Amanda Blackhorse, Marcus Briggs, Phillip Gover, Shquanebin Lone-Bentley, Jillian Pappan, and Courtney Tsotigh v. Pro Football, Inc.

THIS OPINION IS A

PRECEDENT OF THE TTAB

Hearing: Mailed:

March 7, 2013 June 18, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE

_____

Trademark Trial and Appeal Board

_____

Amanda Blackhorse, Marcus Briggs-Cloud, Philip Gover,

Jillian Pappan, and Courtney Tsotigh

v.

Pro-Football, Inc.

_____

Cancellation No. 92046185

_____

Jesse A. Witten, Jeffrey J. Lopez, John D. V. Ferman, Lee Roach and Stephen

Wallace of Drinker, Biddle & Reath LLP for Amanda Blackhorse, Marcus Briggs,

Philip Gover, Jillian Pappan, and Courtney Tsotigh.

Robert L. Raskopf, Claudia T. Bogdanos and Todd Anten of Quinn Emanuel

Urquhart & Sullivan, LLP for Pro-Football, Inc.

_____

Before Kuhlke, Cataldo and Bergsman, Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

OVERVIEW

Petitioners, five Native Americans, have brought this cancellation proceeding

pursuant to Section 14 of the Trademark Act of 1946, 15 U.S.C. § 1064(c). They

seek to cancel respondent’s registrations issued between 1967 and 1990 for

Cancellation No. 92046185

trademarks consisting in whole or in part of the term REDSKINS for professional

football-related services on the ground that the registrations were obtained contrary

to Section 2(a), 15 U.S.C. § 1052(a), which prohibits registration of marks that may

disparage persons or bring them into contempt or disrepute. In its answer,

defendant, Pro-Football, Inc., asserted various affirmative defenses including

laches.1

As explained below, we decide, based on the evidence properly before us, that

these registrations must be cancelled because they were disparaging to Native

Americans at the respective times they were registered, in violation of Section 2(a)

of the Trademark Act of 1946, 15 U.S.C. § 1052(a). This decision concerns only the

statutory right to registration under Section 2(a). We lack statutory authority to

issue rulings concerning the right to use trademarks. See, e.g., In re Franklin Press,

Inc., 597 F.2d 270, 201 USPQ 662, 664 (CCPA 1979).

The Registrations at Issue

The following six registrations (hereinafter referred to collectively as the

REDSKINS marks) are the subject of this cancellation proceeding:

1. Registration No. 0836122 for the mark THE REDSKINS (stylized),

shown below, for “entertainment services – namely, football exhibitions rendered in

stadia and through the media of radio and television broadcasts,” in Class 41;2

1 The Board struck the other affirmative defenses, which primarily concern Constitutional

challenges and they are preserved for appeal.

2 Registered September 26, 1967; second renewal.

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Cancellation No. 92046185

2. Registration No. 0978824 for the mark WASHINGTON REDSKINS, in

typed drawing form, for “entertainment services – namely, presentations of

professional football contests,” in Class 41;3

3. Registration No. 0986668 for the mark WASHINGTON REDSKINS

and design, shown below, for “entertainment services – namely, presentations of

professional football contests,” in Class 41;4

4. Registration No. 0987127 for the mark THE REDSKINS and design,

shown below, for “entertainment services – namely, presentations of professional

football contests,”5 in Class 41;

3 Registered February 12, 1974; third renewal.

4 Registered June 18, 1974; second renewal.

5 Registered June 25, 1974; second renewal.

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Cancellation No. 92046185

5. Registration No. 1085092 for the mark REDSKINS, in typed drawing

form, for “entertainment services – namely, presentations of professional football

contests,” in Class 41;6 and

6. Registration No. 1606810 for the mark REDSKINETTES, in typed

drawing form, for “entertainment services, namely, cheerleaders who perform dance

routines at professional football games and exhibitions and other personal

appearances,” in Class 41.7

Prior Litigation

This is the second time the Board has faced a petition to cancel these

registrations. On September 10, 1992, Suzan Harjo and six other Native Americans

filed a petition to cancel the above-noted registrations on the ground the marks

consist of or comprise matter which disparages Native American persons, and

6 Registered February 7, 1978; second renewal.

7 Registered July 17, 1990; renewed in 2000. Section 8 affidavits of continuing use and

applications for renewal under Section 9 must be filed at the end of each successive 10-year

period following the date of registration. 15 U.S.C. § 1059. See also Trademark Manual of

Examining Procedure (TMEP) § 1606.03 (“The Director has no authority to waive the

deadline for filing a proper § 9 renewal application.”). We note the last Section 8 affidavit

and Section 9 application for renewal was filed in 2000 and accepted by the USPTO on

March 9, 2004. The filing deadline for the next renewal would have been July 17, 2010 but

USPTO records do not show any such filing. Thus, it appears regardless of the outcome of

this proceeding, this registration has expired. Nonetheless, when a registration which is

the subject of a cancellation proceeding is abandoned or left to expire during the proceeding,

such action is treated as an abandonment of the registration without the consent of the

petitioner. 37 C.F.R. § 2.134(b). See also Trademark Trial and Appeal Board Manual of

Procedure (TBMP) § 602.02(b) (3d ed. rev. June 2013). Typically, the Board would issue a

show cause order to the respondent to indicate whether the expiration of the registration

was purposeful or inadvertent. If such action was purposeful, judgment is entered against

the respondent as to that registration. If the expiration was inadvertent, the petitioner

would be allowed time to pursue its claim to final judgment. Neither party alerted the

Board to this issue. Because the proceeding was tried and briefed on all the registrations

including this one, we proceed to final judgment on this registration.

4

Cancellation No. 92046185

brings them into contempt, ridicule, and disrepute; and the marks consist of or

comprise scandalous matter under Section 2(a) of the Trademark Act. Respondent

denied the salient allegations in the petition for cancellation and asserted eleven

affirmative defenses, including laches. The Board struck all of respondent’s

affirmative defenses. Harjo v. Pro Football, Inc., 30 USPQ2d 1828, 1833 (TTAB

1994); and 50 USPQ2d 1705, 1710 (TTAB 1999). After seven years of litigation,

involving multiple discovery and pretrial motions, the Board issued its decision on

the merits, held that respondent’s REDSKINS marks were disparaging to Native

Americans when registered and ordered the registrations canceled. Harjo v. Pro-

Football, Inc., 50 USPQ2d at 1743.

Respondent appealed the decision to the United States District Court for the

District of Columbia. On motion for summary judgment, the District Court

reversed the Board for two reasons:

The TTAB’s finding of disparagement is not supported by

substantial evidence and must be reversed. The decision

should also be reversed because the doctrine of laches

precludes consideration of the case.

Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96, 68 USPQ2d 1225, 1263 (D.D.C.

2003).

The petitioners appealed the rulings that the claim of disparagement was not

supported by substantial evidence and that the defense of laches may be asserted

against a disparagement claim. The United States Court of Appeals for the District

of Columbia Circuit held that the District Court applied the wrong standard in

evaluating laches as to at least one of the petitioners because “laches runs only from

5

Cancellation No. 92046185

the time a party has reached his majority” and, while retaining jurisdiction over the

case, remanded the record to the District Court to evaluate whether laches barred

petitioner Mateo Romero’s claim. Pro-Football, Inc. v. Harjo, 415 F.3d 44, 75

USPQ2d 1525, 1528 (D.C. Cir. 2005). The D.C. Circuit did not address the issue of

whether substantial evidence supported the Board’s finding of disparagement. On

remand, the District Court found that laches did bar the claim:

[D]efendant Romero unreasonably delayed his bringing of

a cancellation proceeding and … his eight-year delay

demonstrates a lack of diligence on his part. The court

further finds that Defendant Romero’s delay has resulted

in both trial prejudice and economic prejudice to

Pro-Football, such that it would be inequitable to allow

Defendant Romero to proceed with his cancellation

petition.

Pro-Football, Inc. v. Harjo, 567 F. Supp.2d 46, 87 USPQ2d 1891, 1903 (D.D.C.

2008).

Petitioners appealed. The D.C. Circuit affirmed the decision of the lower

court on the issue of laches and stated that the petitioners “argue only that the

District Court improperly assessed evidence of prejudice in applying laches to the

facts at issue” and limited its decision “to that question.” Pro-Football, Inc. v.

Harjo, 565 F.3d 880, 90 USPQ2d 1593 (D.C. Cir. 2009). Thus, the D.C. Circuit

resolved the case solely on the issue of laches, never addressing the Board’s finding

of disparagement on the merits.

6

Cancellation No. 92046185

The Current Litigation

While Harjo was pending, six new individual petitioners filed a petition to

cancel the same registrations for the REDSKINS marks.8 Proceedings were

suspended pending the disposition of the Harjo civil action and resumed in March

2010.9

In March 2011, the parties stipulated, with certain exceptions, that the entire

Harjo record may be submitted into evidence through a Notice of Reliance.10 The

stipulation provides in pertinent part that:

1. Except as provided below, all evidence submitted with a Notice

of Reliance, as well as all deposition transcripts and exhibits

thereto submitted by any party, in Harjo … shall be admissible

in this proceeding unless the Trademark Trial and Appeal Board

ruled in Harjo that the evidence was not admissible, in which

case all arguments as to admissibility are preserved.

2. The Parties do not stipulate that any particular piece of

evidence described in paragraph 1 is relevant to any issue in

this proceeding, and therefore may object to evidence described

in paragraph 1 on grounds that it is not relevant.11

8 During this proceeding, petitioner Shquanebin Lone-Bentley withdrew her petition for

cancellation. TTABVue 24. The citations to “TTABVue” throughout the decision are to the

Board’s public online database that contains the proceeding file, available on the USPTO

website, www.USPTO.gov. The number represents the prosecution history number listed

in the electronic case file.

9 Board’s notice of suspension (TTABVue 6); notice of proceedings resumed (TTABVue 23).

10 Joint Stipulation Regarding Admissibility of Certain Evidence & Regarding Certain

Discovery Issues, dated March 11, 2011, and filed March 14, 2011 (TTABVue No. 31). In

Board proceedings there is no live testimony. Testimony is taken by deposition and the

resulting transcripts are filed with the Board. Other appropriate evidence is submitted

under a Notice of Reliance. Information regarding Board procedure may be found in the

Trademark Rules 37 C.F.R. §§ 2.101-2.136 and the TBMP both available on the USPTO

website www.uspto.gov.

11 Id.

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Cancellation No. 92046185

As stipulated, the parties only reserved the right to make objections based on

relevance to evidence earlier admitted into the Harjo record and admitted into this

case under paragraph 1. All other possible objections, including those based on

hearsay, were waived. This was confirmed from both parties at the oral hearing.

In view of the intense pretrial litigation engaged in by the parties in Harjo

and because the record created in that case was voluminous, the Board ordered the

parties to appear at a pretrial conference.12

In order to litigate this proceeding as efficiently as

possible, a pretrial conference will help the Board and the

parties focus the evidence and arguments at trial.13

After briefing by the parties, the Board issued another order setting forth the

applicable law relating to the issues of disparagement and laches involved herein.14

In regard to the former issue, the Board noted that the test for

disparagement comprises a two-step inquiry:

a. What is the meaning of the matter in question, as it

appears in the marks and as those marks are used

in connection with the goods and services identified

in the registrations?

b. Is the meaning of the marks one that may

disparage Native Americans?

Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1248; Harjo v. Pro-Football, Inc., 50

USPQ2d at 1740-41. See also, In re Geller, __ F.3d ___, 110 USPQ2d 1867, 1869

(Fed. Cir. 2014). Both questions are to be answered as of the various dates of

12 Board’s March 15, 2011 Order (TTABVue 32).

13 Id. at 2 (TTABVue 32, p. 2).

14 Board’s May 31, 2011 Order (TTABVue 40).

8

Cancellation No. 92046185

registration of the involved marks. Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1248;

Harjo v. Pro-Football, Inc., 50 USPQ2d at 1735, 1741. In deciding the second

question, whether the term “redskins” may disparage Native Americans, we look

not to the American public as a whole, but to the views of the referenced group (i.e.,

Native Americans). Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1247; Harjo v. Pro-

Football, Inc., 50 USPQ2d at 1739.15

The views of the referenced group are “reasonably determined by the views of

a substantial composite thereof.” Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1247

(quoting Harjo v. Pro-Football, Inc., 50 USPQ2d at 1739). A “substantial composite”

of the referenced group is not necessarily a majority of the referenced group. In re

Heeb Media LLC, 89 USPQ2d 1071, 1074 (TTAB 2008); In re Squaw Valley Dev. Co.,

80 USPQ2d 1264, 1279 n.12; cf. Ritchie v. Simpson, 179 F.3d 1091, 50 USPQ2d

1023, 1024 (Fed. Cir. 1999) (“Whether a mark comprises immoral and scandalous

matter is to be ascertained in the context of contemporary attitudes, and the

relevant viewpoint is not necessarily that of a majority of the general public, but of

a ‘substantial composite.’”) (quoting In re Mavety Media Group Ltd., 33 F.3d 1367,

31 USPQ2d 1923, 1925-26 (Fed. Cir. 1994)). What comprises a “substantial

composite” of the referenced group is a fact to be determined at trial. In making

this determination, “we are charged with taking into account the views of the entire

15 See id. at 8-11 (TTABVue 40, pp. 8-11).In our earlier order outlining the applicable law,

the statement that the perceptions of the general public are irrelevant refers to the

ultimate legal determination. It does not foreclose evidence of general perception. If, for

example, numerous dictionary definitions unanimously included a usage characterization

indicating a term is offensive, contemptuous, etc. that could be evidence of the general

perception of a term and could serve to support a finding that the referenced group finds

the term to be disparaging.

9

Cancellation No. 92046185

referenced group who may encounter [respondent’s services] in any ordinary course

of trade for the identified goods and services.” Heeb Media, 89 USPQ2d at 1075.16

Finally, any cancellation of a registration should be granted only with “due caution”

and “after a most careful study of all the facts.” Rockwood Chocolate Co. v. Hoffman

Candy Co., 372 F.2d 552, 152 USPQ 599, 601 (CCPA 1967) (internal citations

omitted).

THE RECORD

The record includes the pleadings, the files of respondent’s registrations by

operation of Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), deposition testimony of

each of the petitioners and the associated deposition exhibits, and nearly the entire

Harjo record (except for the deposition testimony of the Harjo petitioners), by

stipulation. The submissions from the Harjo record are listed in full in Appendix A

(for petitioners) and Appendix B (for respondents).17

As noted above, the parties only preserved the right to make objections in

this case based on relevance to any evidence earlier admitted into the Harjo record.

Respondent asserted 26 pages of relevancy objections. We have considered those

objections in weighing the evidence and specifically address them where we have

relied on evidence for our findings of fact. We do not rely on the Ross Survey and

16 See id. at 8-9 (TTABVue 40, pp. 8-9).

17 The record includes copies of newspaper articles, publications, resolutions, letters, and

other printed materials originally submitted and considered in the Harjo proceeding which

are dated, published or otherwise were disseminated prior to 1993. In Harjo, all of these

materials were submitted under Notices of Reliance by both parties. Despite the fact that

some of these materials (e.g., letters) are not properly introduced under Notice of Reliance,

because no party to that proceeding objected to the means of submission, the Board

considered the material as admitted into the record. Harjo v. Pro-Football, Inc., 50

USPQ2d at 1723.

10

Cancellation No. 92046185

therefore we do not address respondent’s various arguments with regard to that

piece of evidence.18

Petitioners’ objections to respondent’s evidence are overruled. As noted

above, on March 14, 2011, the parties filed a stipulation regarding the admissibility

of evidence in this case. In Harjo, the Board admitted the particular evidence to

which petitioners now object because neither party then objected to it coming in

under a Notice of Reliance. Harjo v. Pro-Football, Inc., 50 USPQ2d at 1721-23. The

Board specifically stated as to these documents and other documents upon which

respondent relies that it “has considered all such material of both parties as part of

the record in this case.” Harjo v. Pro-Football, Inc., 50 USPQ2d at 1723. While the

Board in Harjo discussed the hearsay nature of the evidence or lack of foundation, it

was admitted into the record; and the parties’ stipulation in this case waives all

objections, other than relevancy, as to this evidence. Thus, petitioners are estopped

from objecting to the evidence on any basis except relevance because the evidence

had been admitted in Harjo and, therefore, falls within paragraph No. 1 of the

stipulation noted above.

In their reply brief, petitioners assert that “[i]n addition to the waiver of the

hearsay objections, the news articles would fit within hearsay exceptions, including

the ancient records exception, so their content may be considered for the truth of

18 We do note generally that the survey would have very limited probative value. As the

Board noted in Harjo, 50 USPQ2d at 1734, the Ross survey is “a survey of current attitudes

towards the word ‘redskin(s)’ as a reference to Native Americans.” Therefore, the survey

does not directly measure the perceptions of Native Americans during the relevant time

frame.

