Harjo et al.v.Pro-Football, Inc.

Trademark Trial and Appeal Board

Apr 2, 1999

No. 92021069 (T.T.A.B. Apr. 2, 1999)

Hearing: Paper No. 100
May 27, 1998 CEW
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_______
Trademark Trial and Appeal Board
_______
Suzan Shown Harjo; Raymond D. Apodaca; Vine Deloria, Jr.;
Norbert S. Hill, Jr.; Mateo Romero; William A. Means;
and Manley A. Begay, Jr.
v.
Pro-Football, Inc.
_______
Cancellation No. 21,069
to Registration Nos. 1,606,810; 1,085,092; 987,127;
986,668; 978,824; and 836,1221
_______
Michael A. Lindsay, Stephen R. Baird and Joshua J. Burke of
Dorsey & Whitney for petitioners.
John Paul Reiner, Robert L. Raskopf, Marc E. Ackerman,
Claudia T. Bogdanos and Lindsey F. Goldberg of White & Case
for respondent.
_______
Before Sams, Cissel and Walters, Administrative Trademark
Judges.2

1 Throughout this proceeding, petitioners have included a reference to
Registration No. 1,343,442 in the caption of all filings. However, as
indicated in the October 5, 1992, order of the Board instituting this
proceeding, the petition to cancel, filed September 10, 1992, was not
instituted as to Registration No. 1,343,442 because it was moot at the
time of filing. Registration No. 1,343,442, which issued June 18,
1985, for the mark SKINS for “entertainment services in the form of
professional football games and exhibitions” in International Class 41,
was canceled as of August 20, 1992, under the provisions of Section 8
of the Trademark Act.
2 Assistant Commissioner Philip Hampton, II, who heard the oral argument
in this case, resigned prior to the issuance of this decision.
Therefore, Administrative Trademark Judge Robert Cissel has been
substituted for Assistant Commissioner Hampton as a member of the panel
Cancellation No. 21,069
2
Opinion by Walters, Administrative Trademark Judge:
Table of Contents
Introduction
The Pleadings
Summary of the Record
The Parties
Preliminary Issues
1997 NCAI Resolution
Constitutionality of Section 2(a) of the Trademark Act
Indian Trust Doctrine
Protective Order
Respondent’s Motion to Strike Notice of Reliance
and Testimony Depositions
Respondent’s Motion, in its Brief, to Strike Testimony
and Exhibits
1. Objections to Testimony and Exhibits in their
Entirety
2. Objections to Specified Testimony and
Exhibits
3. Objections to Notice of Reliance Exhibits
Summary of the Arguments of the Parties
Petitioners
Respondent
The Evidence
The Parties’ Notices of Reliance
Petitioners
1. Summary of Petitioners’ Witnesses and
Evidence
2. Testimony of the Seven Petitioners
3. Harold Gross
4. Resolutions by Organizations
5. History Expert
6. Social Sciences Experts
Respondent
1. Summary of Respondent’s Witnesses and
Evidence
2. Respondent’s Witnesses
Linguistics Experts
1. Denotation and Connotation
2. Use of the Word “redskin(s)”

deciding this case. The change in the composition of the panel does
not necessitate a rehearing of the oral argument. See, In re Bose, 772
F.2d 866, 227 USPQ 1, 4 (Fed. Cir. 1985).
Cancellation No. 21,069
3
3. Dictionary Definitions of “redskin”
4. Use of “redskin(s)” in Modern Context
5. Findings of Fact Regarding Linguists’
Testimony
Film Expert
Survey Evidence
1. Petitioners’ Survey
2. Respondent’s Rebuttal
3. Findings of Fact Regarding Survey
Applicable Legal Principles
Section 2(a)
Scandalous Matter
Matter Which May Disparage
Matter Which May Bring Persons … into Contempt
or Disrepute
Legal Analysis
Disparagement
Contempt or Disrepute
Scandalousness
Decision
Introduction
Suzan Shown Harjo, Raymond D. Apodaca, Vine Deloria,
Jr., Norbert S. Hill, Jr., Mateo Romero, William A. Means,
and Manley A. Begay, Jr. filed their petition to cancel the
registrations of the marks identified below, all owned by
Pro-Football, Inc.:
THE WASHINGTON REDSKINS3 and REDSKINS4 for
“entertainment services – namely, presentations
of professional football contests”;

3 Registration No. 978,824, issued February 12, 1974, in International
Class 41. Sections 8 and 15 affidavits accepted and acknowledged,
respectively. Registration renewed for ten years from February 12,
1994.
4 Registration No. 1,085,092, issued February 7, 1978, in International
Class 41. Sections 8 and 15 affidavits accepted and acknowledged,
respectively. Registration renewed for ten years from February 7,
1998.
Cancellation No. 21,069
4
REDSKINETTES for “entertainment services, namely,
cheerleaders who perform dance routines at
professional football games and exhibitions and
other personal appearances”5;
for “entertainment services – namely, football
exhibitions rendered live in stadia and through
the media of radio and television broadcasts”6;
and the following two marks for “entertainment
services – namely, presentations of professional
football contests”:
7

5 Registration No. 1,606,810, issued July 17, 1990, in International
Class 41. Section 8 affidavit accepted.
6 Registration No. 836,122, issued September 26, 1967, in International
Class 41. Sections 8 and 15 affidavits accepted and acknowledged,
respectively. Registration renewed for twenty years from September 26,
1987.
7 Registration No. 986,668, issued June 18, 1974, in International Class
41. Section 8 affidavit accepted. Registration renewed for ten years
from June 18, 1994.
Cancellation No. 21,069
5
and
8
The Pleadings
Petitioners allege that they are Native American9
persons and enrolled members of federally recognized Indian
tribes. As grounds for cancellation, petitioners assert
that the word “redskin(s)”10 or a form of that word appears
in the mark in each of the registrations sought to be
canceled; that the word “redskin(s)” “was and is a
pejorative, derogatory, denigrating, offensive, scandalous,
contemptuous, disreputable, disparaging and racist
designation for a Native American person”; that the marks
in Registration Nos. 986,668 and 987,127 “also include
additional matter that, in the context used by registrant,

8 Registration No. 987,127, issued June 25, 1974, in International Class
41. Sections 8 and 15 affidavits accepted and acknowledged,
respectively. Registration renewed for ten years from June 25, 1994.
9 We adopt the term “Native American” throughout this opinion, except
when quoting from evidence, testimony or the parties’ briefs.
10 Throughout this opinion we use “redskin(s)” to include both the
singular and plural forms of the word “redskin.” If any legal
conclusions are to be reached regarding distinctions that may exist
between the singular and plural forms of “redskin,” such issues will be
addressed separately herein.
Cancellation No. 21,069
6
is offensive, disparaging and scandalous”; and that
registrant’s use of the marks in the identified
registrations “offends” petitioners and other Native
Americans. Petitioners assert, further, that the marks in
the identified registrations “consist of or comprise matter
which disparages Native American persons, and brings them
into contempt, ridicule, and disrepute” and “consist of or
comprise scandalous matter”; and that, therefore, under
Section 2(a) of the Trademark Act, 15 U.S.C. 1052(a), the
identified registrations should be canceled.
Respondent, in its answer, denies the salient
allegations of the petition to cancel and asserts11 that
“through long, substantial and widespread use, advertising
and promotion in support thereof and media coverage, said
marks have acquired a strong secondary meaning identifying
the entertainment services provided by respondent in the
form of professional games in the National Football
League”12; and that “the marks sought to be canceled herein

11 In its answer as filed, respondent asserted eleven “affirmative
defenses,” ten of which were challenged by petitioners in a motion to
strike. The Board, deciding petitioners’ motion on March 11, 1994
(pub’d. at 30 USPQ2d 1828), struck all of respondent’s affirmative
pleadings except those set forth herein.
12 In deciding not to strike this “defense,” the Board stated that proof
that respondent’s marks have acquired “secondary meaning” would not
establish a good defense to petitioners’ claims under Section 2(a).
However, in view of respondent’s explanation of this paragraph in its
answer, the Board concluded that it is not a “secondary meaning”
Cancellation No. 21,069
7
cannot reasonably be understood to refer to the Petitioners
or to any of the groups or organizations to which they
belong [as] the marks refer to the Washington Redskins
football team which is owned by Respondent and thus cannot
be interpreted as disparaging any of the Petitioners or as
bringing them into contempt or disrepute.”13
Summary of the Record
The record consists of: the pleadings; the files of
the involved registrations; numerous discovery and
testimony depositions on behalf of petitioners and
respondent, respectively, all with accompanying exhibits14;
and numerous exhibits made of record by petitioners’ and
respondent’s notices of reliance. Both parties filed
briefs on the case, petitioners filed a reply brief, and an
oral hearing was held.

defense. Rather, it is “a mere elaboration of respondent’s denial of
the allegations of paragraphs 1, 2 and 3 of the petition to cancel.”
13 As with the preceding allegation, this allegation is also essentially
an elaboration of respondent’s denial of petitioner’s allegations,
rather than an affirmative defense.
14 Petitioners and respondent stipulated (under an agreement filed June
3, 1997, and modified July 18, 1997), inter alia, to the admission of
all discovery depositions as trial testimony; and to the admission as
trial or rebuttal testimony of the depositions of certain specified
witnesses despite the fact that their depositions were taken outside
the appropriate periods for taking those depositions. The parties also
stipulated that such depositions would remain subject to objections
properly raised.
Cancellation No. 21,069
8
The Parties
Petitioners are seven Native American persons. Each
petitioner is an enrolled member of a different federally
recognized Indian tribe. Further, each petitioner is
active in his or her respective tribal community and
belongs to, or has belonged to, tribal organizations as
well as national organizations that are composed of Native
American persons, or national organizations that are
interested in issues pertaining to Native American persons,
or both.
Respondent is the corporate owner of the Washington
Redskins, a National Football League football team located
in the Washington, D.C. metropolitan area. Respondent is
the owner of the six registrations that are the subjects of
this petition to cancel.
Preliminary Issues
Before turning to the merits of this case, there are
several outstanding procedural and evidentiary issues that
we must address. As the record reveals, the parties have
been extremely contentious, and the evidence and objections
thereto are voluminous. Further, in their zeal to pursue
their positions before the Board, it appears that the
parties have continued to argue, through the briefing
period and at the oral hearing, certain issues that have
Cancellation No. 21,069
9
already been decided by the Board in this case. In
particular, both parties have continued to argue their
positions regarding the admissibility of, and weight that
should be accorded to, a 1997 resolution of the National
Congress of American Indians (NCAI). Additionally,
respondent has devoted a significant portion of its lengthy
brief to its argument regarding the constitutionality of
Section 2(a) of the Trademark Act. We address these two
points and the remaining procedural and evidentiary issues
below.
1997 NCAI Resolution
The Board, in its decision of February 6, 1998 (pub’d.
at 45 USPQ2d 1789), denied, inter alia, petitioners’
motions to reopen testimony (1) to introduce, by way of the
testimonial deposition of W. Ron Allen, a resolution
adopted by the National Congress of American Indians (NCAI)
on June 8-11, 1997, and accompanying documents, and (2) to
introduce two issues of the periodical Copy Editor and
related documentation; and granted respondent’s motion to
strike W. Ron Allen’s testimonial deposition and
accompanying exhibits. To the extent that it may be
necessary to do so, we reaffirm that decision of the Board
and, thus, in reaching our decision herein, we have not
Cancellation No. 21,069
10
considered the aforementioned evidence or the parties’
further arguments in connection therewith.
Constitutionality Of Section 2(a) Of The Trademark Act
In its order of March 11, 1994 (pub’d at 30 USPQ2d
1828, 1832-1833), the Board granted petitioners’ motion to
strike, inter alia, respondent’s “affirmative defenses”
asserted in paragraphs 11,15 1216 and 1317 of respondent’s
answer. Respondent states in its brief that it “recognizes
the Board’s decision that to strike Section 2(a) from the
Lanham Act as unconstitutional is beyond its authority …
[but] the Board nonetheless remains obliged to apply the
statute’s terms in a constitutional manner” (respondent’s
brief, n. 29, emphasis in original). Respondent contends
that “[c]ancellation of Respondent’s registrations would
curb Respondent’s First Amendment right to communicate

