In a Split Decision the Ttab Finds Redskins Disparaging Blackhorse v. Pro-football, Inc. Cancellation No. 92046185 (t.t.a.b. June 18, 2014)

• Publication year: 2014
• Author: Carole Barrett

In a Split Decision the TTAB Finds REDSKINS Disparaging Blackhorse v. Pro-Football, Inc. Cancellation No. 92046185 (T.T.A.B. June 18, 2014)

Carole Barrett

Barrett IP Law

Marina A. Lewis

Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

In the latest attempt to cancel several of Pro-Football, Inc.'s registrations for its REDSKINS mark, a divided Trademark Trial and Appeal Board (TTAB) granted the new petitioners' petition to cancel respondent's six trademark registrations for REDSKINS-formative marks used by the Washington Redskins football team for "entertainment services-namely, presentations of professional football contests" and related services. The TTAB duly noted that it did not have statutory authority to rule on the right to use the trademarks.

Based on the evidence, the TTAB found that each mark was disparaging to Native Americans at the time of its registration. In his dissent, Administrative Trademark Judge Bergsman found that the petitioners had failed to meet their burden of proof by a preponderance of the evidence, and that therefore the registrations should not have been cancelled. The respondent has indicated it will appeal the decision.

To determine whether the facts support a finding of disparagement, the TTAB employed a two-step test under Section 2(a) of the Lanham Act: 1) what is the meaning of the term "redskins" as it appears in the marks for the relevant goods and services, and 2) was the meaning of "redskins" disparaging to the referenced group at the time the marks were registered between 1967-1990? The analysis and answers to these questions was determined by evaluating the views of a "substantial composite" of Native Americans, which need not be a majority.

As to the first prong of the test, the TTAB found that use of the term "redskins" is still considered to identify or refer to Native Americans. The TTAB found that the evidence showed that "redskins" in each of the registered marks created an association with Native Americans and Native American culture. Evidence included two registrations featuring a stylized image of a Native American in headdress, an image featured prominently in the Washington Redskins' logos and uniforms. Evidence also showed that the team's marching band and cheerleaders wore costumes suggestive of Native Americans. The TTAB found that the team "has made continuous efforts to associate its football services with Native American imagery."

As to the second prong of the test, the TTAB made its determination...