11

Cancellation No. 92046185

the matters asserted.”19 While the ancient documents exception could provide

further support for reliance on various documents from both parties (newspaper

articles, letters, etc.), the contents of which would otherwise constitute hearsay, in

view of the waiver of hearsay objections it is not necessary to apply this exception.20

Finally, regarding the parties’ waiver of hearsay objections, courts have

routinely accepted and enforced such waivers, and relied on the evidence for the

truth of the matter asserted. “The presumption of waivability has found specific

application in the context of evidentiary rules. Absent some ‘overriding procedural

consideration that prevents enforcement of the contract,’ courts have held that

agreements to waive evidentiary rules are generally enforceable even over a party’s

subsequent objections.” U.S. v. Mezzanatto, 513 U.S. 196, 202 (1995), citing 21 C.

19 Pet’rs’ Reply Br. 9-10 (citing Fed. R. Evid. 803(16)) (TTABVue No. 184).

20 Under Rule of Evidence 803(16), “[s]tatements in a document in existence twenty years or

more the authenticity of which is established” are not considered hearsay, and therefore,

are not excluded by the hearsay rule. Id. Further, “[t]he ancient document exception

contained in Rule 803(16) . . . clearly applies to any document including letters, records,

contracts, maps, newspapers and certificates.” 4 Michael H. Graham, Handbook of Federal

Evidence § 803:16, at 405-06 (6th ed. 2006); see, e.g., Martha Graham Sch. & Dance Found.

Inc. v. Martha Graham Ctr. of Contemporary Dance Inc., 380 F.3d 624, 72 USPQ2d 1143,

1156 (2d Cir. 2004) (affirming lower court reliance on two letters for the truth of the

statements therein as admissible under Rule 803(16), the ancient-documents exception to

the hearsay rule, to determine copyright ownership of dances). See also Bell v. Combined

Registry Co., 397 F. Supp. 1241, 188 USPQ 707 (N.D. Ill. 1975), aff’d, 536 F.2d 164 (7th Cir.

1976) (allowing letters and newspaper articles from the 1930s and 1940s to determine a

copyright suit); Murray v. Sevier, 50 F.Supp.2d 1257, 1264 n.6 (M.D.Ala. 1999)

(interviewee's statements reported in a newspaper article admissible under Rule 803(16)),

vacated on other grounds, Murray v. Scott, 253 F.3d 1308 (11th Cir. 2001). “The

requirement of authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter in question is what its

proponent claims.” Fed. R. Evid. 901(a). Rule of Evidence 901(b)(8) states that an ancient

document may be authenticated by evidence that the document “(A) is in such condition as

to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic,

would likely be, and (C) has been in existence 20 years or more at the time it is offered.”

Fed. R. Evid. 901(b)(8). Rule of Evidence 902 provides that newspapers and periodicals are

self-authenticating. Fed. R. Evid. 902(6).

12

Cancellation No. 92046185

Wright & K. Graham, FEDERAL PRACTICE AND PROCEDURE (FPP) § 5039, pp. 207-08

(1977). “Courts have ‘liberally enforced’ agreements to waive various exclusionary

rules of evidence. Id. (quoting Note, Contracts to Alter the Rules of Evidence, 46

HARV. L. REV. 138, 139-140 (1933)). “[A]lthough hearsay is inadmissible except

under certain specific exceptions, we have held that agreements to waive hearsay

objections are enforceable.” Id. citing U.S. v. Bonnett, 877 F.2d 1450 (10th Cir.

1989) (hearsay objection waived by stipulation); see FPP § 5039.4 Estoppel and

Waiver – Withdrawal of Objections and § 5039.5 Estoppel and Waiver –

Stipulations and Contractual Waiver. See also U.S. v. Alazzam, slip op. No.

1:08cr101 (JCC) (E.D.Va. September 29, 2009), 2009 WL 3245392 (use of waiver

extended to a prosecution’s case in chief).21

STANDING

A plaintiff must show that it has a “real interest” in the outcome of a

proceeding in order to have standing. Ritchie v. Simpson, 50 USPQ2d at 1025. A

“real interest” in the proceeding is a legitimate personal interest in the opposition or

cancellation. Id., citing Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024,

213 USPQ 185, 189 (CCPA 1982).

21 While the content of newspaper articles is hearsay and in some cases, for example, where

an individual is quoted, presents a double hearsay problem, the waiver is applicable to all

levels of hearsay objections. In view thereof, we have considered the statements in the

newspaper articles. See Hope for Families & Community Service, Inc. v. Warren, 721

F.Supp.2d 1079, 1178 n. 114 (M.D.Ala. 2010) (consideration of content of newspaper

article). Finally, respondent itself relies on the statements made in various documents,

including letters and newspapers. See Cooper Hospital/University Medical Center v.

Sullivan, 183 F.R.D. 119 (D.N.J. 1998) (consideration of the content of newspaper articles

proper; where party itself relied upon the content of newspaper articles it waives the

objection).

13

Cancellation No. 92046185

Amanda Blackhorse is a member of the Navajo Nation.22 She testified that

she considers the term REDSKINS in respondent’s marks to be derogatory and is

offended by it.23

Phillip Martin Gover is a member of the Paiute Indian Tribe of Utah.24 He

testified that he perceives the terms REDSKIN and REDSKINS to be disparaging,

even in connection with respondent’s services.25

Courtney Tsotigh is a member of the Kiowa Tribe of Oklahoma.26 She

testified that she finds the term REDSKIN to be disparaging in any context

including for an “NFL team.”27

Marcus Briggs-Cloud is a member of the Muscogee Nation of Florida.28 He

testified that he finds the term REDSKINS in the registrations to be disparaging

and offensive.29

Jillian Pappan testified that she is a Native American.30 She testified, inter

alia, that the use of the term REDSKIN is analogous to the term “nigger,” and that

people should not profit by dehumanizing Native Americans.31

22 Amanda Leeh Blackhorse Dep. 127:8-9, 196:13-197:3, June 22, 2011 (TTABVue 122, pp.

135, 204-05).

23 Blackhorse Dep. 58:15, 120:11-121:4 (TTABVue 122, pp. 66, 128-29).

24 Phillip Martin Gover Dep. 10:9-13, June 16, 2011 (TTABVue 120, p. 16).

25 Gover Dep. 91:6-92:10, 94:15, 187:1-13 (TTABVue 120, pp. 97-98, 100, 193).

26 Courtney Tsotigh Dep. 8:2-17, 146:12-21, Oct. 25, 2011 (TTABVue 115, pp. 14, 152).

27 Tsotigh Dep. 113:12-15, 115:5-117:24, 146:22-147:7 (TTABVue 115, pp. 119, 121-23, 152-

53).

28 Marcus Anthony Briggs-Cloud Dep. 135:11-20 (TTABVue 110, p. 141). See also 69:16-

70:22, 136:8-139:7, June 23, 2011 (TTABVue 110, pp. 75-76, 109-11, 115, 120, 142-43).

29 Briggs-Cloud Dep. 63:16-29, 75:1-13, 103:3-105:11 (TTABVue 110, pp. 69, 81, 109-10).

14

Cancellation No. 92046185

In view of the foregoing, we find that each of the petitioners has established a

real interest, a personal stake, in the outcome of this proceeding and, therefore, has

standing. Respondent does not dispute the petitioners’ standing.

DISPARAGEMENT CLAIM

While this is the second petition asserting a claim of disparagement against

the same six registrations and the parties stipulated to the same record, this

proceeding presents significant differences from the first. The Harjo case asserted

other claims not present here, e.g., that the Native American imagery as well as the

word REDSKINS was scandalous to the general public and that the Board should,

in making its decision, apply the Indian Trust Doctrine.32

The determination of the disparagement claim at issue herein requires the

following two-step analysis:

a. What is the meaning of the matter in question, as it

appears in the marks and as those marks are used

in connection with the goods and services identified

in the registrations?

b. Is the meaning of the marks one that may

disparage Native Americans?33

30 Jillian Pappan Dep., pp. 49:4-5, 174:16-19, Aug. 11, 2011 (TTABVue 112, pp. 53, 61, 178).

31 Pappan Dep., pp. 48:24-50:6, 57:15-24, 173:9-174:4 (TTABVue 112, pp. 52-54, 61, 178).

32 As a result, the litigation generated an expansive record encompassing broader issues.

Like the dissent we acknowledge the criticisms of the District Court; however, in our review

of the record we believe that the weight and relevance of certain evidence became

obfuscated by the several issues raised in the Harjo case. Moreover, the hearsay objection

has been waived in this proceeding, which has resulted in a qualitatively different

evidentiary record for us to consider.

33 Section 2(a) prohibits registration of a mark “which may disparage … persons … or bring

them into contempt, or disrepute.” As held in the prior order of May 31, 2011, “for purposes

of this proceeding the guidelines for determining whether the mark is disparaging are

15

Cancellation No. 92046185

As confirmed by the parties at the oral hearing, it is already established that

(1) this disparagement claim only pertains to the term REDSKINS34 and (2) as to

“the meaning of the matter in question” “as used in connection with respondent’s

services, REDSKINS clearly both refers to respondent’s professional football team

and carries the allusion to Native Americans inherent in the original definition of

that word.”35 Harjo v. Pro-Football, Inc., 50 USPQ2d at 1742, rev’d on other

grounds, Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1249.

Moreover, as to the second point, the evidence overwhelmingly supports a

determination that the term REDSKINS as it appears in the marks retains the

meaning Native American. Two of the registrations include Native American

imagery. Registration No. 0986668 (top) and Registration No. 0987127 (bottom) are

shown below.

equally applicable to determining whether such matter brings persons or institutions into

contempt or disrepute.” TTABVue 40, p. 4. We, therefore, use the word disparage in this

case as an umbrella term for “may disparage … or bring them into contempt or disrepute.”

34As to the Native American imagery in two of the registrations, in the Harjo case the

Board found that “petitioners have not established, under Section 2(a), that this matter

may disparage Native Americans.” Harjo v. Pro-Football, Inc., 50 USPQ2d at 1743.

35 Respondent’s position that the term REDSKINS has a separate meaning as the name of a

football team does not affect the first prong of the test because even as the name of the

football team it retains the meaning Native American. See infra discussion of Squaw

Valley, 80 USPQ2d 1264.

16

Cancellation No. 92046185

The image of a Native American has appeared prominently as a logo on the

helmets of respondent’s Washington Redskins’ team uniforms, as demonstrated by

the images below of its former players John Riggins in Super Bowl XVII in 1983

(left) and Doug Williams in Super Bowl XXII in 1988 (right).

36 37

The Washington Redskins marching band had worn Native American

headdresses as part of its uniforms between the 1960s and the 1990s, as shown in

the image below from the 1980s.

36SUPER BOWL XVII: HOG DAY AFTERNOON (NFL Films 1983), Petitioners’ Notice of

Reliance, Ex. 103 (TTABVue 95, p. 70).

37 AMBUSH AT SUPER BOWL XXII (NFL Films 1988), Petitioners’ Notice of Reliance, Ex. 104

(TTABVue 95, p. 72).

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38

The Redskinettes also had appeared wearing costumes suggestive of Native

Americans, as shown in the 1962 photograph of them reproduced below, which

contained the title “Dancing Indians” and the caption “Here are the Redskinettes all

decked out in their Indian garb and carrying Burgundy and Gold pom-poms.”

39

Between 1967 and 1979, the annual Washington Redskin press guides,

shown below, displayed American Indian imagery on the cover page.

38 HAIL TO THE REDSKINS 1937-1988 (NFL Films 1988), Petitioners’ Notice of Reliance, Ex.

95 (TTABVue 95, p. 54).

39“Dancing Indians,” Redskins (magazine), Oct. 7, 1962, at 15, Petitioners’ Notice of

Reliance, Ex. 29 (TTABVue 52, p. 17).

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40 41

Respondent has made continuous efforts to associate its football services with

Native American imagery.

As confirmed by the District Court:

Meaning of the Matter In Question … “This is not a case where,

through usage, the word ‘redskin(s)’ has lost its meaning, in the field of

professional football, as a reference to Native Americans in favor of an

entirely independent meaning as the name of a professional football

team. Rather, when considered in relation to the other matter

comprising at least two of the subject marks and as used in connection

with respondent’s services, ‘Redskins’ clearly both refers to

respondent’s professional football team and carries the allusion to

Native Americans inherent in the original definition of that word.” Id.

Based on the record before the TTAB, the Court finds that this

conclusion is supported by substantial evidence. Pro-Football, Inc. v.

Harjo, 68 USPQ2d at 1248-1249 quoting Harjo v. Pro-Football, Inc., 50

USPQ2d at 1742.

40 1967 Redskins Press Guide, Petitioners’ Notice of Reliance, Ex. 29 (TTABVue 54, p. 28).

41 1979 Redskins Press Guide, Petitioners’ Notice of Reliance, Ex. 29 (TTABVue 74, p. 21).

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The term REDSKINS in the registered marks when used in connection with

professional football retains the meaning Native Americans. Thus, the first prong

of the test, “what is the meaning of the matter” is established.

The only issue left for decision is the second question in the disparagement

test (was the meaning of the marks, at the times of the registrations, one that may

have disparaged Native Americans?) as it pertains to the term REDSKINS.42

Having narrowed the issue to be determined, it is now necessary to

understand what type of disparagement case the facts of this limited case present.

We must make our determination in the context of a respondent’s goods or services.

Such context can:

(1) turn an innocuous term into a disparaging one, see In re Lebanese Arak

Corp., 94 USPQ2d 1215, 1223 (TTAB 2010) (likely meaning of KHORAN is

the Islamic holy text and use for wine disparages religion and beliefs of

Muslim Americans); see also Doughboy Industries, Inc. v. The Reese Chemical

Co., 88 USPQ 227 (Exm’r in Chief 1951) (Doughboy refers to World War I

42 In the Harjo case, on appeal, the District Court noted its concern about the breadth of the

issues presented noting: “Under the broad sweep of the TTAB's logic, no professional sports

team that uses Native American imagery would be permitted to keep their trademarks if

the team's fans or the media took any action or made any remark that could be construed

as insulting to Native Americans. The Court cannot accept such an expansive doctrine;

particularly when premised on a finding that is not supported by any substantial evidence.

... This is undoubtedly a ‘test case’ that seeks to use federal trademark litigation to obtain

social goals.” Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1254, 1262. In contrast, this case

presents a much narrower issue and pertains only to the word REDSKINS. With regard to

the District Court’s observation about “social goals,” the underlying purpose of this portion

of the Trademark Act is, in effect, a social goal as legislated by Congress, to keep matter

that would disparage others off of the register. The statutory requirement to remove

disparaging matter from the register is not obfuscated in the present case by peripheral

issues.

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American soldier as reinforced by picture of soldier on packaging and use on

“a prophylactic preparation for the prevention of venereal diseases”

disparages the soldiers); or

(2) strip the disparaging meaning from an otherwise disparaging term, see

Squaw Valley, 80 USPQ2d 1264, 1267 (SQUAW when used with ski-related

goods means only the geographic location Squaw Valley ski resort and does

not retain the meaning Native American woman under the first part of the

test, and, as such is not disparaging; but as to non-ski-related goods and

services the meaning remains Native American woman, i.e., the goods and

services did not change the meaning, and the evidence was sufficient to

support the second prong of the test that the term is considered disparaging

as the term is used in connection with the identified goods or services); or

(3) have no effect on a term’s disparaging meaning, see Heeb Media, 89

USPQ2d 1071, 1077 (applicant’s good intent and inoffensive goods and

services do not obviate finding that HEEB is disparaging in context of the

goods and services; and disagreement within the referenced group does not

erase the perception of those who find it disparaging).43

43 There is no case in our review where a term found to be a racial slur in general was found

not to be disparaging when used in the context of specific services. The District Court in

Harjo noted that “[t]he ultimate legal inquiry is whether the six trademarks at issue may

disparage Native Americans when used in connection with Pro-Football’s services and

during the relevant time frame . . . [t]he ultimate legal inquiry is not whether the term

‘redskins’ is a pejorative term for Native Americans.” Pro-Football, Inc. v. Harjo, 68

USPQ2d at 1252. This does not mean that if the record shows that the term is pejorative,

or a racial slur, that such a showing could not add to the evidence supporting a finding that

a substantial composite of the referenced group find it disparaging, even when used solely

with the recited services. Moreover, if a term is found to be a racial slur, then it may be

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possible to find the term disparaging in the context of the specific services without evidence

as to the specific services. In Squaw Valley, in making a determination regarding the

second prong of the disparagement test, the Board relied on evidence that showed the

“opinions of Native Americans regarding the term are not limited to particular contexts.”

Squaw Valley, 80 USPQ2d at 1276.

Thus, if it is shown that a term is generally disparaging, e.g., a racial slur, in any context,

that includes the specific context of the subject goods or services, and to that extent the

comment by the District Court as to the ultimate legal determination does not limit the

avenues by which a deciding court or tribunal arrives there. See Heeb, 89 USPQ2d at 1077

(“[A] term is considered to be disparaging by a substantial composite of the referenced

group, regardless of context, including in connection with applicant’s identified goods and

services.”)

