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

> Trademark Trial and Appeal Board · June 18, 2014

URL: https://www.frixlaw.com/law-library/cases/11283808

## Case

- **Court:** Trademark Trial and Appeal Board
- **Decided:** June 18, 2014
- **Precedential status:** Published
- **Opinion:** Opinion by Bergsman
- **Judges:** Kuhlke, Cataldo, Bergsman(D)
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11283808

## Opinion text

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.

2
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.

3
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.

7
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).

17
Cancellation No. 92046185

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).

18
Cancellation No. 92046185

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).

19
Cancellation No. 92046185

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.

20
Cancellation No. 92046185

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
21
Cancellation No. 92046185

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.

22
Cancellation No. 92046185

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

23
Cancellation No. 92046185

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.

24
Cancellation No. 92046185

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.

25
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).

26
Cancellation No. 92046185

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).

27
Cancellation No. 92046185

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).

28
Cancellation No. 92046185

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).

29
Cancellation No. 92046185

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.

30
Cancellation No. 92046185

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.

31
Cancellation No. 92046185

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.”)

32
Cancellation No. 92046185

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).

33
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).

34
Cancellation No. 92046185

“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).

35
Cancellation No. 92046185

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).

36
Cancellation No. 92046185

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).

37
Cancellation No. 92046185

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).

38
Cancellation No. 92046185

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).

39
Cancellation No. 92046185

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).

40
Cancellation No. 92046185

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).

41
Cancellation No. 92046185

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.

42
Cancellation No. 92046185

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
43
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).

44
Cancellation No. 92046185

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)).

45
Cancellation No. 92046185

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.

46
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).

47
Cancellation No. 92046185

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).

48
Cancellation No. 92046185

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).

49
Cancellation No. 92046185

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).

50
Cancellation No. 92046185

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).

51
Cancellation No. 92046185

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).

52
Cancellation No. 92046185

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).

53
Cancellation No. 92046185

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).

54
Cancellation No. 92046185

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).

55
Cancellation No. 92046185

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).

56
Cancellation No. 92046185

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).

57
Cancellation No. 92046185

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).

58
Cancellation No. 92046185

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
59
Cancellation No. 92046185

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
60
Cancellation No. 92046185

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 member

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11283808. Public record. Not legal advice.