Kuhlke:
The recognition that this racial designation based on skin color is disparaging to Native Americans is also demonstrated by the near complete drop-off in usage of "redskins" as a reference to Native Americans beginning in the 1960's.
The record establishes that, at a minimum, approximately thirty percent of Native Americans found the term REDSKINS used in connection with respondent's services to be disparaging at all times including 1967, 1972, 1974, 1978 and 1990. Section 2(a) prohibits registration of matter that disparages a substantial composite, which need not be a majority, of the referenced group. Thirty percent is without doubt a substantial composite. To determine otherwise means it is acceptable to subject to disparagement 1 out of every 3 individuals, or as in this case approximately 626,095 out of 1,878,285 in 1990. There is nothing in the Trademark Act, which expressly prohibits registration of disparaging terms, or in its legislative history, to permit that level of disparagement of a group and, therefore, we find this showing of thirty percent to be more than substantial.
Respondent has introduced evidence that some in the Native American community do not find the term "Redskin" disparaging when it is used in connection with professional football. While this may reveal differing opinions within the community, it does not negate the opinions of those who find it disparaging. The ultimate decision is based on whether the evidence shows that a substantial composite of the Native American population found the term "Redskins" to be disparaging when the respective registrations issued. Therefore, once a substantial composite has been found, the mere existence of differing opinions cannot change the conclusion.
In view of the above, petitioners have shown 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 must be cancelled as required under Sections 2(a) and 14(3) of the Trademark Act.
The cancellation of the Redskins' trademarks will not have an immediate impact. They will appeal, and be allowed to continue exclusively using the trademark in the meantime. But should the cancellation stand up, there will be nothing on the federal level to stop random schmoes from selling Redskins gear, with logos and all. And that's to say nothing of the symbolism of the feds deeming the team's corporate identity unfit for its imprimatur.