As noted by the Board in Squaw Valley, in the context of an ex parte proceeding we are by

necessity limited to inferential evidence. In the context of an inter partes proceeding, the

parties are not so limited and may present direct evidence, but that does not render indirect

evidence non probative. In particular, with a claim of disparagement of a referenced group

brought by individuals, the individual plaintiffs may testify as to their perceptions

regarding a term and the context of the specific services, but to prove it is disparaging to a

substantial composite of the group, more general evidence can be probative. The

hypothetical evidentiary dilemma posed by the Board in Squaw Valley, the difficulty of

finding statements about use in connection with paperclips, is also applicable to the inter

partes context. Squaw Valley, 80 USPQ2d at 1277 n. 9. Thus, just as in an ex parte context

where a term may be found to be generally disparaging in any context and prohibited from

registration for a specific context, even absent evidence of the referenced group making a

statement as to that specific context, such an evidentiary record may also be sufficient in an

inter partes case.

Respondent’s expert, Dr. Ronald Butters (discussed infra), sheds some light on this issue.

On the one hand he testifies that disparagement is tied to intent when considering the term

redskins, which includes the context of use, but that the word nigger is inherently

disparaging regardless of context and presumably intent. Butters Dep. pp. 279:19-25 –

280:2-22 (TTABVue 163, p. 92) (Q. Sir, let’s talk for a moment about your views as to the

meaning of the word disparaging. Is it your testimony that disparaging means – excuse

me, includes an intent to belittle or to demean? A. That is correct. Q. So there’s some

intentionality involved in the word disparaging: A. Yes. Q. And that refers to the intention

of the speaker? A. Yes. Q. You also testify, sir, that the word nigger is a disparaging word;

is that correct? A. Yes. Q. The word nigger itself has no intentions, correct? A. Correct. Q.

The word itself has no ability to form any intentions; is that correct? A. Of course. Q. Yet

you say that the word itself is disparaging; is that correct? A. The word nigger is a

disparaging word in the English language, yes.”). Thus, if the evidence regarding the

inherent nature of the term is strong (or as Mr. Barnhart, respondent’s other expert

discussed infra, explains that while no word is intrinsically offensive, overwhelming

offensive usage would merit a usage label, Barnhart Dep. p. 44, (TTABVue 159, p. 47)), that

would be probative of disparagement in any context to the perception of the referenced

group within the context of the specific services without direct evidence.

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Here, petitioners assert that REDSKINS is a racial slur, thus the facts do not

present the Doughboy case because it is not allegedly an innocent term where the

nature of the goods or services renders the mark disparaging. The facts also do not

fall within the part of the Squaw Valley case where the Board reversed the refusal

as to the ski-related gear because it did not pass the first prong of the test inasmuch

as the word lost its allusion to Native American women when used in the ski

context due to the geographic location called “Squaw Valley” and the well-known ski

resort located there. Here, it is conceded by the parties and established by the

record that the term REDSKINS retains its meaning “Native American” even when

used with respondent’s services.

Turning back, then, to the issue in this case, namely, whether the term

REDSKINS was disparaging at the time of registration, the services do not have an

effect on the meaning of the term, i.e., the first prong. The question is only as to the

second prong, whether the term is disparaging. The facts of this case demonstrate

the type of disparagement presented in Heeb and the non-ski-related goods and

services portion of Squaw Valley. In other words, respondent’s alleged honorable

intent and manner of use of the term do not contribute to the determination of

whether a substantial composite of the referenced group found REDSKINS to be a

disparaging term in the context of respondent’s services during the time period

1967-1990, because the services have not removed the Native American meaning

from the term and intent does not affect the second prong. If it is found to be

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disparaging during the relevant time period, then the Trademark Act mandates

removal from the register.44

In presenting their case, petitioners laid out two categories of evidence to

prove that the term REDSKINS, even when considered solely as used with football

and cheerleading services, was disparaging during the relevant time periods: (1) a

general analysis of the word; and (2) the specific views of the referenced group. In

some instances these two types of evidence intersect.

As noted above, the prior Harjo case encompassed more issues as reflected by

the pleadings and illustrated by the voluminous and wide-ranging record. We only

focus on the evidence that most directly reflects the sentiments of Native

Americans. In particular, concerning the general analysis of the word, we focus on

the testimony and reports provided by the parties’ respective experts, dictionary

definitions and reference books. For the specific views of Native Americans, we

focus on the National Congress of American Indians’ (“NCAI”) 1993 Resolution 93-

11, the deposition of NCAI Executive Director, Ms. JoAnn Chase, the deposition of

Harold Martin Gross, and various newspaper articles, reports, official records and

letters.

Expert Reports

Dr. Geoffrey Nunberg served as petitioners’ expert witness in linguistics,

specializing in lexical semantics (“the study of the use of words and lexicography”).45

44 As noted above, the Board’s jurisdiction is limited to the question of registrability. The

Board does not have the power to enjoin use.

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Dr. Ronald R. Butters served as respondent’s linguistic expert witness,46 specifically

tasked by respondent to research “the evolving history of the meaning of the term

redskin in American English.”47 David K. Barnhart was respondent’s expert

witness in lexicography, whom respondent asked to evaluate “the term redskins in

the current American usage, particularly in the context of sports.”48 The record

establishes that each of these witnesses is qualified to testify regarding the term

“redskin” within the context of their specialties.49

45 Geoffrey Nunberg earned a Ph.D. in linguistics from City University of New York, served

as a Consulting Professor of Linguistics at Stanford University and a principal scientist at

Xerox Palo Alto Research Center, and served as an editor and chair of the usage panel for

the American Heritage Dictionary. Geoffrey D. Nunberg Dep. 229:15-25, 230:8-12, Feb. 18,

1997 (“Nunberg 2/18/97 Dep.”) (TTABVue 81, pp. 122-23); Nunberg Dep. Ex. 32 (TTABVue

108, pp. 95, 99). Dr. Butters, respondent’s expert witness, opined that Dr. Nunberg has a

good reputation and is an expert in the field of linguistics. Butters Dep. 73:-74:, Dec. 20,

1996 (TTABVue 163, p. 23).

46 Ronald R. Butters earned a Ph.D. in English with a concentration in linguistics, served as

Professor of English at Duke University and co-chaired its linguistics program, and served

as chief editor of American Dialect Society publications. Ronald R. Butters Dep. 8:22-25,

9:22-23, 10:13-25, Dec. 20, 1996 (“Butters 1996 Dep.”) (TTABVue 163, pp. 6, 7); Butters

Dep. Ex. 1 (TTABVue 164, p. 4).

47 Butters 1996 Dep. 23:10-14 (TTABVue 163, p. 10).

48 David K. Barnhart Dep. 5:11-12, 24:5-9 (TTABVue 159, pp. 8, 27); Barnhart Dep. Ex. 2

(TTABVue 162, p. 14). Mr. Barnhart was a general editor at Clarence L. Barnhart, Inc., a

“small dictionary house” between 1966 and 1980, and at the time of his deposition, was the

founder and owner of Lexik House Publishing, a publisher of the Barnhart Dictionary

Companion, “a quarterly journal that updates dictionaries.” Barnhart Dep. 13:1-14:14,

20:25-21:20) (TTABVue 159, pp. 16, 23-24); Barnhart Dep. Ex. 2 (TTABVue 162, p. 14). Mr.

Barnhart did not survey or evaluate Native Americans’ reaction to the use of the term

“redskins.” His research “involved more general English usage than targeting a particular

ethnic group.” Barnhart Dep. 62:10-25 (TTABVue 159, p. 65).

49 None of the experts specifically researched Native American viewpoint of the word

“redskin(s)” in connection with football-related services during any time period.

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Cancellation No. 92046185

We focus on those parts of the expert reports and testimony concerning the

derivation of the word redskin(s), dictionary usage labels and usage of the term

“redskin(s)” over the years in various media.50

1. Derivation of the Word “Redskin(s)” as Reference to Native Americans

Mr. Barnhart explains that “[t]he original (or core) meaning of the word

redskin identifies the race of people found by colonizing Europeans in the 16th and

17th Centuries.”51 In his report Mr. Barnhart confirms that “redskin(s)” as an

ethnic term refers to skin color:

It is reasonable to expect people upon encountering something new to

use a term which bears on its use, size, appearance or other

characteristic feature. The word red appears in a large number of

terms in English. It should be noted that there is another meaning for

redskin descriptive of a variety of potato. In the case of the potato it is

because of its color. In the case of the people living in North America

50 Mr. Barnhart and Dr. Butters offered conclusions that the term “redskin(s)” has taken on

a secondary meaning as the name of respondent’s team. See Barnhart Dep. Exh. 3

(TTABVue 162 pp. 18-19) (“There is ample evidence to support the position that Redskins

has acquired secondary meaning in the context of sports. . . . The collected evidence

indicates that the use of the term redskin in the context of sports is overwhelmingly more

significant that [sic] the use of the term in its core meaning. . . . It is my conclusion based

on the examination of evidence of usage consistent with the practice of lexicography and

linguistics that the term Redskins as used by the Washington Redskins has acquired

secondary meaning separate from the usage associated with the North American Indians.”)

See also Butters 1996 Dep., pp. 23-24 (TTABVue 163, 10) (“I think the major change began

with the inception of the Washington Redskins football team in the 1930s. As that team

evolved and as professional football grew more and more popular and influential in

American popular culture, the term Washington Redskins, in general the larger term

Washington Redskins, and then more particularly the shortening of Washington Redskins

to Redskins began to take on a meaning of its own identified with the football team. So

that this secondary meaning became a very important meaning for the term itself.”)

However, this evidence goes to the first prong of the test where it is found and conceded

that the asserted “secondary meaning” retains the “core meaning” Native American.

Because REDSKINS used in connection with respondent’s services while meaning a football

team, retains its “core meaning” identifying a “race of people,” the meanings are not legally

separate for the purposes of determining disparagement under Section 2(a).

51 Barnhart Expert Report (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, p. 18).

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upon the arrival of Europeans it was likewise based upon

appearance. . . . In recent years the sensitivities of these people have

caused some speakers of English to adjust their usage of some of these

terms accordingly. . . . The naturalness of the construction of the word

redskin is underscored by the presence in the language of other terms

with reference to color in describing the appearance of a person’s skin.

Blue skin is a 19th Century term used to describe blacks. See for

instance Grose 1796 edition where he defines blue skin as “a person

begotten of a black woman by a white man. One of the blue squadron;

any one having a cross of the black breed, or, as it is termed, a lick of

the tar brush.” . . . Another example of this genre is darkskin for a

black. Still other examples include yellow-skin for an Asian, black-

skinned and brown-skinned for blacks.52

In extrapolating on the concept of the use of skin color in language Mr.

Barnhart testifies as follows:

Q. Do you know the word darky?

A. Yes.

Q Is that word natural in its construction insofar as it applies to

complexion?

A. Yes.

Q. Is it offensive to African-Americans?

A. It can be.

Q. Is it derogatory?

A. Depending on the context, yes. But I haven’t evaluated the

context of darky particularly, so I would want to see some more

examples and evaluate what evidence I could accumulate, yes.53

The record includes two works by Irving Lewis Allen who Dr. Butters testifies

is a sociologist “who has given some thought to language” and is “certainly a

52 Barnhart Expert Report (TTABVue 162, p. 21).

53 Barnhart Dep. pp. 71-72 (TTABVue 159, pp. 74-75).

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respectable scholar.”54 We particularly point to the following excerpt from his book

Unkind Words: Ethnic Labeling from Redskin to WASP (Bergin & Garvey 1990) p.

18:

Nearly half of all interracial slurs ...refer to real or imagined physical

differences. ... Most references to physical differences are to skin color,

which affirms what we have always known about the significance of

color in human relations. Asian groups were called yellow this and

that and Native Americans were called redskins, red men, and red

devils.55

2. Dictionary Usage Labels for “Redskin” Entries

The record includes several dictionary definitions (submitted separately or

within the contexts of the expert reports) published during the relevant time frame

of 1967 through 1990. A representative sample is set forth below:

a. RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1204 (1967):56

redskin n. Often Offensive. a North American Indian.

RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1204 (1973):57

redskin n. Often Offensive. a North American Indian.

RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1618 (2d ed.

1987):58

redskin n. Slang (often disparaging and offensive). a

North American Indian.

54 Butters 1996 Dep. 72:15-23, Dec. 20, 1996 (TTABVue 163, p. 22).

55 Irving Lewis Allen, Unkind Words: Ethnic Labeling From Redskin To Wasp (Bergin &

Garvey 1990), Petitioners’ Notice of Reliance, Ex. 57 (TTABVue 87 p. 20). See also Allen,

Irving Lewis, The Language of Ethnic Conflict Social Organization and Lexical Culture

(Columbia University Press 1983) p. 51 (Redskin listed as an ethnic epithet for Native

American) Petitioners’ Notice of Reliance Ex. 1 (TTABVue 63, p. 41).

56 Petitioners’ Notice of Reliance, Ex. 1 (TTABVue 62, p. 171).

57 Petitioners’ Notice of Reliance, Ex. 1 (TTABVue 63, p. 11).

58 Petitioners’ Notice of Reliance, Ex. 1 (TTABVue 63, p. 48).

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b. HBJ SCHOOL DICTIONARY (1977):59

redskin n. A North American Indian.

c. WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY OF THE ENGLISH

LANGUAGE UNABRIDGED 1513 (2d ed. 1977):60

red’skin, n. a North American Indian; so called from the

reddish or coppery color of the skin.

c. WORLD BOOK DICTIONARY, VOL. 2 1752 (1979):61

redskin (red’skin’), n., adj. North American Indian: We

have had more difficulty with white desperadoes than with

redskins (Theodore Roosevelt).

d. OXFORD AMERICAN DICTIONARY 564 (1980):62

redskin n. (contemptuous) a North American Indian.

e. OXFORD ENGLISH DICTIONARY 429 (2d ed. 1989):63

redskin. Also red-skin [See RED a. 5c.] 1. A North

American Indian. (Not the preferred term.).

We further note the earliest restrictive usage label in dictionary definitions

in Mr. Barnhart’s report dates back to 1966 from the Random House Unabridged

First Edition indicating REDSKIN is “Often Offensive.” From 1986 on, all of the

entries presented by Mr. Barnhart include restrictive usage labels ranging from

“not the preferred term” to “often disparaging and offensive.”64

All of the experts referenced, either by testimony or in their expert reports,

the seminal work in lexicography, Dictionaries: The Art and Craft of Lexicography,

59 Nunberg Dep. Ex. 9 (TTABVue 83, p. 103).

60 Nunberg Dep. Ex. 14 (emphasis in original) (TTABVue 83, p. 118).

61 Nunberg Dep. Ex. 13 (emphasis in original) (TTABVue 83, p. 116).

62 Petitioners’ Notice of Reliance, Ex. 1 (TTABVue 63, p. 18).

63 Petitioners’ Notice of Reliance, Ex. 1 (emphasis in original) (TTABVue 63, p. 57).

64 Barnhart Expert Report (June 8, 1996), Barnhart Dep. Exh. 3 (TTABVue 162, p. 27).

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written by Sydney I. Landau and first published in 1984.65 Mr. Barnhart, the

lexicographer, explained that usage labels are a “[r]eflection of the opinion of the

editor in chief … But some people that are in lexicography have been known to be

less stalwart and have caved into suggestions from non-editorial sources.”66 He

explains that “unlabeled terms are standard and labeled terms are labeled for some

particular character.”67 Mr. Barnhart explained that the “basic and longstanding

practice in lexicography which deals with noteworthy ranges of usage of any given

entry term is to label those instances of terms when the usage deviates from

‘Standard English.’ ”68 According to Mr. Barnhart, a term is generally “assumed to

be ‘Standard’ if it is unlabeled.”69 However, there are times when a word “is worthy

of special attention, a label (usually in italic type) is included in the entry.”70

Mr. Barnhart explains that there is no standardized method in the field of

lexicography regarding restrictive usage labeling.

65 See Barnhart Expert Report pp. 9, 18-19 (unnumbered) (quoting Sydney Landau,

Dictionaries: The Art & Craft of Lexicography (1984)), Barnhart Dep. Ex. 3 (TTABVue 162,

pp. 26, 35-36); Butters Expert Report 5-6, 16 (June 7, 1996) (citing Sydney Landau,

Dictionaries: The Art & Craft of Lexicography (1984)), Respondent’s Notice of Reliance, Ex.

9 (TTABVue 129, pp. 41-42, 52); Nunberg 2/18/97 Dep. 331:13-332:25 (TTABVue 81, pp.

224-25).

66 Barnhart Dep. p. 22, (TTABVue 159 p. 25).

67 Barnhart Dep. p. 45 (TTABVue 159 p. 48.

68Barnhart Expert Report 8 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, p. 25).

Barnhart stated that “Standard English” is basically English that “is acceptable in

business, normal communications between people, that is, everyday conversation, letter

writing, telephone conversation where no particular special connotation is associated . . . in

the context under consideration.” Barnhart Dep. 36:17-23 (TTABVue 159, p. 39).

