On June 18 a divided three-judge panel of the U.S. Trademark Trial and Appeal Board (TTAB) granted a petition brought by a group of Native Americans seeking the cancellation of six federal trademarks related to the Washington Redskins. Federal trademark law prohibits the recognition of any marks “which may disparage…persons…or bring them into contempt, or disrepute.” The Board majority agreed with the petitioners that the use of the term “Redskins” in each of the six marks disparaged Native Americans.
The factual question for the Board was not whether the term “Redskin” is disparaging in contemporary usage, but rather was it considered disparaging at the time the marks were registered. The trademarks at issue here were registered at different times between 1967 and 1990. Accordingly, the Board was tasked with looking at historical evidence. But as the dissenting judge on the panel, Marc A. Bergsman, pointed out, two key pieces of evidence relied upon by the majority were dubious at best.
The first thing the majority looked at was expert testimony on the dictionary definition of “redskin” prior to 1990. Bergsman questioned the qualifications of these experts:
[They] were qualified as expert witnesses in linguistics, none of whom specifically researched the Native American viewpoint of the word “redskin(s)” in connection with football-related services during any time period. Despite the fact that the issue before us is how Native Americans perceive the term “Redskins,” we are presented with the expert testimony of three non-Native American men opining on how other presumptively non-Native American men and women (i.e., the editorial staff of dictionary publishers) perceive the term “Redskins.”
Bergsman goes on to summarize the testimony of one of the experts, who could only identify a single dictionary entry defining “redskin” as derogatory as of 1967, when the first “Redskins” trademark was registered. And there was only one additional dictionary published between 1966 and 1979 that suggested the term was disparaging. The Board majority argued there was a “trend” towards dictionary editors treating “Redskin” as derogatory, but as Bergsman replied, “Two does not make a trend.”
The second major piece of evidence cited by the majority was a 1993 resolution passed by the National Congress of American Indians (NCAI) declaring the “Redskins” name derogatory. The Board took this as evidence a significant number of Native Americans opposed the continued use of the name. But as Bergsman noted, the NCAI passed no such resolution at any point between 1967 and 1992 when the trademarks were initially registered. Furthermore, there was insufficient evidence NCAI actually represented the views of “approximately thirty percent of Native Americans,” as it claimed. Bergsman also dismissed other purported evidence of Native American opposition to the name as highly misleading:
[T]he majority references a 1992 survey by WTOP, a Washington, D.C. radio station, showing 28% of Native American tribal leaders found the name Redskins offensive corroborates the fact that a substantial composite of Native Americans perceive the term “Redskin” to be disparaging. The purpose of the survey was to see how tribal leaders and listeners felt about WTOP not using the name Washington Redskins to refer to the football team. There are numerous problems with this survey for purposes of this proceeding. First, the survey took place in 1992, after the relevant time period about an act that took place after the relevant time period. Second, the “tribal leaders” were asked a leading question: “Do you think the name of the football team, The Washington Redskins, is offensive?” The survey respondents were only given the option to answer “yes” or “no.” They were not given the option of “do not know” or “no opinion.” There was no probe question as a follow-up to the answer to determine why a respondent gave a particular answer. Finally, it is not clear that the universe of “tribal leaders” was correct. Petitioners did not provide any information regarding how the survey company identified tribal leaders or verified that the respondent was, in fact, a tribal leader. Furthermore, there was no verification to determine whether the interviews actually took place.
The Standing Problem
Bergsman did not challenge the majority’s finding on one issue, which I will address here, and that is standing. There are five petitioners in this case. Each is a member of a federally recognized Native American tribe. Each claims to find the use of the term “Redskins” by the football team derogatory and offensive. That’s the entirety of their standing argument. The Board accepted this as proof each petitioner has a “real interest” and “personal stake” in the cancellation of the Redskins trademarks.
