Sonia K. Katyal - UCLA Law Review

1636 57 UCLA LAW REVIEW 1601 (2010)
Although recognizing that the survey was not perfect, the TTAB still recognized
its conclusions as evidence of potential disparagement. In contrast, the district
court dismissed the expert’s findings as “plain arithmetic,” disregarding the study
because it failed to “test the participants’ view of the term ‘redskin(s)’ in the
context of Pro-Football’s services” during the time period of 1967–1990, and
refused to allow any extrapolation from the surveys performed. 163
In doing so, however, the district court’s perspective may have obscured the
statutory language. The petitioners, as the TTAB had recognized, only had to
show that the term may be disparaging, not that the term actually was disparaging.
Given the disagreement between the two perspectives—the historical term
as a racial insult, and the current reference to the team—the TTAB had decided
that it was unable to conclude—in a confusing use of double negatives—that the
word redskins was “not considered offensive during the relevant time period.” 164
In other words, it adopted a more flexible statutory standard that found that the
absence of the term in common language suggested a possibility that the mark
“may be” disparaging (which explains, in part, why it disappeared).
In contrast, the district court did just the opposite. Given its choice to only
consider the mark in the context of the team and during a specific time period,
the court did not consider the historical significance of the term in common
language, focusing only on whether the trademark “may disparage Native
Americans when used in connection with Pro-Football’s services and during the
relevant time frame.” 165
It refused to consider the historical import of the term,
deeming the voluminous writings, cartoons, and references to Native Americans
as redskins as “plainly irrelevant to the legal question before the TTAB.” 166
It
continued:
There is no question that the history of the treatment of Native
Americans in this country has been tragic. Nevertheless, the history of
Native Americans has nothing to do with whether the trademarks at
issue may disparage Native Americans in the context of Pro-Football’s
services and during the relevant time frame . . . . 167
163. Id. at 121, 127.
164. Id. at 130 (quoting Harjo, 50 U.S.P.Q.2d at 1744 n.114).
165. Id. at 131 (emphasis added).
166. Id. at 132 n.29. Although the district court still cited—and then dismissed—the media
portrayal of Native Americans as “aggressive savages or buffoons,” the court, on appeal, found such
evidence to be plainly “irrelevant” to determining whether the marks were disparaging, observing, “at best,
this evidence demonstrates that Pro-Football’s fans and the media continue to equate the Washington
Redskins with Native Americans and not always in a respectful manner,” but refused to concede that
these portrayals suggested that the term redskins is derogatory. Id. at 134.
167. Id. at 132 n.29.