69 Barnhart Expert Report 8 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, p. 25).

70 Id.

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There are no agreed upon criteria for finding some usages

vulgarly offensive or contemptuous or abusive. There are

few studies that shed any light on the degree of

offensiveness of specified terms under specified

conditions.71

Each expert points to the influence of outside forces, or “pressure groups” on

the adoption of usage labels by dictionary editors. For example, Dr. Butters

testifies that sociologists, historians, and anthropologists applied “sociopolitical

pressure” regarding the use of the term “redskin” on dictionary editors and “that

any dictionary that labels redskin as a derogatory term is doing so, at least

indirectly, as a result of, at least in large part, sociopolitical pressure.”72 This

phenomenon is also recognized in the reference works relied on by the experts.73

As part of his research, Mr. Barnhart reviewed dictionary entries for the term

“redskin” between 1859 and 1992. He found no restrictive usage labels for the term

“redskin” in any dictionaries prior to 1965.74 Beginning in 1966 Mr. Barnhart’s

reviewed dictionary entries start to include usage labels indicating the term is

offensive. See Random House Unabridged (1st ed. 1966). From that time on, more

publishers include such labels at an increasing rate. By 1983, all of Mr. Barnhart’s

71 Barnhart Expert Report 9 (unnumbered) (quoting Sydney I. Landau, Dictionaries: The

Art and Craft of Lexicography (1984)), Barnhart Dep. Ex. 3 (TTABVue 162, pp. 26).

72 Butters 1996 Dep. 61:7-11, 63:22-64:2 (TTABVue 163, p. 20); Butters Expert Report p. 5

citing Sydney I. Landau, Dictionaries: The Art and Craft of Lexicography (1984) (TTABVue

162 p. 69) (“In addition, what constitutes a significant-enough semantic change to warrant

the revision of a dictionary entry is often a judgment call, one which is furthermore highly

subject to overt and covert sociopolitical pressures, especially where possible changes in

connotation and usage are concerned.”)

73 Butters Dep. pp. 61-64 (TTABVue 163, p. 20).

74 Barnhart Expert Report 9-11 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, pp. 26-

28). Mr. Barnhart reviewed twenty dictionaries published between 1946 and 1964. Id.

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examples include a usage label indicating it is offensive.75 Mr. Barnhart’s

conclusion only references labels that use the word disparaging:

Since 1966, the labeling of the term has been erratic at worst and

inconsistent at best. Of the twenty-eight dictionaries consulted which

appeared between 1966 and 1992, ten editors reported the term as

“standard English”. Only two dictionaries have identified the term

redskin as “disparaging”.76

However, we consider the usage labels that employ the term “offensive” also

to support the legal conclusion under Section 2(a) that a term is “disparaging.”

Therefore, Mr. Barnhart’s conclusion is based on too narrow a construction because

he views the label “disparaging” as requiring intent.77 As noted above, for the

purposes of our legal review intent does not figure into the equation. More

significantly, we disagree that the labeling is erratic and inconsistent. Rather it

75 The report includes a listing for Thorndike-Barnhart Dictionaries that indicates that

their World Book Dictionary “1969-1992” had no label but their Intermediate Dictionary

included a label starting in 1974. It is unclear which specific years the World Book

Dictionary was actually published or if the range of years simply indicates the time period

before a next edition issued and we do not include that reference in our calculation. The

1989 Oxford English Dictionary has the usage label “not the preferred term”; however, the

1980 Oxford American Dictionary includes the more direct usage label “contemptuous.” We

include “not the preferred term” in the category of restricted usage, but also find this

dictionary less probative than the one directed specifically to American usage.

76 Id. at 30.

77 “When labeling a word as disparaging, lexicographers are trying to determine the

speaker’s intent, and when labeling a word as offensive, they are assessing a hearer’s

response to it.” Barnhart Expert Report (quoting John McCluskey, Dictionaries and

Labeling of Words Offensive to Groups With Particular Attention to the Second Edition of

the OED, 11 Dictionaries: J. of the Dictionary Soc’y of N. Am. 119 (1989), Barnhart Dep Ex.

3 (TTABVue 162, p. 26). See also Barnhart Dep. pp. 51-52 (TTABVue 159, pp. 54-55)

(“Offense is something – disparaging and derogatory tend to refer to the speaker and to the

mental baggage that person is carrying along with him. Offensive tends to refer to the

hearer and the mental baggage that person is carrying along with him. By ‘mental

baggage’, I mean their experience with the language and how they use it and how they feel

about it.”)

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shows a clear trend beginning in 1966 to label this term as offensive and by 1986

the dictionaries are unanimous.

Mr. Barnhart also found that among dictionary editors’ labels “there has been

a sensitivity to how people react to that term [redskin] now.”78 In his expert report,

Mr. Barnhart made the following conclusion based on his evaluation of the term

“redskin” as it appears in various dictionary entries during the relevant time frame:

[T]he use of the term redskin, in its core meaning and as

recorded in dictionaries, is usually recognized among

lexicographers as ‘Standard English’ which means that it

is acceptable in both formal and informal speech or

writing of educated people.79

This conclusion stands in contrast to the trend in usage labels during the

relevant time period discussed above and the severe drop-off in usage discussed

below. It is also contradicted by his statement in the same report that:

The record of dictionary editors’ opinions as reflected in the labeling of

usage for the term redskin suggests that during the latter third of this

century there has developed some change in the perceived usage of the

term.80

We further note Mr. Barnhart is addressing usage by the general population and

not from the viewpoint of Native Americans.

In his expert report, Dr. Butters opined that “sporadic labeling of redskin as

‘offensive’ is of dubious value in assessing the tone and full meaning of redskin(s) in

78 Barnhart Dep. 63:5-5 (TTABVue 159, p. 66).

79 Barnhart Expert Report 14 (unnumbered), Barnhart Dep., Ex. 3 (TTABVue 162, p. 31).

80Barnhart Expert Report 8 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, p. 25)

(emphasis in the original).

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Cancellation No. 92046185

past and present American culture.”81 Dr. Butter’s ultimate conclusion is of limited

probative value in that it pertains to general “American culture” rather than to the

Native American viewpoint. In 1996, Dr. Butters testified as to the following:

In the last 10 or 15 years, one begins to see in dictionaries

the—in some dictionaries the labeling of the term redskin

as sometimes offensive. One also begins to see in very

recent years references to the use of the term redskin as a

possibly offensive term. So that there is this, what I

would say—my conclusion is a very recent incipient

change.82

This statement recognizes the trend in usage labels during a portion of the

relevant time period.

3. Use of the term Redskins in Various Media

The record shows wide usage of the term in various media prior to the late

sixties and very sporadic usage thereafter. A few examples are set forth below:

Merrit Meets the Enemy. Victory over our Frontier Foes. Thirty-

Seven Redskins Sent to the Happy Hunting Grounds. The Indian

Problem Reaching a Conclusion. Rocky Mountain News (October 8,

1879);83

And excited by firewater they dug up their rusty hatchets and

prepared for blood and thunder. ‘Ugh,’ said every greasy redskin …

Rocky Mountain News (November 19, 1890);84

“Fort Wicked” Too Tough for Redskins . . . Headline from Rocky

Mountain News (October 21, 1931);85

81 Butters Expert Report 4, Respondent’s Notice of Reliance, Ex. 9 (TTABVue 129, p.40).

82 Butters 1996 Dep. 24:11-18 (TTABVue 163, p. 10).

83 Nunberg Expert Disclosure p. 8 (TTABVue 83, p. 67).

84 Id.

85 Nunberg Expert Disclosure p. 9 (TTABVue 83, p. 68).

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“Good luck, get a redskin for me.” Excerpt from the 1940 movie

Northwest Passage;86

“There is reason in her words!” at length broke from his compressed

and trembling lips; “ay, and they bear the spirit of Christianity; what

might be right and proper in a redskin, may be sinful in a man who

has not even a cross in blood to plead for his ignorance.”87

Indian Fights on the Texas Frontier: A True Account of the Last

Exciting Encounters with Redskins in Hamilton, Comanche, Brown,

Erath and Adjoining Counties (Fort Worth: Pioneer Pub. Co. 1927);

Fighting Rebels and Redskins: Experiences in Army Life of Colonel

George B. Sanford, 1861-1892 (Univ. of Oklahoma Press 1969);

Bluecoats and Redskins: The United States Army and the Indian 1866-

1891 (London: Cassall, 1975); Flashman and the Redskins (New York:

Knopf/Random House 1982).88

Dr. Nunberg conducted several searches of an electronic database featuring

articles from major newspapers and magazines published between approximately

1975 through 1989 to glean information about use of the word “redskins” in the

context of Native Americans.89 According to Dr. Nunberg, “newspapers and

television use have a particular influence on the way words are used and [help]

shape the general impressions of the meanings of those [words].”90

86 Id.

87 Barnhart Expert Report (TTABVue 162, p. 24) (quoting a 1979 edition of James Fenimore

Cooper’s The Last of the Mohicans. This book was first published in 1846). See Butters

Expert Report p. 7 (TTABVue 129, p. 43).

88 Butters Expert Report (TTABVue 129, p. 45). These are titles of various books referenced

by Dr. Butters. We note the publisher of the last title in 1982, Random House, since 1966

has included the usage label “often offensive” in its dictionaries. See Barnhart Report

(TTABVue 162, p. 27).

89 Nunberg 1996 Dep. 6:2-21, 149:11-12, 151:18-20 (TTABVue 98, p. 133, TTABVue 99, pp.

101, 103); Nunberg 2/18/97 Dep. 305:10-306:8 (TTABVue 81, pp. 198-99).

90 Nunberg 2/18/97 Dep. 275:1-4 (alteration added) (TTABVue 81, p. 168).

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Dr. Nunberg reported that the database search results showed 136,473

instances of “redskin,” “redskins,” and other words beginning with “redskin,” such

as “redskinnettes,” with the “vast majority” involving references to the Washington

Redskins.91 Dr. Nunberg then conducted a focused search, filtering out terms such

as “team,” “sport,” “Redskin Park,” “football,” “game,” “fan,” and “ticket,” to yield

results of those instances when the word “redskin” was used to refer to a Native

American person.92 This search resulted in approximately 300 references, although

some of these still referred to the Washington Redskins, potatoes and peaches.93

Dr. Nunberg reviewed the focused search results by hand and found “71

distinct stories in which the word was used to refer to Indians.”94 According to Dr.

Nunberg, none of these 71 occurrences demonstrated use of “redskin” as a standard

term to refer to a Native American,95 indicating that “the word is not a ‘neutral

synonym’ for Indian”96 Of those occurrences, many examples use the term in the

context of racial slurs or discrimination, for example:

91 Nunberg 2/18/97 Dep. 305:17-24 (TTABVue 81, p. 198); see Nunberg 1996 Dep. 150:21-

151:1 (TTABVue 99, pp. 102-03).

92Nunberg 1996 Dep. 151:17-152:8 (TTABVue 99, pp. 103-04); Nunberg 2/18/97 Dep.

305:25-306:25 (TTABVue 81, pp. 198-99).

93Nunberg 1996 Dep. 152:9-14 (TTABVue 99, 104); Nunberg 2/18/97 Dep. 305:25-306:8,

307:1-2 (TTABVue 81, 198-200).

94Nunberg 2/18/97 Dep. 307:3-8 (TTABVue 81, p. 200); see Nunberg 1996 Dep. 153:23-

154:16 (TTABVue 99, pp. 105-06).

95 Nunberg 1996 Dep. 156:3 (TTABVue 99, p. 108).

96 Nunberg Report p. 2 (TTABVue 83, p. 84). See also Nunberg Dep. p. 305-310, 314:16-21

(TTABVue 81, p. 198-203, 207).

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If Mr. Liles went back in history to when the 13 colonies were being

organized, he would have seen that “redskin” was not used to convey

respect, adulation or honor.97

A man who resigned from the Pulaski County sheriff’s office because of

alleged harassment as an American Indian has won $24,727 in a race

discrimination lawsuit. . . . He said he was called “chief,” “Indian Joe”

and “redskin.”98

More significant than the relatively small number of uses as a reference to

Native Americans, and many of those in the context of racial slurs, is the relative

absence of use of the term to describe a person. Dr. Nunberg found it significant

that this search yielded so few results showing the term “redskin” as a reference to

a Native American:

There were in this database over 74,000 instances of the

phrase ‘American Indian’ or ‘American Indians.’ And over

73,000 instances to the phrase ‘Native Americans,’ a

disproportion of about 2,000 to 1 which suggests that the

use of ‘redskin’ to refer to Indian is extremely rare in this

database which suggests some reason for avoiding the

term since it is, in fact, a commonly used term, for

example, in the cinema and historical sources.99

Respondent objects to Dr. Nunberg’s opinion as irrelevant because it is

lacking in scientific basis. However, we do not rely on Dr. Nunberg’s ultimate

opinions and conclusions regarding the word “redskins,” rather we look to the

underlying data that is not in dispute which undeniably shows a drop-off in usage.

This is corroborated by respondent’s expert, Mr. Barnhart who conducted a similar

electronic database search, discussed infra. As to the data, respondent’s objection

97 Id. at 3 (TTABVue 83, p. 85).

98 Id. at 5 (TTABVue 83, p. 86).

99 Nunberg 2/18/97 Dep. 307:18-308:2 (TTABVue 81, pp. 200-01).

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that the “uses that date from outside the pertinent time periods [are irrelevant] and

are not reflective of Native Americans’ viewpoints,” is overruled.100 As noted above,

the search encompasses the relevant time period, and is relevant in correlation to

objection to use of this term by Native Americans.

Mr. Barnhart conducted a similar search using a Nexis electronic database

group file featuring major newspapers, magazines and journals published between

1969 and 1996.101 He found that the term “redskin” or “redskins” appeared in

143,920 articles at least once.102 Similar to Dr. Nunberg’s initial search results, Mr.

Barnhart reported that the results of his “redskin” database search were

“overwhelming to be in the context of sports,” with less than two percent of the

results referring to Native Americans.103

Mr. Barnhart would not draw any inferences about the infrequency in which

the term “redskin” or “redskins” was used to refer to Native Americans. He testified

that it was not what he was asked to do and it would be a significantly greater

project to determine whether there is any significance to the lack of occurrences.104

However, in his report he did, in fact, draw conclusions, when he concluded that the

term REDSKIN “is acceptable in both formal and informal speech or writing of

100 Pet’rs’ Br. p. 18.

101 Barnhart Expert Report 3, 18 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, pp.

20, 35).

102 Barnhart Dep. 64:13 (TTABVue 159, p. 67); Barnhart Expert Report 3, 12 (unnumbered),

Barnhart Dep. Ex. 3 (TTABVue 162, pp. 20, 29).

103 Barnhart Expert Report 12 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 161, p. 29);

see Barnhart Dep. 69:5-8; 117 (TTABVue 159, p. 72, 120).

104 Barnhart Dep. 67:15-70:6 (TTABVue 159, pp. 70-73).

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educated people.”105 The conclusion he drew was that its absence from the database

references somehow supports, or at least does not refute, his finding that the term is

part of standard English and acceptable for formal and informal speech or writing.

Such a conclusion stands in contradiction to the stark drop off in usage as shown by

Dr. Nunberg’s research and supported by Mr. Barnhart’s own research which

shows, inter alia, use of the term in many literary sources until 1969 where his

search of the Nexis database spanning the years 1969-1996 reveals only 2 percent of

the appearances of “redskin(s)” related to “Amerindians” (96 percent referenced

respondent’s team and 2 percent referenced Miami University’s former team name),

and the addition of the usage labels in the dictionaries during the same time period.

Mr. Barnhart confirms that for the last thirty years (from 1967 to 1997 the date of

the deposition) “the overwhelming context in which the term redskins is used in

general literature” is in a sports context.106 To the extent respondent relies on this

data to show that because it is printed in newspapers reporting on the professional

football team by that name it is not disparaging in that context, Mr. Barnhart

testified that his report is not based on Native American response to the term in

this context, therefore, we cannot rely on this data to make such a finding or to even

raise doubt about other findings, regarding the viewpoint of Native Americans.

Mr. Barnhart testifies that while the term “redskin(s)” was not disparaging

“as applied to American Indian persons” in 1967-1985 it might have been

105 Barnhart Expert Report (TTABVue 162, p. 31).

106 Barnhart 1997 Dep. p. 162 (TTABVue 161, p. 10).

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offensive.107 As noted above, Mr. Barnhart attaches intent of the speaker to the

word disparaging and his view of offensive is more in line with the meaning of

disparaging in the context of Section 2(a).

NCAI Resolution

The Executive Council of the National Congress of American Indians

(“NCAI”), “the oldest and largest intertribal organization nationwide representative

of and advocate for national, regional, and local tribal concerns,” passed a resolution

in 1993, entitled the “Resolution in Support of the Petition for Cancellation of the

Registered Services Marks of the Washington Redskins AKA Pro-Football Inc.”108

The resolution includes in pertinent part the following:

NCAI is the oldest and largest intertribal organization

nationwide representative of and advocate for national,

regional, and local tribal concerns; . . . .