15 This paragraph reads as follows: “Petitioners’ claims under Section
14 of the Lanham Act, 15 U.S.C. § 1064, are barred because they are
based upon Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which
abridges the Respondent’s right to freedom of speech provided by the
First Amendment of the United States Constitution. Respondent's
registered marks are a form of speech protected by the First Amendment
of the United States Constitution and thus cannot be regulated or
canceled merely because these Petitioners may find them objectionable.”
16 This paragraph reads as follows: “Petitioners’ claims are barred
because the statutory language of Section 2(a) of the Lanham Act, 15
U.S.C. § 1052(a), relied upon by Petitioners in connection with the
cancellation petition herein under Section 14 of the Lanham Act, 15
U.S.C. § 1064, is unconstitutionally overbroad.”
17 This paragraph reads as follows: “Petitioners’ claims are barred
because the statutory language of Section 2(a) of the Lanham Act, 15
U.S.C.§ 1052(a), relied upon by Petitioners in connection with the
cancellation petition herein under Section § 14 of the Lanham Act, 15
U.S.C. § 1064, is unconstitutionally void for vagueness.”
Cancellation No. 21,069
11
through its trademarks and would therefore impermissibly
regulate commercial speech …” (id. at p.26); and that “[a]s
applied to Respondent, the terms ‘scandalous’ and
‘disparage’ are also unconstitutionally broad” (id.) and,
therefore, respondent’s First and Fifth Amendment rights
are abridged. Finally, respondent argues that a Board
determination in favor of petitioners would “amount to
impermissible viewpoint discrimination” in violation of the
First Amendment (id. at p. 28).
Respondent contends, essentially, that the
constitutional arguments in its brief are distinguished
from its stricken “affirmative defenses” because the
“affirmative defenses” comprise a general attack on the
constitutionality of Section 2(a), whereas the arguments in
respondent’s brief challenge the constitutionality of
Section 2(a) “as applied to respondent.” We believe that
this is a distinction without a difference. Rather, we
find respondent’s constitutionality arguments propounded in
its brief to be, in substance, the same as, or encompassed
by, the “affirmative defenses” asserted in paragraphs 11,
12 and 13 of respondent’s answer. First, respondent’s
argument in its brief that the cancellation of its
registrations would curb its First Amendment right to
communication and impermissibly regulate commercial speech
Cancellation No. 21,069
12
is contained within the broad language of respondent’s
“affirmative defense” asserted in paragraph 11 of its
answer. Further, the “defense” specifically identifies the
effect on respondent and is not stated in general terms.
Second, respondent’s arguments in its brief that the
terms “scandalous” and “disparage” are overbroad and vague
are contained within the unqualified language of paragraphs
12 and 13 of respondent’s answer.
Third, even though it is not expressly identified
therein, we find that respondent’s assertion of
“impermissible viewpoint discrimination” in violation of
the First Amendment is encompassed by the very broadly
pleaded “affirmative defense” asserted in paragraph 11 of
respondent’s answer, wherein respondent asserts a First
Amendment violation generally.18

18 In alleging “impermissible viewpoint discrimination,” respondent
acknowledges the Board’s statements in In re Old Glory Condom Corp., 26
USPQ2d 1261, 1220 n.3 (TTAB 1993), that the issuance of a registration
is neither an endorsement of the goods on which the mark is used, nor
an implicit government pronouncement that the mark is a good one, from
an aesthetic or any other viewpoint. However, respondent then cites
Sons of Confederate Veterans, Inc. v. Glendening, 954 F. Supp. 1099,
1104 (D. Md. 1997), and argues that a decision for petitioners in the
case before us would not be a viewpoint-neutral decision as required by
the First Amendment. In the cited case, the court noted that,
regardless of the forum (i.e., public, limited or designated public, or
private), any government regulation of speech must be viewpoint-
neutral. In that case, in response to complaints of negative racial
connotations, the Maryland Motor Vehicle Administration (MVA) suspended
and recalled license plates, issued to members of the Sons of
Confederate Veterans, which displayed a logo containing the Confederate
battle flag. Finding that the Confederate battle flag does not mean
the same thing to everyone, the court concluded that, in halting the
issuance of the license plates, the MVA had advanced the view of those
Cancellation No. 21,069
13
Again, to the extent that it may be necessary, we
reaffirm the Board’s decision in striking respondent’s
affirmative defenses in paragraphs 11, 12 and 13 of its
answer. Further, that decision is equally applicable to
the constitutional arguments asserted by respondent in its
brief. However, should respondent’s aforementioned
arguments ultimately be found to differ from those set
forth in respondent’s answer, we find such arguments
unpersuasive, as the Board has no authority to determine,
either generally or with respect to respondent, whether
Section 2(a) is overbroad or vague, or to declare
provisions of the Trademark Act unconstitutional. See, In
re McGinley, 660 F.2d 481, 211 USPQ 668, 672 (CCPA 1981),
aff’g 206 USPQ 753 (TTAB 1979). Thus, we have given no
further consideration to respondent’s arguments regarding
the constitutionality of Section 2(a).
Indian Trust Doctrine
Petitioners maintain that the Indian trust doctrine should
be applied by the Board in determining the Section 2(a) issues

offended by the flag and discouraged the viewpoint of those proud of
it, which constituted impermissible viewpoint discrimination.
The logical conclusion of respondent’s line of reasoning in the
case before us is that all Board decisions pertaining to Section 2(a)
scandalousness or disparagement constitute viewpoint discrimination
since the Board must find that a challenged mark either is or is not
scandalous or disparaging. This is, essentially, an attack on the
constitutionality of Section 2(a). As we have already stated in this
case, the Board is without authority to determine the constitutionality
of Section 2(a).
Cancellation No. 21,069
14
raised in this case. The Indian trust responsibility is a
judicially created doctrine that has evolved from its first
appearance in Chief Justice Marshall's decision in Cherokee
Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). There, in an
action to enjoin enforcement of state laws on lands guaranteed
to the Cherokee Nation by treaties, Chief Justice Marshall
observed that Indian tribes, rather than being foreign states,
"may, more correctly, perhaps, be denominated domestic dependent
nations . . . in a state of pupilage," and concluded that
"[t]heir relation to the United States resembles that of a ward
to his guardian." Id. at 17.
The trust doctrine is by no means clear or consistent in
basis or application.19 Courts have defined the scope of the
federal government's fiduciary duties by looking to treaties,
statutes, the federal common law of trusts and a combination of
these sources for guidance.20 Based on a treaty or statute, they
have applied the doctrine in connection with the application of
federal criminal laws to tribal members on reservations,21 to
allowing Indian hiring preferences in the Bureau of Indian

19 See, D. McNeill, Trusts: Toward an Effective Indian Remedy for Breach
of Trust, 8 Am. Ind. L. Rev. 429, 430 (1980).
20 See, N. Newton, Enforcing the Federal-Indian Trust Relationship After
Mitchell, 31 Cath. U.L. Rev. 635, 638 (1982).
21 United States v. Kagama, 118 U.S. 375 (1886) (upholding
constitutionality of the Major Crimes Act as an exercise of
congressional guardianship power).
Cancellation No. 21,069
15
Affairs22 and to the dissolution of Indian tribes' governing
structures.23 When looking to the common law of trusts, courts
typically identify a trustee (the United States), a beneficiary
(the Indian tribes or the Indians) and a trust corpus. In most
cases, the trust corpus comprises Indian funds,24 Indian lands25
or their appurtenances such as timber,26 hunting,27 and fishing
rights.28
The Supreme Court decisions of Mitchell v. United States,
445 U.S. 535 (1980), and Mitchell v. United States, 463 U.S. 206
(1983), pertaining to the same facts but different statutes,
establish a fiduciary obligation in instances where a treaty,
executive order or agreement contains language concerning a
trust or a trust responsibility. In determining whether a trust
obligation exists, these cases require consideration of (a) the

22 Morton v. Mancari, 417 U.S. 535 (1974) (denying an equal protection
challenge against Indian hiring preferences).
23 Board of Commissioners v. Seber, 318 U.S. 705 (1943).
24 Seminole Nation v. United States, 316 U.S. 286 (1942) (Seminole
trust fund for per capita payments).
25 United States v. Creek Nation, 295 U.S. 103 (1935) (Creek land sold
to non-Indians following an incorrect federal survey of reservation
boundaries).
26 See, Mitchell v. United States, 445 U.S. 535 (S.Ct. 1980)
(timberlands of Quinault Indian Reservation).
27 Menominee Tribe v. United States, 391 U.S. 404 (1968) (reservation
lands implicitly secured rights to hunt).
28 Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918)
(fishing rights of Metlakahtla Indians on Annette Islands in
Southeastern Alaska).
Cancellation No. 21,069
16
underlying statutes, agreements, treaties or executive orders,
(b) actual supervision over the property or rights in question
and (c) the elements of a common law trust. Thus, in
determining whether a trust obligation exists, at a minimum, a
tribunal would have to search for support in the underlying
statute, treaty, agreement or executive order for a trust
obligation.
However, officials of the executive branch of the federal
government have undertaken actions that affect Indians and
Indian tribes based on a statute when the authorizing or
underlying statute is silent as to a trust or fiduciary
obligation. Most reported decisions addressing such actions
involve officials of the Bureau of Indian Affairs or the Bureau
of Land Management, both of which have jurisdiction over Indian
lands, forests, etc. which form part of a traditional trust
corpus. Where the doctrine has been applied, it is based solely
on a judicially imposed trust responsibility.29 Other cases have

29 See, e.g. Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919) (the
Court enjoined the Secretary of the Interior from disposing of tribal
lands under the general public land laws); Cramer v. United States, 261
U.S. 219 (1923) (the Court voided a federal land patent that 19 years
earlier had conveyed lands occupied by Indians to a railway, even
though the Indians' occupancy of the lands was not protected by any
treaty, executive order, or statute; the Court found the trust
responsibility limited the general statutory authority of federal
officials to issue land patents); United States v. Creek Nation, 295
U.S. 103 (1935) (money damage award affirmed to the Creeks for the
taking of lands which had been excluded from their reservation and
later sold to non-Indians following an incorrect federal survey of
reservation boundaries); Navajo Tribe of Indians v. United States, 624
F.2d 981 (Ct. Cl. 1980) (the government's argument that the fiduciary
Cancellation No. 21,069
17
found no trust relationship or have narrowly applied the trust
relationship.30
It is well established as a corollary to the trust doctrine
that the meaning of certain treaties, agreements, statutes and
administrative regulations must be construed favorably to
Indians. See, Jones v. Meehan, 175 U.S. 1, 10-11 (1899);
Choate v. Trapp, 224 U.S. 665 (1912);31 Alaska Pacific Fisheries
v. United States, 248 U.S. 78 (1918); and United States v. Santa
Fe Pacific Railroads, 314 U.S. 339 (1941), reh'g denied, 314
U.S. 716 (1942). More recently, the Supreme Court recognized in
Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649 (1976),

obligation only arises on an express or statutory term of trust is
irrelevant to claims involving accounting for mismanagement and
disposition of Navajo funds and property when government has taken on
or controls or supervises such funds and property); and Manchester Band
of Pomo Indian, Inc. v. United States, 363 F. Supp. 1238, 1245-46 (N.D.
Cal. 1973) (the duty to make trust property income productive arises
from the trust relationship between an Indian tribe and the United
States; it exists even in the absence of a specific statute).
Recognizing a fiduciary duty in Pyramid Lake Paiute Tribe v. Navy, 898
F.2d 1410 (9th Cir. 1990) (finding Navy's outlease program did not
violate the affirmative obligation to conserve endangered species under
the Endangered Species Act, court recognized that Secretary of Interior
has a fiduciary duty to preserve and protect the Pyramid Lake
fisheries).
30 See, e.g., Gila River Pima-Maricopa Indian Community v. United States,
427 F.2d 1194 (Ct. Cl. 1970), cert. denied, 400 U.S. 819 (1970)(no duty
to provide adequate educational facilities, instructors and instruction
in particular subjects created by affirmative acts of providing Indian
education, health services and administration); and Virgil v. Adrus,
667 F.2d 931 (10th Cir. 1982) (recognizing broad government fiduciary
responsibility to Indian tribes, court nevertheless found trust
relationship did not require provision of free lunches to all Indian
children because no express provision in any statute or treaty
requiring government to provide free lunches).
31 Extending this principle to Indian agreements, which took the place
of Indian treaties. See, C. Decker, The Construction of Indian
Treaties, Agreements, and Statutes, 5 Am. Ind. L. Rev. 299, 301 (1977).
Cancellation No. 21,069
18
that "statutes passed for the benefit of the Indians are to be
liberally construed, and all doubts are to be resolved in their
favor." This suggests that the liberal construction doctrine
does not apply to every statute, but only those which are
primarily directed to Indians, Indian assets or Indian affairs.32
Petitioners, members of federally recognized Indian
tribes, have asserted, inter alia, that under the Indian
trust doctrine, the Board owes them "a higher degree of
care and deference in construing the provisions of Section
2(a) than it would otherwise owe persons not belonging to
federally recognized Indian tribes." In support of this
contention, petitioners argue that the trust relationship
between the federal government and Native Americans is
broadly defined, citing Pyramid Lake Paiute Tribe v. Navy,
898 F.2d 1410 (9th Cir. 1990), wherein the court states

