The trademark trial, Blackhorse v. Pro-Football Inc. which pitted a group of Native Americans seeking to have the Washington Redskins name changed scored a major victory in their attempts to do so this morning. According to various outlets, an advisory board ruled against the Redskins trademark setting the table for the U.S. Patent and Trademark Office to cancel the trademark referring to the moniker as ‘disparaging’.
Below is the full decision written by Administrative Trademark Judge Karen Kuhlke (via Deadspin):
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.
According to Deadspin the ruling will not have an immediate impact especially considering Redskins owner Dan Snyder will more than likely continue to do everything he can to keep the name. This means Snyder and the Redskins will appeal the decision allowing them to continue to use the trademark during the process. However if the trademark cancellation were to be upheld there would be nothing to stop people from selling their own Washington Redskins merchandise and turning a profit on it perhaps finally forcing Snyder to change the name if the NFL wasn’t going to do it in the first place.