[T]he term REDSKINS is not and has never been one of

honor or respect, but instead, it has always been and

continues to be a pejorative, derogatory, denigrating,

offensive, scandalous, contemptuous, disreputable,

disparaging and racist designation for Native American’s

[sic]; and

[T]he use of the registered service marks identified in

Exhibit B to this resolution by the Washington Redskins

football organization, has always been and continues to be

offensive, disparaging, scandalous, and damaging to

Native Americans.109

107 Barnhart 1997 Dep. p. 181:2-25; 182:2-12, (TTABVue 161 p. 15).

108 National Congress of American Indians Est. 1944, Resolution No. EX DC-93-11,

Resolution in Support of the Petition for Cancellation of the Registered Services Marks of

the Washington Redskins AKA Pro-Football Inc. (Jan. 18-19, 1993) (“NCAI Resolution”),

Petitioners’ Notice of Reliance, Ex. 3 (TTABVue 63, pp. 71-77).

109 Id. (emphasis added).

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Respondent objects to the NCAI resolution “as irrelevant, to the extent that it

dates from a time period not relevant to issues in this proceeding.”110 Respondent

further asserts that the District Court found it “irrelevant to the calculus.”111 The

full quote from the District Court is set forth below:

All of these resolutions were made after the relevant time frame, with

no explanation by the TTAB as to how they ‘shed light’ on the relevant

time period, and thus, are irrelevant to the calculus . . . [and] the

TTAB made no findings of fact about the strength of this evidence.

Pro-Football, Inc. v Harjo, 68 USPQ2d at 1255.

We begin by stating that there is no question as to the authenticity or

identity of this document. The stipulation by the parties is clear and unequivocal

“all evidence admissible in [Harjo] shall be admissible in this proceeding” and only

objections as to relevance were preserved for the evidence covered under paragraph

one of the stipulation.112 The testimony by Ms. Chase, discussed infra, regarding

the procedures by which the NCAI Executive Council passes its resolutions and as

stated in the NCAI by-laws, and the other evidence of record showing NCAI

membership (referenced infra in the findings of fact), is sufficient to support the

credibility, reliability and trustworthiness of the resolution.113 In addition, Ms.

Chase’s testimony along with other evidence sets out the circumstances under

110 Resp. Br. Appendix A p. 1 (TTABVue 181, p. 58).

111 Resp. Br. p. 20 (TTABVue 181, p. 26) quoting Pro-Football, Inc. v. Harjo, 68 USPQ2d at

1255.

112 Parties’ Stipulation (TTABVue 31).

113 There is nothing in the record to even suggest that NCAI’s procedures were not followed.

While Ms. Chase was not present when the resolution was voted on, she did attend the

January 18-19 gathering, during which the resolution was adopted. Chase Dep. p. 52

(TTABVue 98, p. 58).

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which the resolution was passed, i.e., that approximately 150 tribes were

represented by NCAI at that time and at least one third of the tribal members were

present to pass the resolution.114

With regard to respondent’s relevancy objection, any statement made after

each registration issued is not a statement from the time of registration; thus, based

on respondent’s logic even testimony taken from individuals in 1993-1996 (i.e.,

during the Harjo litigation) would be statements about the witnesses’ opinions

during the years 1967-1990, and as such, would be irrelevant. However, the mere

fact that an opinion is voiced in 1993 does not mean the opinion was not held by

that group or individual in the 1967-1990 time period. In Harjo, we note, the

opinions about views from 1967-1990 given by the individual plaintiffs through

testimony were accepted, by both the Board and the District Court.115 Here, we

have a claim that the registered marks disparaged Native Americans when

registered. We find that a resolution passed by an organization such as NCAI,

which throughout the relevant time period represented approximately thirty

percent of Native Americans, setting forth the past and ongoing viewpoint of the

114To put these numbers in better context, according to the Census Bureau, there were

523,591 Native Americans in the United States in 1960, 792,730 in 1970, 1,364,033 in 1980,

and 1,878,285 in 1990. Campbell Gibson & Kay Jung, Historical Census Statistics on

Population Totals By Race, 1790 to 1990, and By Hispanic Origin, 1970 to 1990, For The

United States, Regions, Divisions, and States App. B, tbls. B-1 to B-3 (U.S. Census Bureau,

Working Paper Ser. No. 56, 2002). The U.S. census is a standard reference; therefore, we

may take judicial notice of its data. Fed. R. Evid. 201; In re Broyhill Furniture Indus. Inc.,

60 USPQ2d 1511, 1514 n.4 (TTAB 2001).

115 We further note respondent elicited and relied upon testimony provided in 1997

regarding views held in 1967. Barnhart 1997 Dep. pp. 170-171 (TTABVue 161, pp. 12-13)

(Mr. Barnhart stating his opinion that the word “redskins” is not disparaging with regard

to “the Redskins team” in 1967 through 1997). As discussed infra, Mr. Barnhart’s

definition of disparaging requires intent from the speaker.

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Native Americans it represents is clearly probative of the views of Native

Americans held at the referenced time period.116 We accept individual testimony

about views held in the past, therefore we accept a group statement about views

held in the past, in particular here where the claim pertains to the views of a group

and not individuals.117 Respondent’s objection on the basis of relevancy is

overruled.

116 We note in the Harjo decision that while Resolution 93-11 was part of the record, the

Board quoted from a different NCAI resolution that could be appropriately characterized as

“indicating a present objection” to the word Redskins in respondent’s marks. Harjo v. Pro-

Football, Inc., 50 U.S.P.Q.2d at 1725, 1747. See “Resolution to Justice Department

Investigation of Human Rights Violations … NCAI Resolution 93-143, calling for the

abolition of Indian nicknames, Mascots and Images and commercial use of these by sporting

industries, colleges, universities and automobile manufacturers … NCAI does hereby

request Senator Ben Campbell-Democrat, Colorado, and Senator Don Nickles-Republican,

Oklahoma, to direct the Justice Department to investigate any human and civil rights

violations by colleges, universities, and public institutions and exploit Indian imagry [sic]

and lifestyles.” Petitioner’s Notice of Reliance Ex. 3 (TTABVue 83, pp. 47-48). By contrast,

Resolution 93-11 clearly speaks to the viewpoint during the relevant time period. With

regard to Resolution 93-11 the Board noted that “[e]vidence concerning the significance of

the word ‘redskin(s)’ before and after the relevant time periods may shed light on its

significance during those time periods.” Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d at 1715.

To clarify, while the evidence is from a time directly after the relevant time period, it

addresses the viewpoint during the relevant time period and, therefore, goes beyond

“indicating a present objection.” Rather, it is evidence of the viewpoint during the relevant

time period.

117 We further note an editorial from the Albuquerque Journal dated September 12, 1992

includes the following statement: “One could argue that when the team was originally

named, most people – make that most White people – didn’t consider the word ‘redskins’

derogatory. But Indians have long objected to the term.” Emphasis added. Petitioner’s

Notice of Reliance Ex. 20 (TTABVue 71, p. 87). New Mexico was home to 133,816 Native

Americans in 1990 according to the Census data and a good portion of the Navajo Nation –

Ms. Blackhorse, one of the petitioners, is a registered member of the Navajo Nation.

Census Bureau, U.S. Dep’t of Commerce, Pub. No. 1900 CP-3-7, 1990 Census of Population

Characteristics of Am. Indians by Tribe & Language tbl. 1 (1994).

While we do not know if the newspaper editorial was written by a Native American, as a

newspaper in a state with an appreciable number of Native Americans it is reasonable to

infer that the editorial board has some knowledge regarding the sentiments of the Native

American community. This is simply another example of a statement describing views held

in the past. Such statements serve to cover the relevant time periods. Respondent’s

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Cancellation No. 92046185

Deposition of JoAnn Chase

JoAnn Chase, a Native American,118 became Executive Director of the

National Congress of American Indians on April 1, 1994, and provided testimony in

1996 about Resolution 93-11.119 Respondent’s objection to Ms. Chase’s testimony as

being irrelevant because the NCAI resolution dates from a time period not relevant

to this proceeding is overruled. Her testimony relates to the NCAI resolution that

specifically addresses the time period with which we are concerned. Her testimony

also provides contemporary and historical background on the organization.

Deposition of Harold Gross

In 1972, Harold Martin Gross was the Director of Indian Legal Information

Development Service, a legislative oversight program.120 The mission of the Indian

Legal Information Development Service was two-fold: (1) to provide career training

to Native Americans in the fields of journalism, law and public affairs in the

legislative process; and to provide legislative information to Native American tribes

through a monthly magazine.121 The staff was comprised of Native Americans.

Mr. Gross testified that they asked him to help them change the name of the

Washington Redskins football team because “it was disparaging, insulting and

relevancy objection to this editorial as being from a different time period and as not written

by a Native American is overruled.

118 Chase Dep. 7:11-13, Apr. 26, 1996 (TTABVue 98, p. 13).

119 Id. 5:19-22 (TTABVue 98, p. 11).

120 Gross Dep. 7:23-8:1, June 11, 1997 (TTABVue 79, pp. 169-70).

121 Gross Dep. 8:4-8:11 (TTABVue 79, p. 170).

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degrading to American Indians.”122 In January 1972, Mr. Gross drafted a letter on

behalf of his staff and sent it to Edward Bennett Williams, who was then part-

owner and president of the Washington Redskins football team.123 That letter led to

a March meeting with Mr. Williams.124

The following people attended that meeting along with Mr. Gross:125

1. Richard LaCourse, a representative of the Washington Bureau

of the American Indian Press Association;

2. Leon Cook, President of the National Congress of American

Indians (NCAI);

3. Ron Aguilar, District Representative of the National Indian

Youth Council;

4. Dennis Banks, District Representative of the American Indian

Movement;

5. Hany Geigomah, Assistant to the Commissioner of Indian

Affairs and the Youth Representative from the Bureau of Indian

Affairs;

6. Laura Wittstock, Legislative Review Editor of the Indian Legal

Information Development Service; and

7. LaDonna Harris, President of the Americans for Indian

Opportunity.

122 Gross Dep. 16:11-16:19 (TTABVue 79, p. 178). Respondent’s objection to this testimony

as “irrelevant in lacking foundation and scientific basis” is overruled. The testimony simply

pertains to an event he participated in and the motivation for that event.

123 Gross Dep. Ex. 32.007: Letter from Harold Gross, Dir., Indian Legal Information Dev.

Servs., to Edward Bennett Williams (Jan. 18, 1972) (TTABVue 77, pp. 11-13; TTABVue

105, p. 71-73 (duplicate)).

124 Gross Dep. 9:2-9:5, 18:7-18:11 (TTABVue 79, pp. 171, 180).

125 Gross Dep. 18:19-18:23 (TTABVue 79, p. 180), Gross Dep. Ex. 32.006 (TTABVue 77, p.

10; TTABVue 105, p. 69 (duplicate)).

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At the meeting, the Native American attendees expressed their “reasons for

objecting to the name of the team, and some of the trappings that went with it. And

to present the reasons why [they] thought it should be changed.”126

Respondent objects to Mr. Gross’ testimony and exhibits (e.g., the letter to

Mr. Williams) as irrelevant because “the organization he formerly represented

comprised at most seven Native American members and itself did not represent any

Native American tribe or organization.”127 The objection is overruled. The opinions

of seven Native Americans expressed during the relevant time period are obviously

relevant to the merits of the petition. Moreover, we do not rely on the testimony for

the viewpoint of the Indian Legal Information Development Service, the

organization Mr. Gross represented. Rather, we rely on this testimony and

evidence to show that NCAI’s opposition to use of the word “redskins” with

respondent’s services existed as early as 1972, well in advance of the 93-11

resolution and during the relevant time period. NCAI’s president, Mr. Leon Cook,

participated in that meeting and supported the position that respondent should

cease use of the name “Redskins.” The “Recommendations to the Washington, D.C.

Professional Football Team” from “Leon F. Cook, President, National Congress of

American Indians,” et al., include the following:

126 Gross Dep. 19:23-20:1 (TTABVue 79, pp. 181-82).

127 Resp’s Br. Appendix A p. 12. We further note, Mr. Gross’ deposition is another example

of contemporary testimony regarding past events and opinions that are not objected to as

irrelevant on that basis. We further note respondent did not object to the NCAI resolution

as not representing Native American tribes.

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Cancellation No. 92046185

1. That the derogatory racial epithet “Redskins” be withdrawn as a

team nickname for the professional football team of Washington,

D.C.128

In 1972, NCAI represented approximately 30 percent of Native Americans.

An article published in the Washington Daily News on March 30, 1972, discussing

the meeting with Edward Bennett Williams includes the following excerpt:

After Petite’s fist shaking speech, Williams closed this first meeting

with the American Indians who claim his team nickname, ‘Redskins’ is

a racial slur. The eleven Indian representatives included ... Leon Cook,

president of the National Congress of American Indians which claims a

membership of 300,000; Dennis J. Banks, national chairman of the

American Indian Movement.129

In addition, an article published in The Washington Post on Thursday March

30, 1972 includes the following:

A DELEGATION OF 11 people representing a variety of Indian

organizations ... Among the group ... requesting that ‘the derogatory

racial epithet ‘Redskins’’ be banished from the Washington sports

scene were ...Leon Cook, president of the National Congress of

American Indians which claims a membership of 350,000 Indians,

according to the protesting group’s informal leader, Harold Gross, an

attorney for another Indian organization.130

Harold Gross testified that he worked for NCAI in 1969 and would have first-hand

knowledge as to the membership in that time period.131 This evidence regarding

NCAI’s membership in the relevant time period, as well as its participation in the

128 Gross Dep. Ex. 32.005 (TTABVue 77, p. 9).

129 Petitioners’ Notice of Reliance Ex. 18 (TTABVue 48, p. 33) (emphasis added)

130Petitioners’ Notice of Reliance Ex. 18 (TTABVue 48, pp. 85-86) (emphasis added). We do

not find the discrepancy between the reports in the Daily News and Post as to the

membership of the NCAI as significant. The two reports agree that NCAI claimed to

represent at least 300,000 American Indians.

131 Gross Dep. p. 37 (TTABVue 79, p. 199).

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1972 meeting serves to corroborate the statement in the 93-11 resolution that the

term REDSKINS as used by the Washington Redskins “has always been …

offensive, disparaging, scandalous, and damaging to Native Americans.”132

NCAI’s decades-long challenge to the term “Redskins” is referenced in an

article in the Lakota Times published September 16, 1992:

The National Congress of American Indians has been battling against

the racist use of Indians as mascots for decades. The battle has been

uphill all the way because mainstream America does not see the term

[Redskins] as offensive – because they are not American Indians. …

Mr. Deloria who directed NCAI in the 1960’s and spoke out on the

mascot issue then ... The grounds for cancellation of the federal

registration include: The term ‘Redskin’ … is ... disparaging.133

Other evidence provides information regarding NCAI’s opposition to the

name “Redskins” for the football team and the number of Native Americans

represented by NCAI during the relevant time period. The state of Michigan issued

a report addressing the use of Indian names and mascots in October 1988.134 The

purpose of this report was to examine the presence of Native American stereotyping

in Michigan education institutions. The Commission surveyed colleges,

132National Congress of American Indians Est. 1944 Resolution No. Ex DC-93-11,

(TTABVue 63, p. 71) (emphasis added).

133 Lakota Times (September 16, 1992), Pet’rs’ Notice of Reliance Ex. 20 (TTABVue 71 pp.

88-89). Respondent’s objection that this article was published after the relevant time

period is overruled. We only rely on the article for the information provided regarding

NCAI’s activities during the relevant time period. See also NCAI Sentinel (Winter-Spring

1969) (TTABVue 48 pp. 80-82) “NCAI Wages War on Indian Image” (campaign to combat

negative images and references to Native Americans); and letter from William B. Welles

and Charles B. Kusen to Mr. Pete Rozelle (April 25, 1972) (commenting on “movement to

change the familiar titles of many teams in the sports world,” including the “Redskins”)

Petitioners’ Notice of Reliance Ex. 32 (TTABVue 77 p. 20).

134 See Michigan Civil Rights Commission Report on Use of Nicknames, Logos and Mascots

Depicting Native American People in Michigan Education Institutions (October 1988)

(“Michigan Comm’n Report”), Petitioners’ Notice of Reliance, Ex. 77 (TTABVue 91, p. 94).

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universities, high schools and junior high/middle schools.135 In addition, the

Commission contacted Native American organizations in Michigan to solicit

feedback on stereotyping of Native Americans.136 Respondent apparently lodged

several objections to this report (it is included by bates numbers in the objections to

documents referred to as “correspondence”); however, we only rely on the following

reference in 1988 to NCAI in this report and there is no objection to that

information.

The National Congress of American Indians, the oldest and largest

national Indian group in the U.S. also supports this organization’s

efforts to have the Washington team’s name changed.137

In April 1993, the Miami University Senate held meetings to determine

whether or not to abandon their team name REDSKINS, which they ultimately did.

Dr. Britton Harwood made the following statement:

The National Congress of American Indians, representing

approximately 150 tribal governments, calls it [redskin] a racial

slur.138

135 Michigan Comm’n Report, at 13 (TTABVue 91, p. 108).

136 Michigan Comm’n Report, at 21-22 (TTABVue 91, pp. 116-17).

137 Michigan Comm’n Report, at 6 (TTABVue 91, p. 101).

138 Statement to the [Miami] University Senate, Dr. Britton Harwood 1993 Minutes from

University Senate April 5, 1993, Petitioners’ Notice of Reliance Ex. 87 (TTABVue 95, p. 19).