32 While treaties and agreements are bilateral dealings, wherein the
tribes are involved with representatives of the United States, this is
not the case with acts of Congress. In Rosebud Sioux Tribe v. Kneip,
430 U.S. 584 (1977), the Court noted the "general rule" that "doubtful
expressions are to be resolved in favor of the weak and defenseless
people who are wards of the nation, dependent upon its protection and
good faith," Id. at 586, but went on to point out:
But the ‘general rule' does not command a determination
that reservation status survives in the face of
congressionally manifested intent to the contrary . . . .
In all cases 'the face of the Act,' the 'surrounding
circumstances,' and the 'legislative history,' are to be
examined with an eye towards determining what congressional
intent was . . . .
Id. at 587. Accordingly, application of the liberal construction rule
to statutes should be based on congressional intent.
Cancellation No. 21,069
19
that "while most cases holding the government to this
[fiduciary] duty have involved Indian property rights, the
government's trustee obligations apparently are not limited
to property." Id. at 1420-21.
Respondent argues, on the other hand, that a fiduciary duty
arises only when there is an agreement between the federal
government and an Indian tribe in an area where the Indians have
a specific economic interest, citing Mitchell v. United States,
463 U.S. 206 (1983) for the proposition that, when there is no
statute, regulation, writing, agreement or implied obligation
governing the relationship between the Patent and Trademark
Office (PTO) and Native Americans that would impose any sort of
fiduciary duty on the Board, the trust doctrine does not apply.33
We find that the Indian trust doctrine is inapplicable to
the case before us and we decline to apply it herein. We have
found no decisional law addressing the Indian trust doctrine in
the context of a patent, trademark or copyright case. Thus, we
have considered this as an issue of first impression in relation
to the Trademark Act. The majority of cases relied upon by
petitioners for application of the trust doctrine herein involve
statutes or treaties specifically directed towards Native
Americans, which is not the case with the Trademark Act. Nor do

33 While respondent's trial brief is silent on this issue, we refer to
respondent’s arguments in opposition to the motion for leave to file an
amicus brief in this case.
Cancellation No. 21,069
20
we find any language in the Trademark Act of 1946, as amended,
or its legislative history, that specifically obligates the
federal government to undertake any fiduciary responsibilities
on behalf of Native Americans.
Further, we find no basis for petitioners’ contention that
the trust relationship applies even in the context of a statute,
such as the Trademark Act, that has broad application to both
Native Americans and non-Native Americans. Petitioners rely on
the Pyramid Lake case in this regard, which is distinguishable
from the case herein since the claims in that case involved a
body of water, Pyramid Lake, which was specifically reserved for
the Tribe based on an Executive Order signed by President Grant
in 1874. Thus, Pyramid Lake involves an item of trust property
that was specifically identified in the creation of the trust,
which is not the case before us.34 Here, Indian land, water,

34 We note the case of Hornell Brewing Co., Inc. v. Brady, 819 F. Supp. 1227
(E.D.N.Y. 1993), wherein the court found that the Indian trust doctrine did
not apply in connection with a First Amendment challenge to Pub. L. 102-393,
§ 633, prohibiting labeling of distilled spirits, wine and malt beverage
products bearing the name "Crazy Horse." In Hornell, the plaintiff placed
the label "Crazy Horse Malt Liquor" on a series of alcoholic beverages
pursuant to a Certificate of Label Approval from the Bureau of Alcohol,
Tobacco and Firearms. “Crazy Horse” is the name of an Indian chief who was
known for urging his people not to drink alcohol. After public outcry,
Congress enacted Pub. L. 102-393, § 633. While Hornell ultimately found the
statute unconstitutional under the First Amendment, the court did not accept
the government's argument that the statute was constitutional in view of the
trust relationship with American Indians. Specifically, the court noted that
while cases have applied the trust relationship in connection with various
classifications, the challenged classifications "in some way treated Native
Americans differently from the rest of the population. . . . [and thus] the
cases are not analogous to Public Law 102-393, § 633." Id. at 1236.
Cancellation No. 21,069
21
fish, timber or minerals, i.e. typical elements of an Indian
trust corpus, are not in issue. No specific item of Native
American intellectual property is in issue. In fact, the
subject registrations are not owned by petitioners or even by
Native Americans - the registrations are owned by non-Native
Americans. Thus, under a common law trust analysis, the trust
doctrine cannot apply since there is no identifiable trust
corpus.
As for petitioners’ argument that evidence submitted by
Native Americans -- in any context -- is to receive greater
weight than other evidence, we find no authority for that
proposition in the decisional law applying the trust doctrine,
even in actions involving typical Indian trust property such as
tribal funds or tribal lands.35 Thus, we find no basis for
extending the Indian trust doctrine to the Trademark Act in the
case before us.36

35 Petitioners contend that the Indian trust doctrine should be applied
in this case under either of two conditions: (a) if "the Board were to
consider the evidence more evenly balanced" or (b) "to the extent that
any doubt remains as to the cancelability" of the subject marks.
Petitioners provide no legal basis for this proposition. Moreover, in
this case, we do not “consider the evidence more evenly balanced” and
our decision does not involve any doubt.
36 We do not decide the question of whether the Indian trust doctrine
applies, generally, to the Trademark Act. Our decision relates only to
the case herein.
Cancellation No. 21,069
22
Protective Order
Petitioners filed two exhibits under notice of
reliance that are labeled “Confidential, Filed Under Seal
Subject To Protective Order” (Exhibit No. 7, “Respondent’s
Licensing Agreements”; and Exhibit No. 25.001, “3/27/72
Pro-Football, Inc. Minutes of Regular Meeting”).
Additionally, the testimony deposition of John Kent Cooke
contains several noted pages that have been separately
bound and designated as confidential.37 However, the record
does not contain a protective order pertaining to these
exhibits and testimony.38
In this regard, we note the relevant provisions of
Trademark Rule 2.125(e), 37 CFR §2.125(e):
Upon motion by any party, for good cause, the
Trademark Trial and Appeal Board may order that
any part of a deposition transcript or any
exhibits that directly disclose any trade secret
or other confidential research, development, or
commercial information may be filed under seal
and kept confidential under the provisions of
§2.27(e).

37 Additionally, these pages refer to several exhibits submitted in
connection with this deposition and indicate that the referenced
exhibits are also confidential.
38 The Board, in its decisions of December 15, 1995, and October 24,
1996, on various motions of the parties, respectively, granted
petitioners’ motion for a protective order only to “the extent that
petitioners need not respond to those discovery requests denied in
respondent’s motion to compel” and granted respondent’s motion for a
protective order only to the extent that certain depositions were
considered complete and conditions were specified for the taking of
certain other depositions. Neither order pertains to the submission of
confidential documents by either party and the record does not contain
such a protective order.
Cancellation No. 21,069
23
Neither petitioners nor respondent requested a
protective order with respect to these exhibits, nor did
the parties file a stipulated protective order. Within
thirty days from the date of this decision, petitioners
and/or respondent are directed to prepare a protective
order, preferably upon terms mutually agreeable to them,
for the Board’s consideration upon motion, including an
explanation of why the exhibits and testimony proposed to
be considered confidential are deemed to be confidential in
nature. We will keep petitioners’ exhibits and Mr. Cooke’s
testimony and exhibits which are designated “confidential”
under seal until we decide a motion for a protective order
if one is submitted or, if no motion is submitted within
the specified period, we will place petitioners’ Exhibits
Nos. 7 and 25.001 and Mr. Cooke’s testimony and exhibits in
the cancellation file.
Respondent’s Motion To Strike Notice Of Reliance And
Testimonial Depositions
On March 27, 1997, respondent filed a “Motion for
Discovery Sanctions” based upon petitioners’ alleged
failure to produce during discovery several specified sets
of documents and materials which were introduced as
evidence during petitioners’ testimony period. Respondent
requested that the Board (1) preclude petitioners from
Cancellation No. 21,069
24
introducing the documents into evidence during the
testimony period; (2) modify petitioners’ notice of
reliance to delete the documents; and (3) strike testimony
related to the documents by petitioners’ witnesses. The
Board, in its order of July 28, 1997, determined that the
subject motion would be treated as a motion to strike a
notice of reliance and testimonial depositions and that it
would be determined at the time of final decision. Thus,
we consider this motion now.
In particular, respondent seeks exclusion of (1) a
1993 resolution of the National Congress of American
Indians (1993 NCAI resolution)39 and documents and testimony
of Joann Chase, Susan Harjo and Raymond Apodaca related
thereto; (2) a resolution of the Portland, Oregon, Chapter
of the American Jewish Committee (Portland resolution) and
documents and testimony of Judith Kahn related thereto; (3)
a resolution of Unity ’94 (Unity resolution), an
organization described as a coalition of four minority
journalist associations, and documents and testimony of
Walterene Swanston related thereto; and (4) a videotape and

39 Respondent identifies this resolution by its title “Resolution in
Support of the Petition for Cancellation of the Registered Service
Marks of the Washington Redskins AKA Pro-Football Inc.” This
resolution, No. EX DC-93-11, was passed by the Executive Council of the
National Congress of American Indians (NCAI) and is distinguished from
another 1993 resolution, No. NV-93-143, entitled “Resolution to Justice
Department Investigation of Human Rights Violations,” passed by the
NCAI General Assembly, which is also of record in this case.
Cancellation No. 21,069
25
related documents created by Susan Courtney (Courtney
videotape) and testimony of Susan Courtney and Geoffrey
Nunberg related thereto.
Respondent argues, under Trademark Rule 2.120(g)(1)
and Fed. R. Civ. P. 37(b)(2)(B), that the aforementioned
documents were not produced during discovery. Respondent
maintains that, by not producing these documents prior to
the close of discovery and not requesting an extension of
the discovery period, petitioners have violated the Board’s
trial order setting the closing date for discovery.40
Respondent asserts that, as a result, it was prejudiced and
could not properly prepare for trial. Respondent has also
raised certain other specific objections with regard to
each of the items it seeks to exclude.
Respondent has made several very technical objections
that we find to be without merit. We find that petitioners
adequately disclosed information pertaining to the
aforementioned documents during discovery and that
petitioners have not violated any orders of the Board in
relation thereto. Additionally, we find respondent’s
further objections specified herein to be without merit.

40 The Board, in its order of July 28, 1997, rejected respondent’s
arguments concerning petitioners’ alleged non-compliance with an order
and report and recommendation of the United States District Court for
the District of Columbia in view of the Board’s lack of jurisdiction to
enforce such an order.
Cancellation No. 21,069
26
In particular, regarding the 1993 NCAI resolution, the
record reveals that both petitioners and NCAI (a non-party)
disclosed copies of the 1993 NCAI resolution during
discovery; that both petitioners and NCAI disclosed during
discovery what further minimal information each had
regarding the resolution41; and that the differences between
the several copies of the resolution disclosed are
insignificant.
We conclude that the 1993 NCAI resolution submitted by
petitioner as an exhibit to Mr. Apodaca’s testimony has
been properly authenticated by Mr. Apodaca as a copy of the
resolution that was passed by the Executive Council of the
NCAI, and that the authenticity of this document has been
corroborated by the testimony of Ms. Joann Chase, Executive

41 The Board has never ordered petitioners to provide additional
discovery referring or relating to the NCAI 1993 resolution.
Respondent does not identify any specific document request for which
petitioners have withheld documents. As Document Request No. 3 appears
to be the only document request that covers the 1993 resolution and
related communications, the discussion herein is limited to the same.
The Board’s December 15, 1995 order at p. 3 specifically states with
respect to Document Request No. 3, that “petitioners have already
provided all responsive documents and things within their possession,
custody and control” and denies respondent’s motion to compel regarding
this request. Thus, at least with respect to discovery requests
concerning the NCAI resolution, petitioners have responded in full and
the requests are not the subject of any Board or court order.
Further, the Board does not have the authority to hear any
complaints about NCAI’s failure to produce documents as NCAI is not a
party herein. Nor is there is any evidence in the record for treating
petitioners and NCAI as one; e.g., that they are in collusion, that one
controls the actions of the other or that petitioners have initiated
the cancellation proceeding in their capacity as officers or
representatives of NCAI.
Cancellation No. 21,069
27
Director of NCAI, based on the regularly kept records of
NCAI.
Finally, with regard to the 1993 NCAI resolution, we
conclude that respondent’s assertion pertaining to the
circumstances under which the resolution was adopted (e.g.,
whether persons voting on the resolution understood the
specific nature of the referenced registrations and
cancellation proceeding) goes to the probative value of the
document rather than to its authenticity and, thus, its
admissibility. Similarly, we are not persuaded that the
resolution is irrelevant by respondent’s argument that this
resolution does not pertain to opinions held during the
relevant time periods. The 1993 NCAI resolution is not
irrelevant. Evidence 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.
Thus, respondent’s motion to strike the 1993 NCAI
resolution and related testimony and documentation is
denied.
Regarding the Portland and Unity resolutions and the
Courtney videotape, we note, at the outset, that respondent
does not allege that petitioners have failed to provide the
documents pursuant to one of respondent’s discovery
Cancellation No. 21,069
28
requests. Instead, by alleging that petitioners violated
the Board’s scheduling order,42 respondent appears to rely
on the automatic disclosure requirements of Fed. R. Civ. P.
26(a)(3) requiring, within a specified time frame, the
disclosure of documents to the opposing party which the
disclosing party anticipates will be used at trial.
Although Trademark Rule 2.120(a) provides that the
provisions of the Federal Rules of Civil Procedure relating
to discovery shall apply in Board proceedings, the Office
has determined that several provisions of the Federal Rules
do not apply to the Board, including Fed. R. Civ. P.
26(a)(3). See, Effect of December 1, 1993 Amendments to
the Federal Rules of Civil Procedure on Trademark Trial and
Appeal Board Inter Partes Proceedings, 14 TMOG 1159
(February 1, 1994). See also, Trademark Trial and Appeal
Board Manual of Procedure, Section 419, para. (7), and
cases cited therein. Petitioners were not under any
obligation to prepare a list of trial witnesses and
documents. Therefore, the fact that the resolutions were

