cyckV4

158 GROUNDS FOR REFUSING REGISTRATION
the area of marketing and trademark surveys made a number of criticisms. His critique
of the questions asked stated that:
• the questions in the survey were leading and not neutral;
• the lists of words referring to Native Americans contained an insufficient number
of terms;
• in using the term “offensive” in its questions, the survey did not illicit the
necessary information for a determination under section 2(a);
• asking questions about what others think leads to ambiguous results. Id.
[For these reasons among others Dr. Jacoby was led to] conclude that the survey
was completely unscientific. Id. In addition, Dr. Jacoby found the survey flawed because
it sought the current views of its participants rather than their perceptions during the
relevant time period. Id. Finally, Dr. Jacoby observed that the survey was a failure
because it did not ascertain the perceptions of those questioned on the use of the word
“redskin(s)” in the context of Pro-Football’s entertainment services. Id.
After detailing the evidence on the surveys, the Board ignored Dr. Jacoby’s detailed
criticisms and made basically three findings of fact regarding this survey evidence:
1. “After careful consideration of Dr. Ross’ testimony, the survey report and the
substantial survey data in the record, we find ample support for the viability of the survey
methodology used, including the sampling plan, the principal questions asked, and the
manner in which the survey was conducted.”
2. “We find no error in including adults aged 16 and above in the survey, even though
the younger participants were not alive, or not adults, at the time of registration of several
of respondent’s marks herein. Dr. Ross does not represent this survey as anything other than
a survey of current attitudes as of the time the survey was conducted.” Id.
3. “In this regard, we find that the survey adequately represents the views of the
two populations sampled. While certainly far from dispositive of the question before us
in this case, it is relevant and we have accorded some probative value to this survey, as
discussed in our legal analysis . . . .” Id.
The Board indicated, however, that the Ross survey was “not without flaws.” Id.
In particular, the Board did not accord any weight to the survey results pertaining to the
participants’ conjecture about the views of others. Id. The TTAB also observed that “a
survey of attitudes as of the dates of registration of the challenged registrations would
have been extremely relevant in this case.” Id. (emphasis added). Additionally, the Board
noted that “a survey that considered participants’ views of the word ‘redskin(s)’ as used
by respondent, the media and fans in connection with respondent’s football team would
have been extremely relevant.” Id. (emphasis added).
IV. DISCUSSION
A. The Evidence Below is Insufficient to Conclude that During the Relevant Time
Periods the Trademarks at Issue Disparaged Native Americans or Brought Them
Into Contempt or Disrepute
Essentially, this appeal presents the question of whether the TTAB’s decision that
the registered marks “may disparage” Native Americans was supported by “substantial
evidence.” Under the section 2(a) of the Lanham Act:
No trade-mark 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—