These minutes were made admissible in the Harjo proceeding in view of both parties not

objecting to the other parties’ documents submitted under notice of reliance. They have

been stipulated into this record and there is no objection based on authentication or

foundation and any hearsay objection is waived (respondent objects to the relevancy of

these minutes for other reasons that do not impair the statement regarding how many

tribes are members of NCAI in 1993). In addition, an article from the newspaper The Voice

(April 27, 1993) titled “Harwood Addresses U. Senate on ‘Redskin’ Issue” includes the

statement “The National Congress of American Indians, representing approximately 150

tribal governments, calls it a racial slur.” Petitioners’ Notice of Reliance Ex. 88 (TTABVue

95, p. 29).

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This number is further corroborated a June 3, 1991 letter from Dale Pullen,

publisher of The U.S. Congress Handbook to Charlie Drayton, the Vice President of

Communications for the Washington Redskins, submitted by respondent to show

Native American support of the team.139 In his letter, Mr. Pullen wrote the

following:

The National American Indian Council, representing 70 per cent of the

American Indian population, would like 400 U.S. CONGRESS

HANDBOOKS for their D.C. meeting beginning June 7.

Ms. Lee Ann Tallbear, Executive Director, for the NAIC, called to see

how she might get books . . . .

Ms. Tallbear said that her group represents about 1.2 million

American Indians who do not live on reservations. The National

Congress of American Indians represent [sic] Indians living on

reservations (the remaining 30 percent).

In 1995, there were approximately 500 recognized tribes in the United States; 150

would have been about one third in 1993.140 Ms. Chase also testified that there

were between 100 – 400 members at the time the resolution was taken.141

We further note that in addition to NCAI, the American Indian Movement

(AIM) was represented at the 1972 meeting. AIM was founded in 1968 as stated in

the following letter from Clyde H. Bellecourt, National Director of the AIM and

139 Chase Dep. pp. 104-105 (TTABVue 98, pp. 110-11), Respondent’s Notice of Reliance Ex.

29.1 (TTABVue 142, p. 43) (shown as the Deloria Exhibit 35 also presented as exhibit 41 in

the Chase deposition).

140 1995 Federal Register, Respondent’s Notice of Reliance Ex. 64 (TTABVue 151, pp. 57-

63).

141 Chase Dep. p. 54 (TTABVue 98, p. 60). It is interesting to note that the 1992 WTOP

survey shows 28 percent of tribal leaders (again approximately 30 percent) found the name

offensive and wanted it changed. John Kent Cooke Dep., Ex. 6 (TTABVue 149, pp. 43-68;

TTABVue 156, pp. 11-38).

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William A. Means, President of International Indian Treaty Council, to Jack Kent

Cooke142 dated December 20, 1991:

The American Indian movement (AIM) is the foremost advocacy

organization representing and defending the spiritual, cultural,

political and treaty rights of the Indigenous (Indian) peoples in all of

North, Central and South America. … The American Indian

Movement, which was reborn here in Minneapolis, Minnesota in 1968

… The efforts by Indian people to cleanse organized sports, both within

major league baseball, the national football league and hockey, as well

high school and university athletic programs has been ongoing for

years. … We have received hundreds of calls and letters both national

and international in support of our efforts to change these demeaning

names (i.e. Washington Redskins) … by sports teams and athletic

programs.143

Letters of Protest

Petitioners submitted 19 letters from individuals identifying themselves or

family members as Native Americans from across the United States representing a

geographic cross section (South Dakota, Virginia, Florida, Nebraska, Iowa, Idaho,

Minnesota, Georgia, Illinois),144 letters from three Native American

organizations,145 one letter from the Otoe-Missouria Tribe,146 in which they

142 Jack Kent Cooke was respondent’s former “chairman of the Board, . . . president and a

director.” John Kent Cooke Dep. 15:16-21, Mar. 26, 1996 (TTABVue 65, p. 86).

143Letter from Clyde H. Bellecourt, Nat’l Dir., Am. Indian Movement, and William A.

Means, President, Int’l Indian Treaty Council, to Jack Kent Cooke (Dec. 20, 1991),

Petitioners’ Notice of Reliance, Ex. 5 (TTABVue 63, pp. 172-76).

144 Petitioners’ Notice of Reliance Ex. 5 (TTABVue 63, pp. 84-177; 67 pp. 14, 65, 86-87, 93,

130); petitioners’ Notice of Reliance Ex. 2 (TTABVue 77, p. 6).

145Letter from Clyde H. Bellecourt, Nat’l Dir., Am. Indian Movement, and William A.

Means, President, Int’l Indian Treaty Council, to Jack Kent Cooke (Dec. 20, 1991),

Petitioners’ Notice of Reliance, Ex. 5 (TTABVue 63, pp. 172-76); Letter from Loren Stiffarm,

President, Nat’l Indian Educ. Ass’n, to Manuel Lujan, Dept. of Interior (Mar. 16, 1992),

Petitioners’ Notice of Reliance, Ex. 5 (TTABVue 67, pp. 37-38); Letter from Sharon Metz,

Dir., H.O.N.O.R. to Jack Kent Cooke (Oct. 1992), Petitioners’ Notice of Reliance, Ex. 5

(TTABVue 67, pp. 68, 136).

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protested the use of the term “Redskins” by respondent.147 A representative sample

of excerpts from individual letters is set forth below:

Since you continue not to believe that the term “Redskins” is not [sic]

offensive to anyone, let me make this clear: The name “Redskins” is

very offensive to me and shows little human interest or taste. I am a

Comanche Indian from Oklahoma. Indians are having enough trouble

trying to erase misconceptions about themselves without having to be

hit in the face with it every day in the form of a football team or

baseball team. If you think you are preserving our culture or your

history, then may I suggest a change? To live up to your name, your

team would field only two men to the opponents eleven. Your player’s

wives would be required to face the men of the opposing team. After

having lost every game in good faith, you would be required to remain

in RFK stadium’s end zone for the rest of your life living off what the

other teams had left you. (Which wouldn’t be much.) Since you would

probably find this as distasteful as 300,000 Indians do, I would suggest

a change in name. In sticking to your ethnic theme, I would suggest

the Washington Niggers as a start. … This would start a fantastic

trend in the league. We would soon be blessed with the San Fransisco

[sic] Chinks, New York Jews, Dallas Wetbacks, Houston Greasers, and

the Green Bay Crackers. Great, huh? Mr. Williams, these would be

very offensive to many people, just as Redskins is offensive to myself

and others. You can take a stand that would show you and the team

as true believers in civil rights, or you can continue to carry a name

that keeps alive a threatening stereotype to Indian people. People, Mr.

Williams. We don’t want the Redskins!148

… I, along with many other Native Americans, have tried over many

years to reduce the level of opprobrium and prejudice surrounding

146 Letter from Otoe-Missouria Tribe to Jack Kent Cooke (Oct. 8, 1993), Petitioners’ Notice

of Reliance, Ex. 5 (TTABVue 67, p. 150). According to the Census Bureau, there were a

total of 1,762 Otoe-Missourias in the United States in 1990. Census Bureau, U.S. Dep’t of

Commerce, Pub. No. 1900 CP-3-7, 1990 Census of Population Characteristics of Am.

Indians by Tribe & Language tbl. 1 (1994).

147 Respondent’s objections to these letters as irrelevant because there is no evidence that

the authors are Native Americans or represent any Native American tribe or organization

are overruled. The writers self-identified as Native Americans and respondent waived the

hearsay objection. Moreover respondent relies on the same type of evidence for the truth of

the matter asserted, see infra.

148 Letter from Billy Kevin Gover to Edward Bennett Williams (July 18, 1972), Petitioners’

Notice of Reliance Ex. 32 (TTABVue 77, p. 6).

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American attitutes [sic] toward Native peoples. I urge that you

consider an immediate change of name for your team and that your

new name reflect in no way unfavorably on any of our national or

ethnic groups.149

… I must say that I am appalled at your [Jack Kent Cooke] callous

attitude and comments concerning this issue. As a Native American I

can assure you that I find the term “Redskin” offensive and derogatory.

I don’t mind telling you that I find the name of your team totally

objectionable. … I feel you’ve gotten off lightly with the concerns for

this issue because the Indian population is not as large or vocal as the

other minorities of this country. Because we are not highly visible that

does not mean you can count us out of the human race. We deserve the

right to be treated with equal respect and consideration that is entitled

to any race. … Would you be offended if someone called you or a family

member a derogatory racial nickname? Some of these nicknames are:

honkie, wop, kraut, chink, potato head and nigger. When a Native

American is referred to as a “redskin” then you are in essence calling

them a name that is just as bad as those above. Would you be offended

by any of these names? If so, then please reconsider your position.

You people in Washington take so much care not to offend the

minorities [in] your city. I don’t understand why this same care and

consideration isn’t extended to other races in this country.150

I object to the use of “redskins” for a football team.151

I am an Oglala Sioux Indian living here on the Pine Ridge Indian

Reservation in South Dakota. I am writing this letter concerning a

matter that I feel is very important I believe that the name “Redskins,”

is very demeaning to my Indian people. … Thank you for your kind

attention to the matter.152

… As a member of the Oneida tribe of Indians of Wisconsin, I find the

team name [Redskins] very offensive and more of an ethnic slur which

149 Letter from Joan W. Drake to Jack Kent Cooke (January 21, 1988), Petitioners’ Notice of

Reliance Ex. 5 (TTABVue 63, p. 86).

150 Letter from Roxanna Pucher to Jack Kent Cooke (February 22, 1988), Petitioners’ Notice

of Reliance Ex. 5 (TTABVue 63, pp. 108-109).

151Letter from Norma Lussier to Jack Kent Cooke (member of the Red Lake Band of

Chippewa Indians) (March 18, 1988), Petitioners’ Notice of Reliance Ex. 5 (TTABVue 63, p.

127).

152Letter from Adora Martin (May 2, 1988) to Jack Kent Cooke, Petitioners’ Notice of

Reliance Ex. 5 (TTABVue 63, 134).

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should have never been placed with the proud symbol of the team. … I

am a big fan of the team and it’s collection of extraordinary talent,

however, I remain adamantly opposed to the organization [sic] keeping

the current team name.153

The Washington Redskins must go! No, not the team, but the name,

which is totally demeaning of Native Americans and reinforces a

negative stereotype that is unjust and unwarranted. The term

“redskins” is out of a period when there was a bounty on the heads of

Indians and they were scalped. Eighty cents for a man’s skin, 60 cents

for a woman’s skin and 20 cents for a child’s skin. It is a period in our

history that every American should be ashamed of and the continued

use of such a derogatory and offensive term is an abomination. Ben

Nighthorse Campbell, the only Native American in the U.S. Senate,

says that “the name Redskins carries the same negative connotation as

some terms that blacks and whites find offensive. The word brings to

mind a negative image of uncivilized persons and has no positive

meaning.” Therefore, Mr. Cooke, despite your insistence to the

contrary, there is no pride or honor associated with the name. The

controversy is something that will not go away, will not disappear until

the term “redskin” is banished from our vocabulary. … ps. Being of

direct Native American descent, I find the name especially offensive.154

All but one of the letters were written at the end or just after the relevant

time period, but do evidence the opinion of individual Native Americans across the

United States, providing further corroboration that the viewpoint in the NCAI

resolution represents a cross-section of Native Americans. We have not considered

the at least 150 letters from individuals other than Native Americans protesting the

use of the name Redskins.155 Inasmuch as our determination of the issue of

disparagement concerns the views of Native Americans, the 150 letters from non-

Native Americans have limited probative value. While they may serve to indicate a

153Letter from Jeffrey Valentino to Jack Kent Cooke (September 14, 1992), Petitioners’

Notice of Reliance Ex. 5 (TTABVue 67, p. 65).

154Letter from Kimberly Whitehead to Jack Kent Cooke (October 8, 1993), Petitioners’

Notice of Reliance Ex. 5 (TTABVue 67, p. 130).

155 See App. A (detailed listing of submissions by petitioners’ notice of reliance).

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broader consensus regarding the word, which may add to the weight of the evidence,

we do not find it necessary to rely on this evidence.

Respondent’s Evidence of Support for the Name

On January 16, 1992, the chief of the Modoc Tribe of Oklahoma sent the

Washington Redskins a copy of the Inter-Tribal Council (comprising the Miami,

Ottawa, Modoc, Peoria and Seneca-Cayuga Tribes of Oklahoma) “Resolution

Supporting Use of Team Name ‘Redskins’ by the Professional Football Team in

Washington, D.C.,” approving the name “as a positive image depicting Native

American culture and heritage.”156

In October 1991, the chairman of the Tulalip Tribes of Washington, Stanley

G. Jones Sr., sent a letter to Senator John McCain, then-Vice Chairman of the

Select Committee on Indian Affairs, stating that “[m]any of us are proud that sport

teams use us and our symbols to represent them. . . . We are not offended by the

Washington football team being called the Redskins.”157

The “Tribal Leader of the Soboba Band of Indians located in San Jacinto,

California,” Robert J. Salgado, sent a letter to Jack Kent Cooke, in January 1992,

stating that he had “been impressed [by] the manner in which the Washington

156 Resolution of Inter-Tribal Council, Inc. (1992), Respondent’s Notice of Reliance, Ex. 27

(TTABVue 142, pp. 28-29), Respondent’s Notice of Reliance, Ex. 28.2 (TTABVue 142, pp. 32-

33 (duplicate). See also letter from Floyd E. Leonard, Chief of the Miami Tribe of

Oklahoma, to C. A. Buser (June 21, 1991) (explaining that the Miami Tribe voted to support

and acknowledge its pride in the use of the name “Redskins” by Miami University in

Oxford, Ohio), Respondent’s Notice of Reliance, Exhibit 28.7 (TTABVue 142, pp. 39-40).

157 Letter from Stan Jones Sr., Chairman, the Tulalip Tribes, to Sen. John McCain (Oct. 30,

1991), Respondent’s Notice of Reliance, Ex. 28.1 (TTABVue 142, pp. 30-31). See letter from

Stanley G. Jones Sr., Chairman, the Tulalip Tribes, to Redskin Support Comm. (Aug. 31,

1992) (expressing no objection by the Tulalip Tribe to the use of the “Redskins” name),

Respondent’s Notice of Reliance, Ex. 28.6 (TTABVue 142, p. 38).

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Redskins have portrayed the American Indian,” and further stating his support for

the team.158

The chief of the Choctaw Nation of Oklahoma, Hollis E. Roberts, sent a letter

to the Washington Redskins Communications Department in January 1992, which

covered the history of the Choctaws and connected that history with the use of

American Indian names and images by sports teams.159 Chief Roberts stated:

Sports teams traditionally adopt a namesake and image

which they perceive as noble and powerful. The

Washington Redskins is a team . . . that Indian people can

be proud to be identified with.160

The chief concluded by expressing his support “of the Washington football team, the

‘Redskins.’”161

The Principal Chief of the Seminole Nation of Oklahoma, Jerry G. Haney,

sent a letter to Jack Kent Cooke in January 1992, expressing that the use of the

“Redskins” name by the Washington football team is a source of pride.162

The Vice President of the Pima-Maricopa Indian Community of Salt River in

Scottsdale, Arizona, Merna L. Lewis, sent a letter to Ms. Jo Walter regarding the

158 Letter from Robert J. Salgado, Chairman, Soboba Band of Mission Indians, to Jack Kent

Cooke (Jan. 17, 1992), Respondent’s Notice of Reliance, Ex. 28.3 (TTABVue 142, p. 34).

159 Letter from Hollis E. Roberts, Chief, Choctaw Nation of Okla., to Charlie Dayton, V.P.,

Wash. Redskins Communications Dep’t (Jan. 23, 1992), Respondent’s Notice of Reliance,

Ex. 28.4 (TTABVue 142, pp. 35-36).

160 Id. (TTABVue 142, p. 36).

161 Id.

162 Letter from Jerry G. Haney, Principal Chief, Seminole Nation of Okla., to Jack Kent

Cooke (Jan. 23, 1992), Respondent’s Notice of Reliance, Ex. 28.5 (TTABVue 142, p. 37).

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use of the name “Naperville Redskins” by a high school in Illinois.163 Ms. Lewis

wrote that her Native American community did not object to the Naperville school

using the name “Redskins” so long as it was used with honor and respect.

The principal chief of the Eastern Band of Cherokee Indians in North

Carolina, Jonathan L. Taylor, also sent a letter to Ms. Jo Walter in July 1992,

regarding the use of the name “Naperville Redskins.”164 Chief Taylor wrote that the

use of the name “Redskins” by the school was a “great honor for all Native

Americans.”165

A 1992 newspaper article reported that the Mattaponi tribe did not object to

the use of the name “Redskins” by the Washington football team. The tribal chief of

the Mattaponi of King William County, Virginia, Webster “Little Eagle” Custalow,

is quoted as saying that his tribe did not “disapprove of that name at all. The only

thing I’ve asked them to do is to wear the helmets proudly. There’s an Indian head

dress on the helmet and I asked them to keep that helmet high and not rub it in the

dirt.”166

The record also includes evidence regarding Native Americans using the

word “redskins” in connection with their own sports teams:

163 Merna L. Lewis, V.P., Pima-Maricopa Indian Community (Ariz.), to Jo Walter (July 14,

1992), Respondent’s Notice of Reliance, Ex. 28.8 (TTABVue 142, p. 41).