This is an unusually generous interpretation of standing. It made me recall a personal experience. About ten years ago, I was following a government antitrust case against a physician group in North Carolina. The parties settled, and federal law required the government to file a copy of the settlement–and all “determinative documents” related thereto–with the court. This was to afford the public a chance to review the case information and file comments supporting or objecting to the settlement.
I had filed an extensive comment opposing the settlement (as an abuse of government power). I also questioned the government’s refusal to disclose a key document in the case. The government argued it was unnecessary. I maintained the law required disclosure. Eventually, I intervened and filed an appeal with the U.S. Court of Appeals in Richmond. The appeals court laughed me out of the room (figuratively), holding that I lacked standing to bring such a challenge.
My argument boiled down to, “The law says the public has the right to this information, therefore as a member of the public I am injured by the government’s refusal to provide said information.” The government–and the court of appeals–replied that while Congress may create a “public” right, that does not give each individual member of the public standing to bring a lawsuit to enforce said right.
And that was not an unreasonable position. While I was annoyed by the lack of disclosure, I was not injured. The “right” in this case was purely a creation of the state, i.e. access to information generated in a government antitrust investigation. It was not a violation of my rights as a person or even a tort in the ordinary civil sense.
Similarly, while the petitioners in the Redskins case may be genuinely offended by the use of the name–and I won’t question their sincerity–I do not think it should rise to the level of a legally remediable injury. Congress may wish to exclude certain words and phrases from trademark protection, but that should not automatically vest standing in any person who claims to be offended in the abstract by such terms.
The Subjectivity Problem
Which brings me to my next problem with the Board’s decision. Here is the extended text of the law prohibiting disparaging trademarks:
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—
(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute;
This is a completely subjective test. There is no reliable way to determine, before the fact, whether a term is “immoral” or “disparaging” to some group of persons. Nor is it clear how one would even define the disparaged group. We saw this in the above discussion. If 30% of Native Americans–a term that itself is quite fluid–find a term offensive, is that enough to deny trademark protection? What about 15%? Or 10%? How many people must object to a term before it runs afoul of the law?
Consider another section of this same law that prohibits trademark protection of any mark that
(c) Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.
Now this is an objective rule. Don’t use an actual person in a trademark without their consent. Everyone can understand and abide by this prohibition without difficulty.
The subjectivity problem is compounded here by the fact the initial Redskins trademark was registered nearly 50 years ago. No matter how much due diligence or good faith the Board exercises, it is impossible to recreate a subjective viewpoint that old. Clearly, the Board majority relied in some part–if not great part–on the present-day (and largely negative) coverage of the Redskins name controversy. Which only further undermines the credibility of the trademark disparagement law.
The Monopoly Problem
All that said, the Redskins should not be looked at as an unfortunate victim of “political correctness” run amok. Some commentators have suggested the Board’s decision amounts to a violation of the Redskins’ free speech rights. Actually, the opposite is true. By canceling trademark registration, the Board has deprived the football team of a weapon it can use to deprive others of their free speech rights. And even without trademark registration, the Redskins are still in a position to profit handsomely off their name.
The constitutional justification for federal trademarks has always been suspect. Although trademarks are lumped together with copyrights and patents as types of “intellectual property,” the Constitution only authorizes the latter two. There is no express constitutional basis for trademarks, and the implicit basis–Congress’ authority to regulate interstate commerce–is shaky given the First Amendment’s superseding command that the legislature not regulate against free speech.
A trademark is basically a state-granted monopoly over a word. It is absurd that a football team should claim exclusive commercial rights over the use of a term it did not even invent. In this sense, the Washington Redskins trademark should be canceled–and so should every other NFL trademark. It’s no more ludicrous that a football team in Virginia should have a monopoly on the word “Redskins” than one in Massachusetts should have one over the term “Patriots.”
The Board did not prohibit the Redskins from continuing to use or profit from their traditional name. It simply deprived them of a small package of special state privileges. So the Redskins are no more a victim here than the Native Americans who initiated this case. The only beneficiaries are the lawyers, on both sides, who will likely continue to collect fees well into the next decade.