42 Respondent references the Board’s order of October 24, 1996, which
decided a motion to compel and several discovery disputes, and included
a scheduling order resetting the close of discovery and trial dates.
We find that petitioners have not violated the scheduling order.
Further, we do not find any reference in the remaining portion of the
order that could be understood to require production of the resolutions
or videotape discussed herein.
Cancellation No. 21,069
29
not specifically named in the list of documents proffered
to respondent is of no consequence.
Further, the procedure set forth in Fed. R. Civ. P. 34
for the production of documents pertains only to discovery
from parties. It does not pertain to the discovery of
documents not in the possession of a party. Except under
certain circumstances not present in this case, a party
does not have an obligation to locate documents that are
not in its possession, custody or control and produce them
during discovery.43 There is no indication in this record
that petitioners had copies of either the Portland and
Unity resolutions or the Courtney videotape in their
possession, custody or control during the discovery period;
thus, petitioners were not under any obligation to produce
a copy of the Unity ’94 or Portland Chapter resolutions
during discovery. They also were not under any obligation,
under Fed. R. Civ. P. 26, to identify the documents in
advance of trial.44

43 In fact, Fed. R. Civ. P. 34(c) directs a party seeking discovery of
third-party documents to the subpoena procedure authorized by Fed. R.
Civ. P. 45. A Rule 45 subpoena would not have involved petitioners.
See J. Moore, A. Vestal and P. Kurland, Moore’s Manual Federal Practice
and Procedure, § 15.11 (1998).
44 Further, we find respondent’s contentions disingenuous. Although a
party has an obligation to amend its discovery responses as information
becomes available to it, amendment was not the issue herein. Well
prior to the close of discovery, petitioners notified respondent of
their intention to rely on “resolutions from various organizations
protesting use of the term ‘redskins’ and Indian names in sports”; and
Cancellation No. 21,069
30
With respect to the Portland resolution, we conclude
that Ms. Kahn’s testimony is adequate to authenticate this
resolution. Additionally, we are not persuaded by
respondent’s arguments that the resolution is irrelevant.
As we have stated with respect to the 1993 NCAI resolution,
evidence 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.
We have given no further consideration to respondent’s
arguments in the context of the admissibility of this
evidence.
With respect to the Courtney videotape, we are not
persuaded that alleged flaws in the methodology employed by
Ms. Courtney in compiling the film montage contained on the
Courtney videotape render the videotape inadmissible. Ms.
Courtney is presented by petitioners as an expert in film,
and she testified that the methods she employed in
compiling this film montage both met the parameters of the
job as described to her and are consistent with standards

of their intention to rely on a montage of films, naming at least some
of the films it would include, and that petitioners’ expert, Dr.
Nunberg, would rely, in part, on cinematic evidence in forming his
opinions. However, there is no indication herein that respondent sought
more specific information or that petitioners refused to comply. We
note, further, that the Courtney videotape was not completed until
shortly before Ms. Courtney’s deposition. Petitioners gave the
videotape to respondent within a reasonable time after its completion,
albeit shortly before Ms. Courtney’s deposition.
Cancellation No. 21,069
31
in her field for compiling such a montage. Respondent has
provided no evidence suggesting otherwise. Further,
neither Dr. Nunberg nor Ms. Courtney, in their testimony,
present this montage as other than a sample of films in the
Western genre wherein the word “redskin” appears. This is
not a survey and, as such, it is not subject to the
standards established for such undertakings. We find the
film montage does not run afoul of the principles
established in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). Any deficiencies in the
methodology used in preparing this videotape pertain to its
probative value rather than to its admissibility.
Thus, respondent’s motion to strike the Unity ’94
resolution, the Portland resolution, the Courtney
videotape, and related testimony and documents is denied.
In short, respondent’s motion to strike is denied in its
entirety.
Respondent’s Motion, In Its Brief, To Strike Testimony And
Exhibits
In addition to those objections addressed above in
relation to its earlier motion to strike,45 respondent, in
its brief, renews numerous objections to the entire
testimony of certain witnesses, to specified statements of
Cancellation No. 21,069
32
certain witnesses, and to specified exhibits introduced in
connection with the testimony of certain witnesses.
Additionally, respondent objects to specified exhibits
submitted by petitioners’ notices of reliance. Respondent
moves to strike the aforementioned testimony and exhibits.
These objections are considered below.
Before turning to the specific objections, we address
two general points pertaining to several of respondent’s
objections. First, respondent has made numerous objections
aimed at excluding various witnesses’ views on the nature
and use of the word “redskin(s).” We emphasize that
witnesses’ opinions on the specific questions of whether
“redskin(s)” is scandalous, disparaging, or falls within
the other pleaded proscriptions of Section 2(a) are not
determinative. The Board must reach its own conclusions on
the legal issues before it, based on the record in each
case. The Board will not simply adopt the opinions of
particular witnesses on the ultimate questions of
scandalousness or disparagement, even if such witnesses are
experts. See, Saab-Scania Aktiebolag v. Sparkomatic Corp.,
26 USPQ2d 1709 (TTAB 1993) and cases cited therein. Thus,
rather than excluding this evidence, we have considered

45 Objections raised in respondent’s brief that are addressed herein in
connection with respondent’s earlier motion to strike are not
considered again.
Cancellation No. 21,069
33
such statements as reflecting the witnesses’ views and we
have not accorded these statements determinative weight as
to the ultimate issues before us.
Second, respondent made a number of objections on the
basis of relevance, contending, variously, that the
challenged testimony or exhibit is (1) unrelated to the use
of “redskin(s)” by the Washington team; (2) unrelated to
the use of the word “redskin(s)”; (3) only one individual’s
view, which is not representative of the majority of Native
Americans; (4) outside the relevant time period; and/or (5)
unrelated to any issue in this proceeding.
Except as otherwise indicated herein, we find
respondent’s objections on the stated grounds of relevance
to be without merit. While respondent contends, in part,
that “redskin(s),” as used and registered in connection
with its football team, connotes only its football team,
petitioners contend otherwise. Thus, evidence of uses of
the word “redskin(s)” that are unrelated to the use of that
word in connection with respondent’s football team are
relevant to the development of petitioners’ case.
Similarly, the views of individuals are cumulative and are
not inadmissible simply because they cannot possibly,
alone, be representative of the views of the majority of
Native Americans. While several witnesses may claim that
Cancellation No. 21,069
34
their individual views are also representative of other
Native Americans’ views, such statements have been taken
for what they are, namely, the views of particular
individuals.
Respondent’s objections on the grounds of relevance
that certain evidence is unrelated to the use of
“redskin(s)” because it is outside the relevant time
period, and/or is unrelated to any issue in this
proceeding, are not well taken. As stated herein, evidence
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. Thus, it is
relevant for petitioners to submit testimony and exhibits
from various time periods that address the attitudes of
both Native Americans and the majority culture in the
United States towards Native Americans,46 including evidence
pertaining to a wide range of derogatory and/or
stereotypical imagery and words.

46 This reasoning in favor of admissibility is equally applicable to
evidence regarding the word “redskin(s)” long prior to the issuance of
the subject registrations, as well as evidence relating to the period
after the issuance of the subject registrations. We have considered
the probative value of such evidence in the context of the entire
record before us.
Cancellation No. 21,069
35
1. Objections to Testimony and Exhibits
in Their Entirety.
Respondent seeks to exclude entirely certain testimony
and exhibits. First, as is the case in many instances when
a survey is introduced as evidence in litigation,
respondent has raised a multitude of objections and
perceived flaws regarding a survey introduced by
petitioners, and contends that these flaws render the
survey inadmissible. We find that petitioners’ survey
evidence is admissible and any deficiencies in the survey
go to its probative value. The survey was designed and
directed by an established expert in the field of
trademark-related surveys, and was introduced through his
testimony. The survey’s methodology is adequately
established as acceptable in the field, so that it is
admissible as evidence herein. While we agree that several
of respondent’s criticisms have some merit, we note that
even a flawed survey may be received in evidence and given
some weight if the flaws are not so severe as to deprive
the survey of any relevance. See, Lon Tai Shing Co. Ltd.
v. Koch & Lowy, 19 USPQ2d 1081 (SDNY 1990); and Helene
Curtis Industries Inc. v. Suave Shoe Corp., 13 USPQ2d 1618
(TTAB 1989). We discuss the merits and flaws of the study
Cancellation No. 21,069
36
and its probative value below in the context of our
analysis of the substantive issue before us.
Respondent contends that the depositions of
petitioners’ expert witnesses, Geoffrey Nunberg, Susan
Courtney, Teresa LaFromboise, Arlene Hirschfelder and
Frederick Hoxie, are inadmissible because each witness’
disclosure statement under Fed. R. Civ. P. 26 was written
by petitioners’ attorneys, rather than by the witness, and
was not signed by the witness. This objection has no
merit. As discussed herein, the pertinent portions of Fed.
R. Civ. P. 26 are inapplicable to Board proceedings and,
thus, no disclosure statement is required.
Further, respondent contends that Dr. Nunberg’s
statements concerning the disparaging nature of the word
“redskin” lack a scientific basis; and that Dr.
LaFromboise’s testimony lacks the requisite standards for
expert testimony and is not grounded in scientific method
as it is anecdotal in nature. We are not persuaded that
the aforementioned statements of Dr. Nunberg or the
testimony of Dr. LaFromboise are inadmissible due to lack
of scientific “basis” or “method.” The nature of the
witnesses’ respective expertise and the basis for their
opinions are adequately established and, further, neither
witness claimed to base his or her testimony on a
Cancellation No. 21,069
37
scientific study or survey. Any purported inadequacy that
may exist in the testimony, such as the anecdotal nature of
portions of Dr. LaFromboise’s testimony, goes to the weight
to be given to that testimony.
Respondent contends that Ms. Hirschfelder, as a
teacher, and Dr. Hoxie, as a history professor, lack the
qualifications to testify as experts on the linguistics
topics that they address, and that there is no scientific
basis for the opinions they express. We find Ms.
Hirschfelder’s expertise as an educator specializing in
Native American studies and curriculum, including the
effects of stereotyping on children, to be adequately
established and sufficient to accept her testimony as an
expert in this area. Similarly, we find Dr. Hoxie’s
expertise as a historian specializing in the history of
Native Americans in the United States to be adequately
established and sufficient to accept his testimony as an
expert in this area. We find respondent’s objections as to
lack of scientific basis for the opinions of these two
witnesses to be without merit.
Respondent seeks to exclude a 1992 resolution of the
Central Conference of American Rabbis (Petitioners’ Exhibit
4.001) as irrelevant because it was adopted “outside the
relevant time period” and was “passed by a group that does
Cancellation No. 21,069
38
not have a single American Indian member.” Respondent also
seeks to exclude a 1972 letter by Harold Gross on behalf of
the Indian Legal Information Development Services
(Petitioners’ Exhibit 32.007) as irrelevant because “at the
time [the organization] had only ‘at a maximum, seven’
American Indian members”; the organization is no longer in
existence; and “the sentiments expressed in the letter
cannot be said to represent the views of any tribal chief
or tribal leader, and plainly not the United States or
American Indian population.” For the reasons previously
stated regarding respondent’s objections on the grounds of
relevance, we do not exclude, on the asserted grounds,
either the 1992 resolution of the Central Conference of
American Rabbis or the 1972 letter by Harold Gross.
2. Objections to Specified Testimony and Exhibits.
Respondent seeks to exclude specified testimony
responsive to alleged objectionable questions by
petitioners’ attorney, and specified exhibits introduced in
connection with testimony. These 75 pages of objections
are identified in respondent’s Appendix A to its brief.
Respondent objects to various questions by petitioners’
attorney on the ground that such questions are leading,
under Fed. R. Evid. 611(c), and/or on the discretionary
grounds that such questions are vague, lacking in
Cancellation No. 21,069
39
foundation, argumentative, asked and answered, compound
questions, questions calling for speculation or legal
conclusions, and/or incomplete quotes or hypotheticals.
Having reviewed the allegedly objectionable questions,
we find no merit to respondent’s objections. Further, in
view of the manner and frequency with which these types of
objections were interposed by respondent throughout the
questioning of witnesses by petitioners’ attorneys, we find
little purpose to these objections as made by respondent’s
attorney other than, possibly, obfuscation.
Respondent also objects to specified questions as
requiring expert opinions of non-experts, and objects to
specified testimony as hearsay or irrelevant. Respondent’s
objections to testimony exhibits include, variously, that
such exhibits were never produced,47 and/or are untimely,
incomplete or irrelevant.
We find respondent’s specified objections to testimony
on the basis of hearsay to be well taken as the specified
questions clearly call for testimony as to the statements
of third parties, asserted for the truth of the statements,
and such testimony given does not fall into any of the

