Sonia K. Katyal - UCLA Law Review

1634 57 UCLA LAW REVIEW 1601 (2010)
In 1999, the original group won before the Trademark Board, which
cancelled the mark on the grounds that the trademarks “may be disparaging of
Native Americans” and “may bring Native Americans into contempt or disrepute.”
151
In its opinion, the court cited the testimony of one expert who had
argued that the term remains disparaging as “an artifact of an earlier period
during which the public at large was taught to believe that American Indians
were a backward and uncivilized people” and also cited a variety of dictionary
definitions that noted the offensive or disparaging nature of the term.
Despite this history, the evidence also suggested an interesting wrinkle:
Since the mid-1960s to the present, the term redskin(s) had largely disappeared
from language, except to the extent that it was used to refer to the football
team. 152
Yet while the Trademark Trial and Appeal Board (TTAB) took the
absence of the term after 1960 to be relevant to a finding of disparagement,
the court on review criticized the TTAB’s finding, arguing that there was “no
evidence” to support this conclusion. 153
Instead, for the district court, the
absence of the term suggested something else: that the strong secondary meaning
of the mark had largely eclipsed its previous connotations, permanently
altering the meaning of the mark. 154
It thus only considered the time period during
which the trademarks issued—roughly 1967 to 1990—and nothing more, 155
dismissing the views of the petitioners as only “a reflection of their individual
viewpoints.” 156
Based largely on these divergent perceptions, the case was
reversed on the grounds that the finding of disparagement was unsupported
by substantial evidence. 157
advisory committee that studies whether a proposed mark might be derivative of a Maori sign, or otherwise
offensive to the Maori people, and prohibiting their registration. See Peter J. Chalk & Alexander Dunlop,
Indigenous Trade Marks and Human Rights: An Australian and New Zealand Perspective, 99 TRADEMARK
REP. 956, 970–71 (2009).
151. Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d 1705, 1748 (T.T.A.B. 1999).
152. Id. at 1731, available at 1999 WL 375907 at *28. The evidence also suggested a change in the
late 1950s and early 1960s, when the game programs switched from “caricature-like portrayals of Native
Americans” to “realistic portraits of actual Native American individuals.” Id. at 1746, available at 1999
WL 375907 *45.
153. Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96, 132 (D.D.C. 2003).
154. Id. at 132 n.31.
155. The court, for example, dismissed dictionary terms that mentioned that the term redskins was
thought to be offensive on the grounds that it was “mere speculation” without an accompanying discussion
of the purpose and methodology of usage labels. Id. at 130.
156. Id. at 135. The court also reached the same conclusion regarding contemporary resolutions
against the use of the term passed by the National Congress of American Indians (NCAI) because they
were not passed within the relevant time frame. Id.
157. See id. at 125–26 (“The Court concludes that the TTAB’s finding that the marks at issue ‘may
disparage’ Native Americans is unsupported by substantial evidence, is logically flawed, and fails to apply
the correct legal standard to its own findings of fact.”).