cyckV4

164 GROUNDS FOR REFUSING REGISTRATION
in 1967, 1974, 1978, and 1990 (the registration dates at issue). Rather, my conclusion is
that the evidence petitioners put forth fails to show that it was.
Questions:
1.) The TTAB decision is being appealed. Will it be reversed or upheld? Why?
2.) If the TTAB decision is upheld, what are the practical effects? Are the Washington
Redskins forbidden from using the mark? May others now use the mark without
payment? How does that exert pressure on the Redskins? Remember, the loss of a
Federally registered leaves behind common law marks—both state marks and Federal
protection under section 1125(a).
3.) Any standard to adjudicate 1052(a) cancellation of disparaging marks has to answer
the central “what, who, how many and when” questions.
a.) “What”? The TTAB and the District Court agreed that the meaning of the word
“Redskins” was to refer to Native Americans. It rejected an argument that that term had
dropped out of usage and that the primary significance of the term was now its reference
to the team. Do you agree? If you heard the word in a conversation, e.g. “How about
those redskins?” what or who would you assume it referred to? Does it matter, so long
as some people find the term offensive? Is the stylized Native American featured on the
logo important to the analysis of the word mark?
b.) “Who”? Whose view of whether a mark is disparaging is relevant? The TTAB and
the District Court believed it was those who believed they were being disparaged. Do you
agree? And who has standing to oppose registration of a mark? The TTAB said that the
plaintiffs must have a “real interest”—meaning “a legitimate personal interest”—in the
outcome of the proceeding. The five Native American plaintiffs, all of whom found
“redskins” disparaging, readily met that standard. Amanda Blackhorse et al v. Pro-Football,
Inc. (TTAB 2014). Do you agree? Does this meet the Article 3 threshold for standing?
c.) “How many”? How many members of a group need to find the mark disparaging
in order to satisfy the standard for cancellation? The TTAB found that when 30% of
a group finds a term disparaging, this is a “substantial composite” sufficient to prohibit
federal registration. Is this threshold high? Low? What kind of evidentiary showing
should be required?
d.) “When”? The court and the TTAB agreed that the relevant date at which the
finding of disparagement had to be made was at the time of registration, which in the
case of the earliest mark was 1967. Do you agree that is the relevant time frame? What
if a mark we find wildly offensive today had been registered when the term was regarded
as respectable? Should it be subject to cancellation nevertheless?
4.) A 2010 case prevented registration of KHORAN for wine because the term would be
recognized as referring to the Koran, and its use on wine disparaged the beliefs of Muslim
Americans. See In re Lebanese Arak Corp., 94 USPQ2d 1215 (TTAB 2010). Sound?
PROBLEM 6-1
Does 1052(a) abridge the freedom of speech in a way that violates the First
Amendment? Consider these materials in developing your answer.