47 As respondent does not identify any specific discovery requests, we
assume respondent is referring to the automatic disclosure requirements
of Fed. R. Civ. P. 26(a)(3) which, as discussed previously in relation
to respondent’s earlier motion to strike, is inapplicable to Board
proceedings.
Cancellation No. 21,069
40
exceptions to hearsay. Thus, we have not considered this
evidence.
However, we find respondent’s remaining objections
pertaining to testimony, and exhibits thereto, to be
without merit and we have not excluded evidence objected to
on the alleged ground that expert opinions are sought from
non-experts, or on the alleged grounds of lack of
production, timeliness, completeness or, as previously
discussed, relevance. Respondent does not specify its
reasons for these objections in each case, nor are the
reasons apparent. Regarding the allegation that
petitioners asked for expert opinions from non-experts, we
do not believe that the questions asked either seek
opinions for which one would have to be an expert or seek
opinions outside the expert’s area of expertise.
Additionally, as previously stated, all such opinions have
been given weight based on our consideration of the
background of the witness and in the context of the
witness’ testimony as a whole. As discussed in relation to
respondent’s earlier motion to strike, respondent’s claims
of lack of production are not well taken, as respondent has
not identified any pertinent discovery requests to which
petitioners’ allegedly objectionable exhibits should have
been responsive, and there is otherwise no general
Cancellation No. 21,069
41
obligation on petitioners in Board proceedings to disclose
during discovery evidence to be used at trial. Further, we
find the alleged incomplete evidence sufficiently complete
for the purposes for which it is offered.
3. Objections to Notice of Reliance Exhibits.
Respondent also seeks to exclude specified exhibits
submitted by petitioners’ notices of reliance. These 52
pages of objections are identified in respondent’s Appendix
B to its brief. The objections are on several grounds,
primarily relevance and hearsay.
We have considered each of respondent’s objections and
find them to be without merit. We note, in particular,
that our previous discussion of relevance applies equally
to the objections by respondent to the vast majority of
these exhibits on the same grounds of relevance and we do
not exclude any exhibits on this ground.
Regarding respondent’s objections on the ground of
hearsay, we reference our discussion, infra, concerning the
extent to which the exhibits proffered by both parties are
amenable to submission by notice of reliance. See,
Trademark Trial and Appeal Board Manual of Procedure
(TBMP), Sections 707 and 708, and 37 CFR 2.122(e).
Newspaper articles cannot be submitted by notice of
reliance to establish the truth of the statements contained
Cancellation No. 21,069
42
therein. Although respondent’s objections to the newspaper
articles on the ground of hearsay are therefore sustained
to the extent that we have not considered the articles for
the truth of their statements, they are still admissible
for what they show on their face. Thus, we have not
excluded any of petitioners’ newspaper articles.
Respondent objects to petitioners’ Exhibits 93-105,
consisting of videotapes, on the ground of timeliness.
However, contrary to respondent’s contentions, petitioners
timely submitted Exhibits 93-105 with petitioners’ notice
of reliance on February 18, 1997, and this evidence has
been considered.48 The submission objected to contains
excerpts from the videotapes previously submitted as
Exhibits 93-105 and is characterized by petitioners as a
“demonstrative exhibit.” Since this excerpted version is
untimely, as well as allegedly duplicative, it has not been
considered.
Further, respondent’s objection, on the ground of
relevance, that the videotapes comprising Exhibits 93-105
consist of excerpts that are taken out of context, is not a
basis for excluding the videotape evidence. Excerpts are,

48 Videotapes are not usually admissible by notice of reliance.
However, as indicated, infra, this evidence has been considered
properly submitted by notice of reliance in this case.
Cancellation No. 21,069
43
by definition, taken from a larger whole and, thus, are out
of context. This evidence has, of course, been viewed in
terms of the entire record, wherein respondent has had its
opportunity to provide the appropriate “context” for these
excerpts.
Summary of the Arguments of the Parties
Petitioners
Petitioners state that the issues in this cancellation
proceeding are whether petitioners have standing to file
these petitions to cancel and whether, at the time
respondent’s registrations issued, the registered marks
consisted of or comprised scandalous matter, or matter
which may disparage Native Americans, or matter which may
bring Native Americans into contempt or disrepute.
Petitioners contend that the subject registrations are
void ab initio and that the word “redskin(s)” “is today and
always has been a deeply offensive, humiliating, and
degrading racial slur.” Petitioners contend that “a
substantial composite of the general public considers
‘redskin(s)’ to be offensive” and that “the inherent nature
of the word ‘redskin(s)’ and Respondent’s use of [its marks
involved herein] perpetuate the devastating and harmful
effects of negative ethnic stereotyping.” Petitioners
contend, further, that Native Americans “have understood
Cancellation No. 21,069
44
and still understand” the word ‘redskin(s)’ to be a
disparaging “racial epithet” that brings them into
contempt, ridicule and disrepute.
Petitioners contend that the Board must consider “the
historical setting in which the word ‘redskin(s)’ has been
used.” In this regard, petitioners allege that “the
history of the relationship between Euro-Americans and
Native Americans in the United States has generally been
one of conflict and domination by the Euro-Americans”; that
“[b]eneath this socioeconomic system lay an important
cultural belief, namely, that Indians were ‘savages’ who
must be separated from the Anglo-American colonies and that
Anglo-American expansion would come at the expense of
Native Americans”; that, in the 1930’s, government policies
towards Native Americans began to be more respectful of
Native American culture; that, however, these policies were
not reflected in the activities and attitudes of the
general public, who continued to view and portray Native
Americans as “simple ‘savages’ whose culture was treated
mainly as a source of amusement for white culture”; and
that it was during this time that respondent first adopted
the name “Redskins” for its football team.
Petitioners presented the testimony of its linguistics
expert, Dr. Geoffrey Nunberg, regarding the usage of the
Cancellation No. 21,069
45
word “redskin(s).” Petitioners contend that the primary
denotation of “redskin(s)” is Native American people; that,
only with the addition of the word “Washington,” has
“redskin(s)” acquired a secondary denotation in the sports
world, denoting the NFL football club; that the “offensive
and disparaging qualities” of “redskin(s)” arise from its
connotations; and that these negative connotations pertain
to the word “redskin(s)” in the context of the team name
“Washington Redskins.” Regarding whether the negative
connotations of “redskin(s)” are inherent or arise from the
context of its usage, petitioners contend that “redskin(s)”
is inherently offensive and disparaging.
Petitioners argue that the evidence supports their
conclusions that, since the first written uses of the word,
“redskin(s)” “has been and is used with connotations of
violence, savagery, and oppression”; and that the usage
“suggests a power relationship, with the whites in control,
and the Indians in a position of servitude or capture,” and
the usage “connects Indians with savagery.” Petitioners
allege the following:
The term “redskin(s)” rarely appears in formal
writing, such as judicial decisions, scholarly
dissertations, government documents, or papers of
diplomacy, where such terms as ‘uncivilized’ and
‘savages’ frequently appeared. The term has been
reserved for informal writings as a slur of the
most demeaning sort and as an epithet to
Cancellation No. 21,069
46
influence the sensibilities of the general
public. American newspapers … reveal vivid
examples of the offensive and disparaging use of
“redskin(s)” as a term associated with violence,
savagery, racial inferiority, and other negative
ethnic stereotypes.
Petitioners argue that the frequency with which the word
“redskin(s)” appears in the context of savagery, violence
and oppression is explained by the negative connotation of
that word which is not conveyed by such terms as “Indian,”
“Native American,” or “American Indian”; and that the
repeated appearance of “redskin(s)” in this context
reinforces its derogatory character. Petitioners’ evidence
in this regard includes newspaper articles, film excerpts,
dictionaries and encyclopedias. Petitioners’ linguistics
expert, Dr. Nunberg, testified, inter alia, that
“lexicographers consider[ed] the word ‘redskin’ from the
‘60s onward as a disparaging word which is variously
labeled contemptuous, offensive, disparaging”; and that
newspaper writers avoid using the word “redskin(s)”, not
because it is “too informal for use, even in the popular
press,” but because it is “a loaded pejorative term.”
Petitioners contend that sports team names are chosen
to reflect the team’s location or to sound “fierce … so as,
in a symbolic way, to strike fear into the hearts of
opponents.” Petitioners’ expert witness, Dr. Nunberg,
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47
states that “Redskins,” as part of respondent’s team’s
name, falls into the latter category and is intended to
“evoke the sense of an implacable and ferocious foe”; that
this association derives from the otherwise negative
connotations of savagery and violence attributable to the
word “redskin(s)”; and that the word “redskin(s)” as it
appears in the team name “Washington Redskins” has not
acquired “a meaning that somehow is divorced from or
independent of its use in referring to Native Americans.”
Respondent
Respondent begins by arguing that petitioners must
establish their case under Section 2(a) by clear and
convincing evidence; that petitioners’ evidence is biased
and flawed and falls far short of this standard of proof;
and that petitioners’ evidence does not focus on either the
appropriate time period or population and contains other
specified inadequacies.
Respondent contends that the word “redskin(s)” “has
throughout history, been a purely denotative term, used
interchangeably with ‘Indian’.” In this regard, respondent
argues that “redskin(s)” is “an entirely neutral and
ordinary term of reference” from the relevant time period
to the present; and that, as such, “redskin(s)” is
“[synonymous] with ethnic identifiers such as ‘American
Cancellation No. 21,069
48
Indian,’ ‘Indian,’ and ‘Native American’.” Respondent also
states that, through its long and extensive use of
“Redskins” in connection with professional football, the
word has developed a meaning, “separate and distinct from
the core, ethnic meaning” of the word “redskin(s),”
denoting the “Washington Redskins” football team; and that
such use by respondent “has absolutely no negative effect
on the word’s neutrality – and, indeed, serves to enhance
the word’s already positive associations – as football is
neither of questionable morality nor per se offensive to or
prohibited by American Indian religious or cultural
practices.”
Respondent states that while “the term ‘redskin,’ used
in singular, lower case form references an ethnic group,
[this] does not automatically render it disparaging when
employed as a proper noun in the context of sports.”
In response to petitioners’ contentions, respondent
argues that while “‘redskin’ may be employed in connection
with warfare, [this] is but a reflection of the troubled
history of American Indians, not of any negative
connotation inherent in the term itself.” Respondent
argues that “’redskin’ is not always employed in connection
with violence”; that, when “redskin” appears in a violent
context, the neutrality of the word “redskin” is apparent
Cancellation No. 21,069
49
from the fact that, as it appears in the evidence of
record, the word “Indian” or “Native American” can be
substituted therefor without any change in meaning; and,
further, that it is often the negative adjective added to
this neutral term that renders the entire phrase
pejorative.
Respondent contends, further, that its evidence
establishes that Native Americans support respondent’s use
of the name “Washington Redskins”; and that Native
Americans “regularly employ the term ‘redskin’ within their
communities.”
Respondent concludes that its marks “do not rise to
the level of crudeness and vulgarity that the Board has
required before deeming the marks scandalous,” nor do its
marks disparage or bring Native Americans into contempt or
disrepute. Respondent argues that disparagement requires
intent on the part of the speaker and that its “intent in
adopting the team name was entirely positive” as the team
name has, over its history, “reflected positive attributes
of the American Indian such as dedication, courage and
pride.” Similarly, respondent notes that third-party
registrations portraying Native Americans and the United
States nickel, previously in circulation for many years,
portraying a Native American are similar to respondent’s
Cancellation No. 21,069
50
“respectful depiction in the team’s logo”; and that
petitioners have not established that this logo is
scandalous, disparaging, or brings Native Americans into
contempt or disrepute.
The Evidence
Particularly in view of the size of the record in this
case, we find it useful to review the testimony and
evidence submitted by the parties. First, we discuss the
parties’ notices of reliance. Then, except for the
testimony and related exhibits of the parties’ linguistics
experts and marketing and survey experts, we summarize the
testimony and related exhibits of, first, petitioners’
witnesses and, second, respondent’s witnesses. Next, we
discuss the testimony and related exhibits of both parties’
linguistics experts and draw conclusions in relation
thereto. Finally, we discuss and draw conclusions
regarding petitioners’ survey, the testimony and other
exhibits of petitioners’ survey expert, and the testimony
and related exhibits of respondent’s marketing and survey
expert in rebuttal.
The Parties’ Notices of Reliance
A substantial amount of evidence was submitted by
petitioners’ and respondent’s notices of reliance. We are
dismayed by the parties’ apparent unfamiliarity with, or
Cancellation No. 21,069
51
disregard for, the Rules of Practice pertaining to the
submission of notices of reliance before this Board.
Except for responses to the opposing party’s
interrogatories,49 third-party registrations,50 and excerpts
from dictionaries and encyclopedias,51 newspapers52 and

