Big news out of Washington D.C. today. The United States Patent and Trademark Office “USPTO” issued a ruling today that canceled the trademark for Washington Redskins. The order canceling the trademark found that the term “Redskin” was disparaging stating that although there was “evidence that some in the Native American community do not find the term “Redskin” disparaging when it is used in connection with professional football. While this may reveal differing opinions within the community, it does not negate the opinions of those who find it disparaging. The ultimate decision is based on whether the evidence shows that a substantial composite of the Native American population found the term “Redskins” to be disparaging when the respective registrations issued. Heeb Media LLC, 89 USPQ2dat 1077. Therefore, once a substantial composite has been found, the mere existence of differing opinions cannot change the conclusion.”
As the owner of a trademark and a lawyer, I find this decision fascinating. Because I do not practice trademark or patent law, I did not know that the USPTO reviewed evidence and had a panel make a decision. Indeed, there was even a dissenting opinion or “minority opinion”, just like appellate courts might issue if a judge does not agree with the majority. Not being of Native American descent (and being a Dallas Cowboys fan), I have no “dog in this hunt” as people say, but I credit the panel for reviewing all the evidence and making a decision based upon a thorough review of the law. The panel found that the trademark statute that states that if the “substantial composite” of the affected group, here Native Americans, finds the mark to be disparaging, then it must be canceled. The panel did not interpret the term “composite” statute to mean a majority. I strongly support the law that if a substantial number of a class of people find a trademarked name to be disparaging, then government should not be in the business of protecting the term for financial gain.
The appeal will take a while, and much will be made in the media and in the appeals over what the term “substantial composite” means. In the meantime, I am impressed that the panel took such pains to reference the evidence and expert opinions it used in determining why it believes a substantial composite of Native Americans find the term offensive.