Kevin has given us a play-by-play on the developments of the cancellation proceeding before the Trademark Trial and Appeal Board ("TTAB") involving Washington Redskins trademarks. Nearly a week has passed and it remains a hot button issue, particularly here in DC. While we all seem to understand that a number of trademark registrations were cancelled by the TTAB, I've been fielding a number of questions as to why the registrations were cancelled. Let's get into the nitty gritty of the decision.
The TTAB held that the Washington Redkskins trademarks were disparaging -- or offensive -- to Native Americans. Federal trademark law prohibits registration of marks which disparage individuals, bring them into contempt, ridicule or disrepute, or marks otherwise considered to "comprise scandalous matter." The TTAB employs a two part test to determine whether a mark is disparaging. The test is not from the perspective of the general public, but instead from the perspective of the person or group that is referenced in the arguably disparating mark. Registration is prohibited if the mark is considered demeaning or offensive by a substantial composite of the group referenced by the mark.
The TTAB applied the test for disparagment to the Redskins marks and found that the marks undoubtedly reference Native Americans. Who can argue they don't, particularly when the logo contains the head of a Native American wearing a headdress? The TTAB then looked at whether a "substantial" number of Native Americans consider the Redskins reference to be disparaging. The TTAB evaluated both evidence indicating that Native Americans were not offending by the Redskins reference and evidence indicating that Native Americans did consider the reference to be derogatory.
In a 2 to 1 split decision, the TTAB found that the evidence presented was adequate to support a finding that "Redskins" is considered disparaging by a "substantial composite" of Native Americans. As a result, six of the trademark registrations owned by the Washington Redskins were cancelled. These registrations include registrations for the marks WASHINGTON REDSKINS, THE REDSKINS, REDSKINS, REDSKINETTES, a logo containing a spear, and the logo containing the image of a Native American and the wrods WASHINGTON REDSKINS.
We have no reason to believe that the decision will not be appealed. If the Court hearing the appeal disagrees with the TTAB, it can vacate or reverse the decision. If it agrees, the decision will be affirmed and the six registrations will remain cancelled. Regardless of the outcome of the registrability of the Redskins trademarks, the Washington Redskins can continue to use, police, and enforce their trademark registrations.
Click on this video to see Kevin discuss what's likely to happen next in this case:
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