49 Petitioners submitted several of respondent’s responses to
petitioners’ interrogatories.
50 Petitioners submitted copies of third-party registrations.
51 Petitioners submitted excerpts defining the word “redskin” from
dictionaries and encyclopedias, including volumes dated 1910, 1955, and
various years from 1966-1996. Respondent submitted excerpts from
dictionaries defining the word “redskin,” including volumes from
various years from 1965-1981; and an excerpt from the American Heritage
School Dictionary, 1977, containing separate entries for “redskin” and
“Redskin.”
52 While excerpts from newspapers are properly made of record by
notice of reliance, such excerpts do not establish the truth of
the statements contained therein. Rather, newspaper excerpts,
considered in the context of the record and the issues in this
case, are evidence only of the manner in which the term is used
therein and of the fact that the public has been exposed to the
articles and may be aware of the information contained therein.
Thus, we have considered these excerpts for these purposes only.
Additionally, excerpts that are unidentified as to either source
or date have not been considered, as the extent to which such
material is genuine and available to the public cannot be
ascertained.
From newspapers, petitioners submitted articles, pictures,
cartoons and advertisements pertaining to respondent’s football
team and its fans, including some material that is either undated
or unidentified as to source, and including material from,
variously, 1941-1994; articles featuring stories about the racial
integration of respondent’s team (including material from 1957-
1961, 1969, 1986); editorials opposing respondent’s team’s name
(including material from 1969, 1979-1988, 1992); stories about
protests by individuals and groups opposed to respondent’s team’s
name (including material from 1987-1992); and excerpts of
articles and headlines featuring the term “redskin(s)” as a
reference to Native Americans and about the 19th century armed
conflicts between the U.S. Government and Native Americans in the
Western parts of the United States, including some undated
material and including material from, variously, 1879-1891, 1913,
1922, 1932-1937, 1970-1974, and 1991-1992.
Respondent submitted excerpts of two newspaper articles and
headlines featuring the term “redskin(s)” as a reference to
Native Americans and about the 19th century armed conflicts
Cancellation No. 21,069
52
books,53 petitioners’ and respondent’s proffered exhibits
are not amenable to submission by notice of reliance. See,
Trademark Trial and Appeal Board Manual of Procedure
(TBMP), Sections 707 and 708, and 37 CFR 2.122(e). Certain
“printed publications” are amenable to submission by notice
of reliance because such publications are considered,
essentially, self-authenticating, although such
publications must be identified as to their source and date
of publication. In particular, the printed publications
which may be placed in evidence by notice of reliance are
books and periodicals available to the general public in
libraries or of general circulation among members of the
public or that segment of the public which is relevant to
an issue in a proceeding. These printed publications do
not include press releases by or on behalf of a party54;
press clippings, which are essentially compilations by or

between the U.S. Government and Native Americans in the Western
parts of the United States, from 1890; articles and photographs
from newspapers regarding respondent’s football team, from
various years from 1940-1994; and a 1992 newspaper article
reporting a poll regarding respondent’s team’s name.
53 Respondent submitted excerpts from Ulysses, by James Joyce; Redskin,
by Elizabeth Pickett; “Paleface and Redskin,” The New Republic, 1977;
“Paleface and Redskin,” essays by Philip Rahv, 1957; “Commentary:
Research, Redskins, and Reality,” by Vine Deloria, Jr., The American
Indian Quarterly, Fall 1991; and a book cover of Red Earth White Lies,
by Vine Deloria, Jr.
54 Respondent submitted an undated press release regarding
respondent’s team and petitioners submitted several press
releases.
Cancellation No. 21,069
53
on behalf of a party of article titles or abstracts of, or
quotes from, articles; studies or reports prepared for or
by a party or non-party55; affidavits or declarations; or,
as a general rule, catalog advertising or product
information.56 Similarly, photographs,57 videotapes,58
transcripts,59 letters,60 resolutions,61 contracts or minutes

55 Certainly, a report by a government agency would be amenable to
submission by notice of reliance as an official record. While
petitioners submitted a report of the Michigan Department of Civil
Rights, we have no information in the record that establishes whether
this report can be considered an official record.
56 Advertisements in newspapers or magazines available to the general
public in libraries or in general circulation can be made of record by
notice of reliance. Petitioners submitted advertisements for sports
team clothing and accessories, alleged to be from National Football
League (NFL) catalogs, one advertisement is dated 1985, and the
remaining ads are undated. We have no information in the record
regarding whether this evidence would so qualify for submission in this
case.
57 Petitioners submitted undated photographs alleged to be of the
“Redskins Marching Band” and “Redskinettes” cheerleaders at
respondent’s team’s football games. Respondent submitted photographs
alleged to be of various schools and a motel featuring Native American-
related names, themes and/or imagery.
58 Petitioners submitted videotapes of NFL films and game clips and
respondent submitted a videotape containing an excerpt from the 1996
movie Courage Under Fire.
59 Petitioners submitted a film transcript; a transcript of a 60 Minutes
program; and documents transcribing the lyrics and musical score to
respondent’s team’s fight song, Rosie the Redskin, both original and
modified lyrics.
60 Petitioners submitted, from respondent’s files, letters expressing
opposition to respondent’s team name, dated, variously, from 1986-1993,
and letters from respondent responding thereto; and 1993-1994 letters
to respondent from an organization identified in the letters as the
Redskin Review, and credentials letters. Respondent submitted letters
expressing support for respondent’s team name, dated, variously, from
1988-1992; and letters from Jack Kent Cooke regarding team issues, from
1983, 1987, 1992.
61 Petitioners submitted resolutions of three organizations, from 1992
and 1994; and respondent submitted 1992 resolutions from alleged tribal
Cancellation No. 21,069
54
of meetings,62 memoranda by or to the parties,63 and, as a
general rule, program guides64 or yearbooks65 are not
admissible by notice of reliance as printed publications;
nor are such documents otherwise admissible by notice of
reliance.
Both parties submitted material that is not properly
made of record by notices of reliance, but neither party
has objected on this basis to the material submitted by the

organizations and letters from alleged tribal chiefs in support of
respondent’s team’s name or in reference to other alleged uses of the
name “Redskins” by sports teams.
62 Petitioners submitted minutes of a meeting of Miami University
officials; minutes of a meeting of respondent’s board of directors; a
copy of a Boston proclamation of 1755; and copies of various
contractual agreements between respondent and its musician and
cheerleader groups.
63 Respondent submitted a 1993 memo pertaining to a radio survey
regarding respondent’s team’s name.
64 To the extent that program guides are magazines available to
the general public, these documents could be submitted by notice
of reliance. Petitioners submitted covers of respondent’s
football team’s game program guides featuring realistic portraits
of identified Native American individuals, including an undated
page from an opening game and cover pages from, variously, 1955-
1960; covers of respondent’s football team’s game program guides
featuring cartoons with caricatures of Native Americans,
including several undated pages indicating “15th and 17th years,”
and pages from, variously, 1938-1958; and press guides and
program guides from, variously, 1948-1990. Respondent submitted
cover pages of respondent’s football team’s game program guides
featuring realistic portraits of identified Native American
individuals, from, variously, 1956-1960. However, the record
contains no information indicating the extent to which these
program guides may be in general circulation to the public.
65 Petitioners submitted excerpts from “Washington Redskins” yearbooks,
Redskins Magazine, and Pro! Magazine. These yearbooks and magazines
may be in general circulation to the public and, thus, amenable to
submission by notice of reliance. However, the record contains no
information in this regard.
Cancellation No. 21,069
55
other; in fact, both parties have treated all of this
material as being properly made of record by notice of
reliance. Thus, we have considered all such material of
both parties as part of the record in this case.66
We hasten to add that much of this evidence has been
submitted without proper foundation and, thus, its
probative value is severely limited. We note, however,
that some of these exhibits were identified and
authenticated by witnesses during their testimony and,
therefore, have been considered, properly, in that context.
Petitioners
1. Summary of Petitioners’ Witnesses and Evidence.
Each of the petitioners testified. Several witnesses,
namely, Joanne Chase, of the National Congress of American
Indians, Judith Kahn, of the American Jewish Committee of
Portland, Oregon, Elliott Stevens, of the Central
Conference of American Rabbis, and Walterene Swanston,
formerly of Unity 94, a coalition of minority journalist
organizations, testified as to resolutions that were passed
by their respective organizations. Harold Gross, formerly
of the Indian Legal Information Development Service,
testified about correspondence and a meeting between his

66 We have separately addressed, supra, respondent’s objections to the
admissibility of evidence on grounds other than whether the matter is
proper for submission by notice of reliance.
Cancellation No. 21,069
56
organization and Edward Bennett Williams, who owned the
“Washington Redskins” football team at the time of this
meeting and correspondence. Several witnesses testified in
their areas of expertise: Geoffrey Nunberg in linguistics,
Susan Courtney in film, Ivan Ross in trademark surveys,
Frederick Hoxie in American history, Teresa LaFromboise in
multicultural counseling issues, and Arlene Hirschfelder in
Native American educational issues. The discovery and
testimony depositions of the petitioners and witnesses, and
exhibits in connection therewith, are of record.67
2. Testimony of the Seven Petitioners.
Each of the petitioners testified that he or she is a
Native American who is a registered member of a federally
recognized Indian tribe. The petitioners described
incidents when the word “redskin(s)” was directed at them,
or at other Native Americans in their presence, by non-
Native Americans in what they described as derogatory
manners. These incidents were described as occurring at
various times during petitioners’ lives, beginning with the
petitioners’ childhoods, which go back, in some cases, to

67 To the extent that the Board has excluded certain portions of
testimony or individual exhibits, or portions thereof, in connection
with objections made by the parties, these issues will not be discussed
again herein. Rather, the discussion presumes that the excluded
material has not been considered.
Cancellation No. 21,069
57
the 1950’s. Each petitioner described feelings of anger
and humiliation, among other feelings, that he or she
experienced in these situations.
Each of the petitioners expressed his or her opinion
about the word “redskin(s),” both as a term defined as “a
Native American” and as part of the name of respondent’s
football team. To summarize some of these opinions,
petitioners were unanimous that “redskin(s)” is a racial
slur that is objectionable in any context referring to
Native Americans; that the petitioners are not honored by
the inclusion of the word “Redskins” in respondent’s
football team’s name; that the manner of use of the team
name by respondent, and the use of Native American imagery
by respondent, the media and fans is insulting; that the
part of respondent’s marks that includes a portrait of a
Native American portrays a stereotypical image; and that
the mark REDSKINETTES is demeaning to Native American
women.
Mr. Apodaca identified and authenticated the 1993
resolution of the National Congress of American Indians
(NCAI), No. EX DC-93-11, entitled “Resolution in Support of
the Petition for Cancellation of the Registered Service
Marks of the Washington Redskins AKA Pro-Football Inc.,”
which was introduced in connection with the testimony of
Cancellation No. 21,069
58
Joanne Chase, of the NCAI. The resolution includes, and
indicates NCAI’s familiarity with, the petition to cancel
in this case, the marks in the challenged registrations,
and the context in which those marks are used. The
resolution supports the petition to cancel and states that
“the 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 Americans,” and that “the use
of the registered service marks [in the challenged
registrations] by the Washington Redskins football
organization, has always been and continues to be
offensive, disparaging, scandalous, and damaging to Native
Americans.”
A copy of a 1992 resolution by the Oneida Tribe, of
which Mr. Hill is a member, was properly introduced in
connection with Mr. Hill’s testimony. It refers to, inter
alia, the “Washington Redskins,” and condemns the “use of
Indian mascots in any form for any purpose, especially
athletic teams, as being disrespectful and racist in
implication and destructive of the self-esteem of Indian
children,” and resolves “to stop, in any lawful way, the
insensitive and defamatory use of Indian characters, images
Cancellation No. 21,069
59
and names for commercial or other public purposes such as
professional sports teams like the Washington Redskins…”
3. Harold Gross.
Harold Gross testified that he was the director of the
Indian Legal Information Development Service (ILIDS)68 in
1972; that on January 15, 1972, he wrote a letter on behalf
of his Native American colleagues to Edward Bennett
Williams, the then-owner of the “Washington Redskins”
football team, urging Mr. Williams to change the name of
the football team69; and that he and a group of seven
individuals70 met with Mr. Williams to express the group’s
view that the team’s name is disparaging, insulting and
degrading to Native Americans and to request that certain
specified changes be made.71 Mr. Gross testified that, as a