164 Jonathan L. Taylor, Principal Chief, Eastern Band of Cherokee Indians, to Jo Walter

(July 16, 1992), Respondent’s Notice of Reliance, Ex. 28. 9 (TTABVue 142, p. 42).

165 Id.

166 Associated Press, “NAACP Objects to ‘Redskins’; Chief Doesn’t,” N. Va. Daily, Aug. 5,

1992, Petitioners’ Notice of Reliance, Ex. 19 (TTABVue 48, p. 59).

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A sign at a Navajo Indian Reservation school: Red Mesa High School

Home of the Redskins, with the photograph taken in 1989 and sent by

Robert D. Kahn to Jack Kent Cooke on November 4, 1991;167

A sports article in the April 30, 2010 issue of the Seminole Tribune

(Fla.), referencing the “Lady Redskins” as one of the teams involved in

a tribal basketball tournament.168

Respondent also points out that its seventeenth draft pick in 1956 was Eagle

Day, who was part of the Cherokee tribe.169 Day began his career with the

Washington Redskins in 1959, as reported in this Washington Daily News article:

When he arrived at training camp in July 1959, the Washington Daily News

reported that “Eagle Day is an Indian who has always wanted to be a Redskin,”

167 Letter from Robert D. Kahn to Jack Kent Cooke (Nov. 4, 1991), Respondent’s Notice of

Reliance, Ex. 33 (TTABVue 143, pp. 6-8).

168 Marcus Anthony Briggs-Cloud Dep. 67:20-68:14, 72:14-73:18, June 23, 2011 (TTABVue

121, pp. 73-74, 78-79); Briggs-Cloud Dep. Ex. 3 (Chris C. Jenkins, “Son, Daughter

Celebrated in Memorial Tourneys,” Seminole Tribune (Fla.), Apr. 30, 2010, at 1C)

(TTABVue 121, p. 24). We note this article is not from nor does it reference the relevant

period.

169 “Redskins Sign Indian,” Washington Daily News, Mar. 10, 1959, at 37, Respondent’s Ex.

31.1 (TTABVue 143, p. 4).

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quoting Day as saying “I’m finally getting a chance to do what I wanted in the first

place—play for the Redskins.”170

Based on our review of the record within the confines of this narrow case and

taking into consideration the stipulations that all evidence deemed admissible in

Harjo is of record and all hearsay objections are waived to allow consideration of

documents for the truth of the matter asserted, 171 we find the following facts in the

two categories.

FINDINGS OF FACT

General Analysis of the Word172

1. The word REDSKIN on its face is and always has been a racial designation.173

2. The word REDSKINS is a plural of the word REDSKIN.174

3. The word REDSKIN on its face refers to the real or imagined skin color of Native

Americans.175

170Tom Yorke, “An Indian Joins the Redskins,” Washington Daily News, July 27, 1959,

Respondent’s Ex. 31.2 (TTABVue 143, p. 5).

171 Despite the waiver of hearsay objections, we only rely on the content of these documents

to corroborate testimony and NCAI Resolution 93-11, and when various documents point to

the same result to establish sufficient indicia of reliability. West Florida Seafood, Inc. v. Jet

Restaurants, 31 F.3d 1122, 31 USPQ2d 1660, 1663 (Fed. Cir. 1994).

172 Although titled “General Analysis” this category includes evidence and findings of fact

based on Native American viewpoints, i.e., the viewpoint of paramount concern under the

applicable analysis.

173 This is not in dispute and is evident from the answer to the first part of the test, i.e., that

REDSKINS retains the meaning Native American. However, it is also amply supported by

the multitude of dictionary definitions in the record, including those set forth in the

majority opinion. See also Barnhart Rept. p. 1 (TTABVue 129, p. 5).

174 This has been conceded and established by the record as part of the first prong of the

test.

175 Barnhart Dep. p. 70-71 (TTABVue 159, p. 74); Barnhart Rept. (TTABVue 162, p. 21);

Nunberg Dep. Ex. 14 (TTABVue 83, p. 118) Webster’s New Twentieth Century Dictionary of

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4. Racial slurs often refer to real or imagined physical differences.176

5. Dictionary usage labels signal that a word is not part of standard vocabulary.177

6. Before 1966 no dictionary in this record included a usage label for the term

REDSKIN.178

7. Beginning in 1966 and continuing to 1990, usage labels in dictionaries indicating

the term REDSKIN to be offensive, disparaging, contemptuous or not preferred,

first appear and then grow in number.179

the English Language Unabridged (2d ed. 1977) “so called from the reddish or coppery color

of the skin.” This is not in dispute. Resp. Br. pp. 38-40.

176 Allen, Irving Lewis, Unkind Words: Ethnic Labeling from Redskin to WASP (Bergin &

Garvey 1990) p. 18 (“Nearly half of all interracial slurs ...refer to real or imagined physical

differences. ... Most references to physical differences are to skin color, which affirms what

we have always known about the significance of color in human relations. Asian groups

were called yellow this and that and Native Americans were called redskins, red men, and

red devils.”) petitioners’ notice of reliance Ex. 57 (TTABVue 87, p. 20). See also Allen,

Irving Lewis, The Language of Ethnic Conflict Social Organization and Lexical Culture

(Columbia University Press 1983) p. 51 (Redskin listed as a disparaging slur for Native

Americans), petitioner’s notice of reliance Ex. 1 (TTABVue 63, p. 41). In a deposition

submitted by respondent, Richard Leslie Vaughn, director of communications for the

Washington football team, presents an example that reference to skin color is disparaging.

“Q. What is it about the word ‘darkie’ that causes you to believe that it refers to African-

Americans? A. The color of their skin. Q. Do you consider the word ‘darkie’ derogatory? A.

Yes. Q. Do you consider it disparaging? Yes.” Vaughn Dep. pp. 148-149 (TTABVue 158,

pp. 151-152).

177 Barnhart Rept. (TTABVue 162, p. 25). This is not in dispute.

178 Barnhart Rept. (TTABVue 162, p. 21).

179 Barnhart Rept. (TTABVue 162, p. 21). Regarding respondent’s attempt to weaken the

usage labels by pointing to the qualifier “often,” as in “often offensive” indicating that it

allows for contexts in which it would not be offensive, the usage labels for HEBE, KIKE

GOOK, CHINK and NIGGER are all qualified by “usually,” yet it would be hard to imagine

anyone feeling emboldened to adopt as a team name any one of these words based on the

qualifier “usually.” Merriam-Webster’s Collegiate Dictionary (10th ed. 1998). The Board

may take judicial notice of dictionary definitions. In re Red Bull GmbH, 78 USPQ2d 1375,

1378 (TTAB 2006). See also Nunberg Dep. p. 343-344 (TTABVue 81 pp. 236-237) “As for

the ‘often’ that is sometimes added as a hedge and is even added to words whose status has

disparaging epithets is beyond a question like ‘nigger.’ That’s usually used merely to make

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8. From 1983 on, all dictionary entries in the Barnhart report include a usage label

indicating the term is offensive, disparaging, contemptuous or not preferred.180

9. The National Congress of American Indians (NCAI) was founded in 1944.181

10. The record shows that NCAI began advocating against use of respondent’s name

REDSKINS, in the 1960’s.182

11. The advocacy organization American Indian Movement (AIM) was founded in

1968 and its effort to rid sports teams of Indian names, including respondent’s

name REDSKINS, has been ongoing for decades.183

an exception of the ironic uses of the word often by members of the group to whom it’s

applied.”

180 Barnhart Rept. (TTABVue 162, p. 26). Apart from respondent’s expert report,

respondent points to a 1987 entry from the Oxford English Dictionary that does not have a

usage label. However, the 1980 Oxford American Dictionary entry of record contains the

usage label “contemptuous” and is obviously more probative on this point inasmuch as we

are concerned about the meaning of language in the United States – not the English

speaking world at large. (TTABVue 86, p. 76). Moreover, by 1989 even the Oxford English

Dictionary added the usage label “not the preferred term.” (TTABVue 63, pp. 55-57).

181 Chase Dep. p. 34 (TTABVue 98, p. 40).

182 Lakota Times (September 16, 1992) (“The National Congress of American Indians has

been battling against the racist use of Indians as mascots for decades. The battle has been

uphill all the way because mainstream America does not see the term [Redskins] as

offensive – because they are not American Indians. … Mr. Deloria who directed NCAI in

the 1960’s and spoke out on the mascot issue then ... The grounds for cancellation of the

federal registration include: The term ‘Redskin’ … is ... disparaging.”) TTABVue 71, p. 89.

See also NCAI Sentinel “NCAI Wages War on Indian Image” (Winter-Spring 1969)

(campaign to combat negative images and references to Native Americans). TTABVue 48,

pp. 80-82. See also letter from William B. Welles and Charles B. Kusen to Mr. Pete Rozelle

(April 25, 1972) (commenting on “movement to change the familiar titles of many teams in

the sports world,” including the “Redskins”) (TTABVue 77, p. 20).

183 Letter from Clyde H. Bellecourt, National Director of AIM and William A. Means

President of International Indian Treaty Council to Jack Kent Cooke (December 20, 1992)

(TTABVue 63, p. 172). See also The Evening Star (Washington D.C. Wednesday January

19, 1972) “the New American Indian Movement is considering a suit against the

Washington Redskins ... [a]s for the Washington Redskins, the movement suggests that

‘insult is added to injury’ when the Redskins are sometimes referred to as ‘the Skins.’”)

TTABVue 77, p. 14; Star Tribune (November 1, 1991) (“The American Indian Movement

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Cancellation No. 92046185

12. Usage labels sometimes result from pressure groups trying to influence the

lexicographer.184

and others have for decades urged professional teams to drop Indian names … . Indian

activist Russell Means even sued the Cleveland Indians in 1972.”) (TTABVue 71, p. 21, 33-

35).

184 Butters Report p. 5, (TTABVue 129, p. 41; 165 p. 8) (“Usage labels are subject to

sociopolitical pressure. … [W]hat constitutes a significant-enough semantic change to

warrant the revision of a dictionary entry is often a judgment call, one which is furthermore

highly subject to overt and covert sociopolitical pressures, especially where possible changes

in connotation and usage are concerned. ... ‘Quite simply, it is a concerted attempt by

various pressure groups to force dictionary editors to … abandon the traditions of setting

down the language as it is actually used, however, disagreeable, regrettable, or uncongenial

the use.’”) p. 5-6, quoting Landau, Sydney, Dictionaries The Art and Craft of Lexicography

(1984)). Barnhart Dep. p. 22 (“But some people that are in lexicography have been known

to be less stalwart and have caved in to suggestions from non-editorial sources.”).

(TTABVue 159, p. 25), see also Barnhart Dep. pp. 80-82 (TTABVue 159, pp. 82-83) and

Barnhart 1997 Dep. pp. 200-201; 210-211 (TTABVue 161, pp. 20; 23). See also Nunberg

Dep. pp. 331-339 (TTABVue 81, pp. 224-232).

Thus, as the referenced minority asserts itself through pressure groups, the general

population “abandon[s] the traditions of setting down the language” as it uses the word.

This is amply demonstrated by the record where the use of REDSKIN or REDSKINS is

rampantly used in literature, newspapers and movies by the mainstream prior to the 1960’s

to refer to Native Americans, and severely drops off, except as to the football team, after the

1960’s. Nunberg Rept. (TTABVue 108, p. 107), (TTABVue 83, p. 85). See also Butters Dep.

Exh. 10 “How to Hate Thy Neighbor A Guide to Racist Maledicta Maledicta II” p. 169

(TTABVue 171, p. 18) (“Redskin Any Native American, after the red warpaint they

traditionally wore when attacking white settlers. Formerly insulting, now seldom used

except in connection with the Washington Redskins football team.”) Mr. Barnhart’s search

of newspapers and other publications from 1969-1996 revealed only 2 percent of the uses of

redskin were references to Native Americans. Barnhart Rept. (TTABVue 129, pp. 7, 17).

As noted by Mr. Barnhart “In recent years the sensitivities of these people [Native

Americans] have caused some speakers of English to adjust their usage of some of these

terms accordingly.” (emphasis added) Barnhart Rept. (TTABVue 129, p. 15). He also

acknowledges the trend in usage labels from “1965 to the present (1992).” “It is clear that

in the last 18 years the opinions of the editors of dictionaries concerning the current usage

of redskin is not uniformly agreed upon. For the first time since 1872 (when dictionaries

began entering the term redskin), editors have begun to report some change in its use.” Id.

Barnhart concludes the term redskin “is acceptable in both formal and informal speech or

writing of educated people” yet his own research demonstrates that it is not so used, at

least in written form from 1969-1996.

Looking at Mr. Barnhart’s research in combination with Nunberg’s research, Mr.

Barnhart’s unequivocal conclusion is in conflict with the underlying data. Similarly, Dr.

Butter’s unequivocal conclusion that the term redskin is a “minor variant” for American

Indian is contradicted by his acknowledgement of dictionaries labeling it as offensive

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13. From the mid-1960’s to 1996, the word ‘redskin(s)’ has dropped out of written

and most spoken language as a reference to Native Americans.185

14. From at least the mid-1960’s to 1996, the words ‘Native American,’ ‘Indian,’ and

‘American Indian’ are used in spoken and written language to refer to Native

Americans.186

15. The usage labels appear and the use of the word redskin(s) disappears because

it is increasingly recognized that the term is offensive and disparaging during the

relevant time period as Native Americans raise awareness about the offensive

nature of the term redskin(s).

Native American Objection to Use of the Word Redskins for Football Teams

16. Since 1994, Jo Ann Chase has been the Executive Director of the NCAI.187

17. The membership of the NCAI consists of Native American tribes and

individuals.188

during the relevant time period. Butters Dep. (TTABVue 163, pp. 10, 20); Butters Rept.

(TTABVue 129, p. 51). Because the conclusions of Mr. Barnhart and Dr. Butters are in

direct conflict with the usage labels and the disappearance of the term from American

English, since the 1960’s, the time period with which we are concerned, we give their

ultimate conclusions little weight.

185This is not in dispute see Pro-Football, 68 USPQ2d at 1234. Nunberg 2/18/97 Dep.

(TTABVue 81, pp. 200-201); Barnhart Dep. (TTABVue 159, p. 72). The trial record includes

evidence on this point up until 1996; the Harjo trial period ended on June 3, 1997. Pro-

Football, Inc. v. Harjo, 45 USPQ2d 1789 (TTAB 1998). Respondent points to Mr. Butter’s

statement that the appearance of the term “redskins” in connection with its team in

newspaper sport pages indicates that “they” (presumably the editors) find no pejorative

connotations what[so]ever to the word.” Pet’rs’ Br. p. 28 quoting Butters Rebuttal Report

(TTABVue 151). However, the fact that people other than the referenced group continue to

use the term in one last context is not compelling evidence that the referenced group does

not find it to be disparaging.

186 Id.

187 Chase Dep. p. 4 (TTABVue 98, p. 10).

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18. Member tribes, through resolution, designate a delegate for the purpose of

representing them in NCAI and voting on NCAI resolutions. 189

19. The Executive Council of NCAI consists of the official representative delegates

of the member tribes of the organization.190

20. The Executive Council is the decision-making entity for the organization. 191

21. The member tribes vote on resolutions by voice vote which are usually

unanimous.192

22. The quorum for the Executive Council is one third of the member tribes of the

organization.193

23. The delegates attending the Executive Council vote on behalf of the tribes. 194

24. Resolutions are read out before the membership prior to the vote. 195

25. Resolutions are the policy of the NCAI.196

26. In 1996, 206 tribes were NCAI members.197

27. Approximately 150 tribes were members in 1993.198

188 NCAI By-Laws (TTABVue 83, p. 42). See also Chase Dep. p. 28, Ex. 108 (TTABVue 98,

p. 34).

189 Chase Dep. p. 30.

190 Chase Dep. p. 30.

191 Chase Dep. p. 30.

192 Chase Dep. p. 42.

193 Chase Dep. p. 43, 44; By-Laws.

194 Chase Dep. p. 55.

195 Chase Dep. p. 62.

196 Chase Dep. p. 47.

197 Chase Dep. p. 54.

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28. On January 18-19, 1993 NCAI passed resolution 93-11 which reads in pertinent

part:

NCAI is the oldest and largest intertribal organization

nationwide representative of and advocate for national,

regional, and local tribal concerns; …

[T]he term REDSKINS is not and has never been one of

honor or respect, but instead, it has always been and

continues to be a pejorative, derogatory, denigrating,

offensive, scandalous, contemptuous, disreputable,

disparaging and racist designation for Native American’s

[sic] and

[T]he use of the registered service marks identified in

Exhibit B to this resolution by the Washington Redskins

football organization, has always been and continues to be

offensive, disparaging, scandalous, and damaging to

Native Americans.199

198 “The National Congress of American Indians, representing approximately 150 tribal

governments, calls it a racial slur.” Statement to the [Miami] University Senate, Dr.