68 Mr. Gross testified that the ILIDS was a legislative oversight
program located in Washington D.C. with a mission to train young Native
Americans interested in careers in journalism, law or public affairs in
the legislative process and to provide legislative information to the
Native American tribes through a monthly magazine. ILIDS was founded
in 1971 and folded into another organization, the Institute for
Development of Indian Law, in 1973.
69 The record includes a copy of this letter and subsequent letters
between Mr. Gross and Mr. Williams, including a letter from Mr.
Williams forwarding to Mr. Pete Rozelle, the then-Commissioner of the
National Football League, a copy of Mr. Gross’ original letter.
70 The record indicates that these individuals were from the following
organizations: National Congress of American Indians (NCAI), Americans
for Indian Opportunity, Youth Programs of the Bureau of Indian Affairs,
the publication Legislative Review, American Indian Movement, and
American Indian Press Association.
71 The record indicates that this group requested not only an end to the
use of the nickname “Redskins,” but also that a new name be sought;
that the use of “Indian-stereotyped images and language” in commercial
Cancellation No. 21,069
60
result of this meeting, Mr. Williams agreed only to change
certain of the lyrics of the team song, Hail to the
Redskins.
Mr. Gross expressed his personal opinion that the word
“redskin(s)” is “a derogatory, denigrating epithet, … a
racial slur which is used to describe Native Americans”;
and that the effect of the use of the word “redskin(s)” as
part of the team name is to “promulgate a stereotyped view
of Native Americans … to a very large audience of people
who have very little knowledge otherwise of the existing
culture of Native Americans.”
4. Resolutions By Organizations.
Through the testimony of Judith Kahn, Director of the
American Jewish Committee of Portland, Oregon, (AJCP),
petitioners established that the AJCP is a membership
organization with a stated mission to work with Jewish and
non-Jewish groups on issues pertaining to civil rights and
bigotry; and that on September 2, 1992, the Board of
Directors of the AJCP unanimously passed a proclamation,
which is of record herein, noting, inter alia, the team
name “Redskins,” and condemning the use of “racial or

promotion and advertising cease; that half-time performances,
cheerleader garb and performances, and the team song be revised; and
that the Washington team “actively encourage other professional sports
organizations to cease the use of similar stereotyped degradation of
America’s Indian peoples.”
Cancellation No. 21,069
61
ethnic stereotypes in the names, nicknames, or titles of
business, professional, sport or other public entities” as
“dehumanizing and promot[ing] practices that trivialize and
demean people, religious beliefs and symbols”; opposing
such use “when the affected group has not chosen the name
itself”; and encouraging such entities “to end their use of
offending stereotypes.”
Through the testimony of Rabbi Elliot Stevens,
Executive Secretary and director of publications for the
Central Conference of American Rabbis (CCAR), petitioners
established that in April, 1992, the CCAR unanimously
passed a resolution entitled “Racism,” of record herein,
which resolved to “call upon the Washington Redskins and
the Atlanta Braves to change formally their names and to
renounce all characterizations based on race or ethnic
background,” and to “call upon the Washington Redskins and
the Atlanta Braves to undertake programming in the private
sector to combat racial stereotyping in the larger
society.”
Through the testimony of Walterene Swanston,
petitioners established that Ms. Swanston, a journalist,
was the coordinator, between 1993 and 1995, of Unity 94, a
coalition of four minority journalists associations
representing Asian journalists, Black journalists, Hispanic
Cancellation No. 21,069
62
journalists and Native American journalists; that Unity 94
held a convention in Atlanta in 1994, which was attended by
approximately 6,000 people, to “demonstrate that there are
talented qualified journalists of color” and to provide
training and workshops for members; and that, immediately
prior to the convention, the Unity 94 Board of Governors
passed by a majority vote a resolution entitled the “Mascot
Resolution.” The resolution, of record herein, calls upon
various news and media organizations to, inter alia,
“officially discontinue the use of Native American and
other culturally offensive nicknames, logos and mascots
related to professional, college, high school and amateur
sports teams.” The resolution notes favorably the policy
of two newspapers to refrain from using the names “Redskins
and the derivation Skins, Redmen, Braves, Indians, Tribe
and Chiefs” to refer to sports teams.
Through the testimony of Joanne Chase, Executive
Director of the NCAI since April, 1994, petitioners
introduced from the records of the NCAI a resolution passed
by the General Assembly of the NCAI at its meeting of
December 3, 1993. The resolution, No. NV-93-143, entitled
“Resolution to Justice Department Investigation of Human
Rights Violations,” calls for “the abolition of Indian
nicknames, mascots and images and commercial use of these
Cancellation No. 21,069
63
by sporting industries, colleges, universities and
automobile manufacturers” and requests “the Justice
Department to investigate any human and civil rights
violations by colleges, universities, and public
institutions that exploit Indian imagry (sic) and
lifestyles.”
5. History Expert.
The record establishes Dr. Frederick Hoxie as
petitioners’ expert in Native American history. Dr. Hoxie
testified that he based his opinions in this case on the
published historical literature of the period and he
summarized his opinions in the following three points: (1)
that, beginning in the British colonial period of the 17th
and 18th centuries and continuing into the 19th century
period of American expansion, government policies and
public attitudes towards Native Americans were based on the
belief in the fundamental inferiority of the Native
American people and their culture; (2) that, beginning in
the late 19th century with the development of the field of
anthropology and as reflected in federal Indian policy in
the 1930's and 1940’s, there have been efforts to overcome
this “racist philosophy or viewpoint” concerning Native
Americans and to view Native Americans as equal to Anglo-
Americans and deserving of equal membership in American
Cancellation No. 21,069
64
society, and to view Native American culture as a
legitimate cultural tradition; and (3) “that the word
‘redskin’ is an artifact of the earlier period and really
has no place in modern life.”
Dr. Hoxie described the development of the
relationship between Native Americans and Anglo-Americans,
beginning with the British settlers on the east coast of
North America in the 17th century and continuing through to
the present, as based on the clear policy, first, of the
colonies, and subsequently of the new American government
as it expanded west across the Appalachian Mountains, that
their settlements should be purely European/Anglo-American
and that expansion would require the displacement of the
Native American people. This view was supported by the
commonly held belief that Native Americans were savages,
i.e., that the Native Americans were not Christians and
were uncivilized.
The new American government negotiated with the Native
Americans to create clear boundaries for separate areas of
Native American settlement. During the early 19th century,
referred to by historians as the Removal Era, the eastern
tribes were forcibly evicted from land east of the
Mississippi. Under the Removal Act of 1830, Native
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Americans were moved to settlements in Oklahoma and, later,
to sections of Nebraska and Kansas.
In the mid-1800s, the outcome of the Mexican-American
War and the California gold rush, respectively, “vastly
increased the size of the United States [and] stimulated an
extraordinary interest in settlement of the trans-
Mississippi west … placing tremendous pressure on American
Indian communities.” To address this problem, the U.S.
government transferred the Office of Indian Affairs from
the War Department to the Interior Department, which was
newly-created in 1849. The Office of Indian Affairs
administered programs that funded missionaries to establish
schools in Indian communities that Native American children
were required to attend; and established regulations of
Native American life. Dr. Hoxie finds these policies
representative of the codification into government policy
of the Anglo-American view that Native Americans “were
inferior people who required forcible education and
preparation for civilized life.” Dr. Hoxie testified that
the process of American western expansion, the creation of
Indian reservations and of a bureaucracy to administer
reservation life, and the pacification of tribes that
militarily resisted American expansion, began in the 1850’s
and peaked in the 1880’s.
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Dr. Hoxie referred to the time period from the late
1880’s to the 1930’s as a period marked by government
policies of assimilation, i.e., “forced incorporation of
Indian people into American society by forcing them through
this process of emulating Anglo-American standards of
civilization.” During the same time period, government
regulations outlawed Native American religions and
individuals were punished for practicing these religions.
Dr. Hoxie testified that at the end of the 19th
century, American scholars and political and religious
leaders realized that separation of Anglo-American and
Native American populations was no longer practical, and
they began to question the assumption that Native American
people and their culture were backward. Further, during
the 1920’s and 1930’s, American anthropologists began to
argue that Native American culture should be valued. In
1934, the passage of the Indian Reorganization Act ended
the process of land allotment established in 1887 by the
Dawes Act and allowed Native American communities to
organize their own governments. Subsequent Executive
Orders ushered in a period during which Native American
religious practices were tolerated and Native American
cultural traditions were made part of the educational
curriculum of Indian schools. These governmental policies
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recognizing the equality of Native American people and
their culture have continued to evolve to the present time.
Dr. Hoxie testified that he has encountered the word
“redskin(s)” in American popular writing of the 19th
century, including newspapers and settlers’ writings. He
concluded by expressing the opinion that, as used in these
contexts, the word “redskin(s)” is a disparaging reference
to Native Americans because it refers to them as backward,
uncivilized, savage people. Dr. Hoxie added that he has
not seen the word “redskin(s)” used by historical scholars
as part of their original prose or, during the modern
period, by the Bureau of Indian Affairs (BIA) or its
predecessors; rather, scholars and the BIA have used the
words American Indian, Native American and Indian. Dr.
Hoxie opined, further, that in the modern context the word
“redskin(s)” remains disparaging as it is “an artifact of
an earlier period during which the public at large was
taught to believe that American Indians were a backward and
uncivilized people.” Dr. Hoxie concluded by expressing his
personal opinion that, for this same reason, the use of the
word “redskin(s)” by respondent’s football team is
inappropriate and disparaging.
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6. Social Sciences Experts.
In addition to several written articles, petitioners
presented the testimony of two social sciences experts,
Teresa LaFromboise and Arlene Hirschfelder. Their
testimony addresses, inter alia, petitioners’ claims that
“redskin(s)” is a racial slur; that the use of racial slurs
perpetuates negative ethnic stereotyping; and that such
stereotyping is extremely damaging to the self esteem and
mental health of the targeted group. Proof of
psychological distress suffered by petitioners or,
generally, Native Americans, is not a necessary element of
the Section 2(a) claims herein. Thus, we do not draw any
conclusions in this regard. We find that both witnesses
discuss negative stereotyping, in the context of their
respective specialties, based essentially on their
assumptions that the word “redskin(s)” is a racial slur.
As the disparaging nature of “redskin(s)” is the legal
question before us, we consider their testimony in this
regard simply as adding to the record two additional
individual opinions as to the nature of the word
“redskin(s).”
We turn first to the testimony of Arlene Hirschfelder,
an educator and consultant in the field of Native American
studies, who expressed her opinion that Native Americans
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are portrayed in educational curricula, children’s
literature and toys, in a stereotypical manner, primarily
as savages who are a “violent, war-like, provocative”
people. She concluded that such stereotyping has a
negative effect on the self-esteem of Native American
children.
Ms. Hirschfelder expressed her personal opinion that
the word “redskin(s)” is an offensive, disparaging and
insulting word and that, even as used in connection with
the Washington football team, “Redskins” connotes Native
Americans.
Petitioners presented the testimony of Dr. Teresa
LaFromboise, an associate professor of counseling
psychology and chair of Native American Studies at Stanford
University, whose areas of specialty are multicultural
counseling and research in Native American mental health.
Dr. LaFromboise testified as to the negative effects of
ethnic stereotyping and discrimination against Native
Americans as a minority culture in the United States. She
concluded that stereotyping has a detrimental effect on the
mental health of people who are stereotyped because
stereotyping “objectifies” and “dehumanizes” the
individual, which “can lead to serious psychological
disturbance such as depression, low self-esteem.” Dr.
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LaFromboise noted that “there is a lot of evidence [in the
education literature] of low self-esteem [among Native
Americans] in terms of depression”; that this depression is
reflected in the suicide rate among Native American adults
and adolescents, which is three times greater than among
the general population; and that, among Native American
children, the suicide rate is five times greater than among
children in the general population.
Dr. LaFromboise expressed her personal opinion that
the name “Redskins,” as used by respondent’s football team,
is a negative ethnic stereotype that communicates a message
that “Indian people are ferocious, strong, war-like,
brave.”
Respondent
1. Summary of Respondent’s Witnesses and Evidence.
John Kent Cooke and Richard Vaughn testified on behalf
of respondent. Also testifying for respondent were two
linguistics experts, David Barnhart and Ronald Butters; and
a marketing and survey expert, Jacob Jacoby. Of record are
exhibits submitted in connection with testimony and
evidence submitted by respondent’s notices of reliance.
2. Respondent’s Witnesses.
John Kent Cooke, executive vice-president of
respondent, Pro-Football, Inc., and a director in
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respondent’s holding company, Jack Kent Cooke,
Incorporated, testified that the “Washington Redskins” team
was originally located in Boston; that the team was
originally known as the “Boston Braves” and, in 1933, was
renamed the “Boston Redskins”; and that the team moved to
Washington, D.C. in 1937 and was renamed the “Washington
Redskins.” Without elaborating, Mr. Cooke stated that he
is generally aware of college and high school teams that
are named “Redskins”; however, he stated that those teams
are not sponsored by or otherwise related to the
“Washington Redskins” team.
Mr. Cooke testified that the team does not have a
mascot. He acknowledged that, during the 1980’s, an
individual named Zema Williams, known as Chief Z, was a
self-described mascot and received free tickets to games, a
practice that was stopped by Mr. Cooke when he became aware
of it in 1987. Mr. Cooke also acknowledged that an
individual dressed in a Native American motif, known as
Princess Palemoon, sang the national anthem at some
“Redskins” games in the mid-1980’s; that she was not
formally associated with the team; and that, due to some
controversy as to whether she was a Native American person,
her performances were stopped.
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Mr. Cooke testified that respondent provides support
for the “Washington Redskins” Band, a volunteer band that
performs at “Redskins” games and whose costumes include
Native American-style headdresses. Additionally,
respondent has a contractual relationship with the
“Redskinettes” cheerleaders, which is an independent,
incorporated entity that is authorized to use specified
trademarks of respondent in ways approved by respondent.
Mr. Cooke testified that the song “Hail to the
Redskins” has been played at “Redskins” games since 1938;
that certain of the lyrics to the song were changed prior
to his tenure, which began in the 1980’s; that the lyrics
were changed to be sensitive to respondent’s fans; and that
the phrase “Braves on the warpath” in the song refers to
the football team “marching down the football field to
score points to win a game” rather than referring, in this
context, to Native Americans.
Mr. Cooke acknowledged that respondent’s logo design
depicts a Native American wearing feathers; and that “[t]he
Washington Redskins are named after or are associated with
Native Americans.” He expressed his opinion that, in
playing football in the National Football League and
representing the nation’s capital, the team name and logo
“reflect the positive attributes of Native Americans”; and
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that those attributes include “dedication, courage and
pride.” Mr. Cooke stated that respondent has guidelines
for its own use of its trademarks, and use by its
licensees, to ensure uniformity and to project a
professional, clean-cut and wholesome team image.72
Mr. Cooke testified that, since the 1950’s, respondent
has surveyed television broadcasts to determine
listenership and audience share. However, respondent has
never commissioned studies of fans’ beliefs and attitudes
towards the team.73 Mr. Cooke stated that respondent has
received communications both from people opposed to the use