Britton Harwood 1993 Minutes from University Senate April 5, 1993, (TTABVue 95, p. 19).

See also The Voice (April 27, 1993) “Harwood Addresses U. Senate on ‘Redskin’ Issue” (“The

National Congress of American Indians, representing approximately 150 tribal

governments, calls it a racial slur.”) (TTABVue 95, p. 29); letter from Dale Pullen to

Charlie Drayton wherein it is stated that NCAI represented 30 percent of the Native

Americans in 1992. (TTABVue 98, at 111, TTABVue 142, p. 43) (shown as the Deloria

Exhibit 35 also presented as exhibit 41 in the Chase deposition). In 1995, there were

approximately 500 recognized tribes in the United States; 150 would have been about one

third in 1993. 1995 Federal Register, respondent’s Notice of Reliance (TTABVue 151, pp.

57-63). Ms. Chase also testified that there were between 100 – 400 members at the time

the resolution was taken. Chase Dep. p. 54. See also 1992 WTOP telephone survey of tribal

leaders submitted by respondent, shows approximately 30 percent of tribal leaders found

the name offensive and wanted it changed. John Kent Cooke Dep., Ex. 6 (TTABVue 149,

pp. 43-68; TTABVue 156, pp. 11-38).

By contrast, the 1992 letters from “tribal leaders” submitted by respondent are purportedly

from 6 tribes and the Inter-tribal Council resolution represents 5 tribes in Oklahoma. In

addition, the letter from Mr. Roberts explicitly only references his personal belief and not

the tribe’s collective opinion. (TTABVue 142, p. 36) (“If I were opposed to the football team

name… The Washington Redskins is a team I admire … Thank you for this opportunity to

express my views…”).

199National Congress of American Indians Est. 1944 Resolution No. Ex DC-93-11,

(TTABVue 63, p. 71).

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29. This resolution represents the view of the member tribes that the word

REDSKINS has always been disparaging as used for the name of a football team,

this includes 1967-1990.200

30. The president of NCAI is elected by the membership.201

31. In 1972 the president of NCAI, as a representative of NCAI, met with Edward

Bennett Williams (then owner of the team) requesting that the team cease use of

the name REDSKINS because it is disparaging.202

200 At oral hearing, in arguing that petitioners have not satisfied their burden by a

preponderance of the evidence, respondent’s counsel noted the absence of resolutions from

1967 to 1990. Obviously, contemporaneous resolutions, from NCAI or other organizations

or tribal bodies, would be significant evidence; however, given the evidence of record that

corroborates that the views of past perception expressed in 1993 were also held in 1967,

1972, 1974, 1978 and 1990, we find the evidence of record to be sufficient.

201 NCAI By-laws (TTABVue 83, p. 43).

202 Gross Dep. pp. 19-20 (TTABVue 79, pp. 181-182). Letter from Edward Bennett Williams

to Commissioner Rozelle (March 30, 1972) (“I met with a delegation of American Indian

leaders. … Among those who met with me yesterday were … Leon F. Cook, President,

National Congress of American Indians.”) (TTABVue 105, p. 81); Gross Dep. pp. 19-20

(TTABVue 79, pp. 181-182). See also Washington Daily News (Thursday March 30, 1972)

(From an article discussing the meeting with Edward Bennett Williams the following

excerpt “After Petite’s fist shaking speech, Williams closed this first meeting with the

American Indians who claim his team nickname, ‘Redskins’ is a racial slur. The eleven

Indian representatives included ... Leon Cook, president of the National Congress of

American Indians which claims a membership of 300,000; Dennis J. Banks, national

chairman of the American Indian Movement.” (emphasis added) (TTABVue 48, p. 33); The

Washington Post (Thursday March 30, 1972) (“A DELEGATION OF 11 people representing

a variety of Indian organizations ... Among the group ... requesting that ‘the derogatory

racial epithet ‘Redskins’’ be banished from the Washington sports scene were ...Leon Cook,

president of the National Congress of American Indians which claims a membership of

350,000 Indians, according to the protesting group’s informal leader, Harold Gross, an

attorney for another Indian organization.”) (emphasis added) (TTABVue 48, pp. 85-86).

Harold Gross testified that he worked for NCAI in 1969 and would have first-hand

knowledge as to the membership in that time period. Gross Dep. p. 37 (TTABVue 79, p.

199).

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32. In 1972, the president of NCAI, along with others, requested that “the

derogatory racial epithet “Redskins” be withdrawn as a team nickname… .”203

33. In 1972, NCAI represented approximately 300,000 Native Americans out of

approximately 792,730.204

34. NCAI has been in existence since 1944 and between 1972 and 1993, a span of

twenty years, the record shows that NCAI has represented approximately one third

of Native Americans. It is reasonable to infer that NCAI represented approximately

one third of Native Americans merely five years earlier in 1967.

35. NCAI objected to respondent’s use of the word REDSKINS in the late 1960’s.205

36. NCAI objected to respondent’s use of the word REDSKINS in 1972.206

37. NCAI objected to respondent’s use of the word REDSKINS in 1988.207

38. NCAI objected to respondent’s use of the word REDSKINS in 1992.208

203 “Recommendations to the Washington, D.C. Professional Football Team” (TTABVue 77,

p. 9). Some of the others included Ron Aquilar, President of the Washington Chapter

National Indian Youth Council. Mr. Aquilar, in his capacity as President of the

Washington Chapter National Indian Youth Council sent a letter to the “Washington

Redskin Football Team” objecting to the team name REDSKINS. (“I don’t see why it is so

hard for people to understand why the word ‘Redskin’ is a racial slur, therefore degrading.

This fact is established by the everyday racism towards my people ... Regardless of whether

the word insults ten of us or ten thousand of us that is not the point.”) (TTABVue 77, p. 17).

204 Washington Daily News, supra, The Washington Post, supra; Gross Dep., supra. See

also letter from Billy Kevin Gover, a “Comanche Indian from Oklahoma,” dated July 18,

1972, also indicating 300,000 Native Americans object to the name REDSKINS. (TTABVue

77, p. 6). “Historical Census Statistics on Population Totals by Race,” supra.

205 Lakota Times (TTABVue 71, p. 89). See also NCAI Sentinel (1969) (TTABVue 48, pp. 80-

82).

206 Gross Dep. pp. 19-20 (TTABVue 79, pp. 181-182).

207Michigan Civil Rights Commission Report (October 1988) (“The National Congress of

American Indians, the oldest and largest national Indian group in the U.S. also supports

this organization’s [Fan’s Against Indian Racism] efforts to have the Washington team’s

name changed.”) (TTABVue 91, p. 101).

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39. NCAI objected to respondent’s use of the word REDSKINS in 1993.

CONCLUSIONS

As noted above, as was found in the Harjo case, both by the Board and the

District Court, and conceded by respondent, “the meaning of the matter in

question,” retains the core meaning Native American when used as the name of

respondent’s sports team. More specifically, the term “redskin(s)” as used by

respondent in its registered marks when used in connection with professional

football retains the “likely meaning” Native Americans. Much of respondent’s

evidence is directed to the first part of the test. Respondent’s argument regarding

“secondary meaning” in the sense that it has “a secondary or alternate meaning”

denoting a football team, is not persuasive in that the “secondary meaning” has not

stripped the word “redskins” of its “ethnic” meaning.209 See Squaw Valley, at 1282

(emphasis added) (Squaw Valley ski resort meaning of squaw is “likely meaning”

“rather than the meaning of Native American woman or wife”).210

We turn then to the second question, “was the meaning one that may have

disparaged” a substantial composite, which need not be a majority, of Native

Americans, at the times of the registrations. The crux of this case is whether or not

this record supports petitioners’ contention that the answer to that question is yes.

208 Lakota Times (March 4, 1992) (“D.C. council to consider ‘Redskins’ protest”) (TTABVue

71, p. 71); Lakota Times (September 16, 1992) (“Action taken to chop ‘Redskins’ trademark”)

(TTABVue 71, p. 89); The Circle (October 1992) (“National Coalition Challenges Federal

Trademark Registrations”).

209 Pet'rs' Br. p. 26 n. 94.

210We further note that there was no evidence of use of Native American indicia in

connection with the term “squaw” when used with ski-related goods. Squaw Valley, 80

USPQ2d at 1279.

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Respondent contends that it does not and characterizes the record as, at most,

showing a handful of individuals (the Harjo petitioners, the current petitioners, the

letter writers, a few individuals from various organizations) who have their own

individual opinion. Such a characterization, however, ignores, and is contradicted

by the substantial evidence of record.

NCAI Resolution 93-11 represents the views of a substantial composite of

Native Americans. NCAI consists of member tribes from across the United States

and they voice their collective opinion through the Executive Council by resolutions.

A resolution from the oldest Native American organization composed of tribes from

across the United States and structured in a manner to represent the collective

opinion of its membership through resolutions is strong evidence of the views of

Native Americans.211 The NCAI members throughout the relevant time period

represent approximately 30 percent of Native Americans.212

211 This type of evidence is particularly useful here where the claim pertains to the views of

a group rather than just an individual opinion.

The dissent points to Native American use of Indian imagery for sports teams. However,

the evidence of various instances where predominantly Native American schools or groups

have adopted other designs and/or words referencing Native Americans and/or Native

American culture in connection with the schools or sports teams, has no relevance to the

use of the word “Redskins.” E.g., Haskell Indian Nations University displaying an Indian

head logo. The title of the newspaper article relied on by the dissent, in fact, supports the

majority position: “‘Chop’ is spreading, but Indians Disagree on What is Offensive Most

Decry ‘Redskins’ Nickname.” Star Tribune (Minn.), Nov. 1, 1991, at 2B, petitioners’ Notice

of Reliance Ex. 20 (TTABVue 71, pp. 21, 33-35). In any event, the fact that differences of

opinion exist within the group does not obviate a claim of disparagement. Heeb, 89

USPQ2d at 1077 (“Although some in the community may not find it disparaging, as noted

above, the evidence shows that there is a substantial component of those in the named

group who do.”).

212 As discussed supra, the record clearly points to specific numbers throughout the time

period. Therefore, the dissent’s statement at being “astound[ed] that the petitioners did not

submit any evidence regarding the Native American population during the relevant time

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Cancellation No. 92046185

The statement about Native Americans’ past views of the word REDSKINS in

the 1993 resolution is corroborated by the meeting held with the former owner

Edward Bennett Williams in 1972. At the meeting, the president of NCAI at the

time, Mr. Leon Cook, represented that Native Americans find the term REDSKINS

to be a racial slur. Respondent characterizes Mr. Cook’s views as solely his own and

opines that he merely represented himself at this meeting. The president of NCAI

is elected by the membership to represent them. It is unreasonable and illogical to

characterize the views regarding something of importance to the members of an

organization as only belonging to that individual president where he is attending in

his capacity as the president of that organization. It is equally unreasonable and

illogical to reduce Mr. Cook’s representative capacity in such a manner. His

attendance at this meeting was, not surprisingly, referenced as representing an

Indian organization, both by the press and by Mr. Williams himself.213

The trend in dictionary usage labels also corroborates the time frame of

objections from Native Americans starting in the late sixties and continuing

frame” and characterization of the evidence as “a house of cards,” is simply incorrect.

Moreover, taking judicial notice of the U.S. Census population statistics did not require any

“gyrations.” As noted earlier, while more evidence would provide more support, the existing

record shows, by a preponderance of the evidence, that a substantial composite of the

referenced group found the term disparaging during the relevant time period when used in

connection with respondent’s services and respondent has not rebutted that showing by

providing a handful of examples of some members of the referenced group holding a

different opinion. Heeb, 89 USPQ2d at 1070. See also West Fla. Seafood, Inc. v. Jet

Restaurants, 31 USPQ2d at 1663 (Board should look at evidence as a whole to recognize

“clear interrelationships existing between the several pieces of evidence submitted.”)

213 Mr. Williams appropriately refers to them as “a delegation of American Indian

leaders….” Letter from Edward Bennett Williams to Commissioner Pete Rozelle (March 30,

1972), (TTABVue 105, p. 81). See also Washington Post (March 30, 1972) (TTABVue 48, pp.

85-86).

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through the nineties as lexicographers begin and finally uniformly label the term as

“offensive” or “disparaging.”214 The recognition that this racial designation based on

skin color is disparaging to Native Americans is also demonstrated by the near

complete drop-off in usage of “redskins” as a reference to Native Americans

beginning in the 1960’s.

The record establishes that, at a minimum, approximately thirty percent of

Native Americans found the term REDSKINS used in connection with respondent’s

services to be disparaging at all times including 1967, 1972, 1974, 1978 and 1990.

Section 2(a) prohibits registration of matter that disparages a substantial

composite, which need not be a majority, of the referenced group. Thirty percent is

without doubt a substantial composite. To determine otherwise means it is

acceptable to subject to disparagement 1 out of every 3 individuals, or as in this

case approximately 626,095 out of 1,878,285 in 1990.215 There is nothing in the

Trademark Act, which expressly prohibits registration of disparaging terms, or in

214 See Chicago Tribune (May 21, 1992) (“In pros or preps, ‘Redskins’ a slur” … “And let

there be no doubt that ‘redskin’ is a vile word. Contemporary dictionaries acknowledge it

as a disparaging and offensive slang term”) (TTABVue 71, p. 82).

215 “Historical Census Statistics on Population Totals by Race,” supra. In this regard we

note that, in commenting on the results of the WTOP survey where 28 percent of tribal

leaders voiced objection to the word REDSKINS for the name of a football team, Mr.

Vaughn, as an employee of respondent, voiced the opinion that it was a “favorative [sic]

response to the name ‘the Redskins’ being used by the Washington football team among

citizens of this area and also among Native Americans.” Vaughn Dep. p. 70 (TTABVue 158,

p. 73). This indicates an acceptance by respondent of the possibility of disparaging

approximately one third of Native Americans. Respondent’s argument, contrary to

established precedent, that a substantial composite should be a majority of the referenced

group reflects this attitude, i.e., that it is acceptable to disparage up to forty-nine percent of

Native Americans. Resp. Br. p. 21. This is clearly in direct contradiction to the legal test

enunciated by our primary reviewing court and as set forth in our pretrial order.

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its legislative history, to permit that level of disparagement of a group and,

therefore, we find this showing of thirty percent to be more than substantial.

Respondent has introduced evidence that some in the Native American

community do not find the term “Redskin” disparaging when it is used in connection

with professional football. While this may reveal differing opinions within the

community, it does not negate the opinions of those who find it disparaging. The

ultimate decision is based on whether the evidence shows that a substantial

composite of the Native American population found the term “Redskins” to be

disparaging when the respective registrations issued. Heeb Media LLC, 89 USPQ2d

at 1077. Therefore, once a substantial composite has been found, the mere

existence of differing opinions cannot change the conclusion.

In view of the above, petitioners have shown by a preponderance of the

evidence that a substantial composite of Native Americans found the term

REDSKINS to be disparaging in connection with respondent’s services during the

relevant time frame of 1967-1990. Accordingly, the six registrations must be

cancelled as required under Sections 2(a) and 14(3) of the Trademark Act. 216

216 The District Court also expressed concern that the Board was silent as to “whether it

paid cautious heed to the admonition that in proceedings where a party has waited longer

to bring a cancellation petition, that party has a very serious burden of making its case,

even though the standard of proof is not technically different and remains ‘a preponderance

of the evidence.’” Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1246. As stated in Rockwood

Chocolate Co., Inc. v. Hoffman Candy Co., 152 USPQ at 601, the Board exercises due

caution in making a determination to cancel a registration, in particular, registrations that

have existed for decades. We note, however, that although the first attempt to cancel the

registrations did not occur until 1992, the out of court challenge to use of the marks in the

six registrations, based on this record, has been ongoing for several decades. Respondent

was not blindsided by either Harjo or this proceeding, but merely faces the inevitable use

by petitioners of a predictable legal option, employed after requests and protests did not

result in discontinuation of the use and registration of the term REDSKINS.

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LACHES DEFENSE

In Harjo v. Pro Football, Inc., 30 USPQ2d 1828, the Board held that

respondent’s laches defense was not applicable because there was a public policy

interest at stake rather than just the petitioners’ personal interest.

[T]here exists a broader interest – an interest beyond the

personal interest being asserted by the present

petitioners – in preventing a party from receiving the

benefits of registration where a trial might show that

respondent’s marks hold a substantial segment of society

up to public ridicule, [and] we will not deny petitioner the

right to attempt to make their case by allowing

respondent’s equitable defenses [laches].

Id. at 1831.

On appeal, however, the U.S. District Court for the District of Columbia

reversed the Board and held that the Trademark Act does not unequivocally bar

respondent’s laches defense and permitted respondent to assert laches as an

affirmative defense. Pro-Football, Inc. v. Harjo, 57 USPQ2d at 1145, aff’d, 75

USPQ2d at 1527. Nevertheless, the District Court noted that the applicability of

laches “is dependent upon the equities of the factual scenarios within which it is

raised.” 57 USPQ2d at 1145. In the order issued in this case on May 31, 2011, the

Board stated that “[b]ecause … this cancellation proceeding is essentially a

relitigation of what transpired in the Harjo case before the Board, we will follow the

preced

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