72 In relation to a joint advertising campaign with McDonald’s,
respondent set out the following parameters for the use of “the
Redskins name, logo and image,” which Mr. Cooke testified remain the
standard:
- Reserved and Tasteful.
- Redskins Logo Not to be Changed in any way.
- No Caricatures.
- No Indian Costumes or Headresses.
- No War Chants, Yelling, Derogatory Indian Language
(i.e., “Scalp the Cowboys,” etc…).
- Use of “Hail to the Redskins” must be Presented
Tastefully.
- Film and Photography used Must be Beneficial to the
Redskins’ Image.
- No Smart-Elect (sic) Language or Humor.
- No Insulting Language or Humor.
73 Mr. Cooke and Mr. Vaughn testified that they knew of a radio survey
and a newspaper poll, both pertaining to the “Redskins” team name, and
taken independently of respondent. However, we have given no weight to
the results of the survey and poll as reported by Mr. Vaughn, and as
referred to in communications made of record by notice of reliance,
because there is no foundation established in the record for evidence
regarding the survey or poll and, thus, no basis for the Board to
consider the reliability of the methodology used, or the results
reached, in the survey or poll.
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of the word “Redskins” as part of the team name and from
people supporting the team name.
Mr. Cooke expressed his opinion that the word
“redskin(s)” means the “Washington Redskins” football club
and nothing else, regardless of whether it appears in
singular or plural form; that, except in connection with
peanuts, he has heard the word “redskin(s)” only in
reference to the football club; and that he could not
answer the question of whether it would be appropriate to
use the word “redskin(s)” in addressing a Native American
person. Mr. Cooke testified that he does not recall anyone
ever telling him that he or she considers the word
“redskin(s)” offensive as a reference to Native Americans.
Respondent also presented the testimony of Richard
Vaughn, director of communications for the “Washington
Redskins” football team. Mr. Vaughn testified that, in
responding to letters received about the team name, he
usually writes that the “Redskins” name has always been
very respectful; that the team is proud of its tradition;
and that Native Americans have always been depicted
respectfully by the team.
Mr. Vaughn expressed his personal opinion that the
word “redskin(s)” means the “Washington Redskins” football
team; and that, while he has heard the word used to refer
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to Native Americans in Western movies, it was neither
disparaging or scandalous, nor complimentary or
descriptive. Referring to newspaper cartoons representing
the “Washington Redskins” football team through various
caricatures of a Native American, Mr. Vaughn opined that
the cartoons are not disrespectful to anyone because they
are about football. He acknowledged that such
representations “are not something that we would use,” and
he described the reproduction of several of these cartoons
in the “Redskins” yearbooks as respectfully reflecting the
team’s history and traditions.
Linguistics Experts
Petitioners presented the testimony of Geoffrey
Nunberg, who the record establishes as a linguistics
expert. Respondent offered, in rebuttal, the testimony of
David Barnhart and Ronald Butters, who are also established
in the record as linguistics experts.
1. Denotation and Connotation.
These experts explained, essentially, that linguistics
is the study of language and its uses, both generally and
within particular populations or historical contexts; and
that lexicography is the branch of linguistics concerned
with the meanings of words with respect to the production
of dictionaries.
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In explaining the concepts of denotation and
connotation of words, the three experts essentially agree
that words may be denotative, a neutral description of a
thing or phenomenon, out of context and without suggesting
significant additional meanings; or connotative, describing
a thing or phenomenon and evoking a mental image or
association which may be positive, negative or neutral; and
that the connotation of a word may change over time. The
parties’ linguistics experts principally disagree over
whether a word can be intrinsically negative in
connotation, as posited by Dr. Nunberg, or whether, as
respondent’s witnesses posit, one must always look to the
context in which a word is used to determine its
connotation and whether that connotation is neutral,
positive or negative.74 However, it is unnecessary for us
to determine whether “redskin(s)” is intrinsically
positive, negative or neutral, as the record includes
numerous examples of the use of the term “redskin(s),” all
of them in a “context.” Further, as we indicate infra,
Section 2(a) requires us to consider the term or other
matter at issue in the context of the marks in their
entireties, the services identified in the challenged

74 We note that Dr. Butters’ position in this regard is mitigated by his
acknowledgment that some terms, for example, “kike” and “nigger,” are
“almost always offensive and disparaging.”
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registrations, and the manner of use of the marks in the
marketplace. Thus, we consider the meaning of the word
“redskin(s)” in this context.
2. Use of the word “redskin(s).”
Regarding the word “redskin(s),” Dr. Nunberg testified
that, throughout its approximately 300 years of use,
“redskin(s)” has been and is “a connotative term that
evokes negative associations, or negative stereotypes, with
American Indians.” Dr. Nunberg based his opinion on his
review of historical documents, namely, citations of the
word in the press, books, and encyclopedias from the late
1800’s through the first half of this century; from
contemporary citations (i.e., the latter half of this
century) in the press and in other publications; from use
of the word in movies from 1920 to the present; from
dictionary entries; and from use of the word in news
articles and correspondence associated with this
proceeding.75
Dr. Nunberg concluded that all occurrences of the word
“redskin(s)” as a reference to Native American people in
19th and early 20th century news accounts in this record are

75 Dr. Nunberg testified that newspaper articles were relevant to
reflect both the educated use and the widely circulated use of a word;
and that newspaper and television usage influence the way words are
used and understood.
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in contexts of savagery, violence and racial inferiority;
and that, thus, the word must have been considered a
disparaging word for Native Americans during this period.
Dr. Nunberg finds similar allegedly negative connotations
in historical examples of the use of the word “redskin(s)”
in the Oxford English Dictionary (2nd edition, 1986), and in
a report in the Encyclopedia Britannica (11th ed. 1910).76
He notes that certain words, such as “redskin(s),” carry
negative connotations, regardless of the context in which
they appear; and that, therefore, such words are not likely
to be found in a positive context.
Dr. Nunberg concluded that, in all the materials he
reviewed, both historical and modern, he did not find a
single denotative or neutral reference to “redskin(s)” as a
reference to Native Americans. He noted that he found
several occurrences wherein the word “redskin(s)” itself is
the subject of discussion and it appears in quotes.
On the other hand, considering the same historical and
contemporary material in the record, respondent’s experts
disagree with Dr. Nunberg’s conclusion that the word

76 This edition says the following about the term redskin(s): “Other
popular terms for the American Indians which have more or less currency
are ‘red race,’ ‘red man,’ ‘redskin,’ the last not in such good repute
as the corresponding German, ‘rothaute,’ or French, ‘peaux rouges,’
which have scientific standing.”
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“redskin(s)” has always been a connotative word of
disparagement, or that the evidence of use of the word
“redskin(s)” to refer to Native Americans reflects a
negative connotation. Rather, Mr. Barnhart described
several of the same passages discussed by Dr. Nunberg as
connotatively neutral, or even positive, uses of the word
“redskin(s)” and concluded that the word “Indian” could
easily be substituted therefor without changing the
connotation. Dr. Butters, while agreeing that much of the
quoted language disparages Native Americans, concluded that
it is not the word “redskin(s)” alone that is disparaging.
Rather, he concludes that it is the context in which the
word appears that portrays Native Americans in a
disparaging manner, and that the word “Indian” could be
easily substituted in each instance. Dr. Butters states
that “Native American,” “Indian,” and “redskin” are all
acceptable words, but that “redskin” is the least formal of
the three words and is “only a respectful minor variant
alternative for ‘American Indian.’”
Dr. Butters testified that the traditional meaning of
“redskin(s)” as identifying Native Americans is and always
has been “an overwhelmingly neutral, generally benign
alternative designator for the indigenous peoples of North
America”; that, during the second half of this century, the
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word has taken on “an important, powerfully positive new
meaning” identifying the Washington, D.C. professional
football team; that “redskin(s)” primarily refers to the
football team in contemporary American English77; and that
the connection between the contemporary meaning of
“redskin(s)” as a football team with the original meaning
as a Native American is greatly attenuated. Dr. Barnhart’s
testimony is in agreement with this position.
3. Dictionary definitions of “redskin(s).”
Regarding dictionary definitions of “redskin(s)” and
usage labels therefor, Dr. Nunberg considered definitions
of the word “redskin(s)” in a number of different
dictionaries, focusing on the several dictionaries that
include usage labels indicating that the word is offensive
or disparaging. Regarding the inconsistent application of
usage labels among the dictionaries of record, he testified
that dictionaries often do not include usage labels for
offensive words; that space is a factor determining the use
of such labels; and that no conclusions can be drawn from

77 Dr. Nunberg conceded that the majority of references to “redskin(s)”
in newspapers from the 1950’s to the present pertain to the football
team. However, he stated that this does not lead to a conclusion that
the reference to the football team is the dominant meaning; rather, it
simply means that “redskin(s)” is extremely rare in the press as a
reference to Native Americans and that the press must have strong
reasons for avoiding such use of the term.
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the lack of a usage label in other dictionary excerpts
defining “redskin(s)”.
Claiming that the majority of dictionary entries of
record do not include usage labels indicating that the word
“redskin(s)” is offensive or disparaging,78 respondent’s
linguists contend that dictionaries that have applied such
labels to the word “redskin(s)” as it refers to Native
Americans have done so incorrectly.79 Rather, both of
respondent’s linguists contend that, as a reference to
Native Americans, the word “redskin(s)” is merely informal,
has no negative connotations absent a negative context, and
remains synonymous with “Indian.”80
Regarding the inconsistent application of usage labels
among the dictionaries of record, Mr. Barnhart testified
that usage labels are decided upon by the editor of a
dictionary based on a study of the contexts in which a word
appears, including cumulative quotations, interviews,

78 We note that, in grouping the dictionary excerpts by publisher,
approximately half of the entries include usage labels.
79 Dr. Butters acknowledged that this is the only incorrect dictionary
label he could identify.
80 While maintaining his view that “redskin(s)” is an acceptable,
informal word, Mr. Barnhart acknowledged that the usage labels
appearing in some dictionaries over the last ten to fifteen years may
indicate some shift in usage of the word “redskin(s)” outside of the
sports context. Similarly, Dr. Butters acknowledged that, in the
1980’s, he began to see scholars, such as historians, sociologists and
archeologists, making reference to the word “redskin(s)” as a word that
one should probably avoid using.
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questionnaires, on-line news services, broadcast
transcripts and film; and that limited dictionary space and
the time constraints of editing all contribute to usage
labeling decisions.81 He stated, further, that unlabeled
words are assumed to be standard English; and that it is
not unreasonable for lexicographers to disagree about the
application of usage labels.
4. Use of “redskin(s)” in modern context.
All three linguistics experts spent a substantial
amount of time discussing their opinions on the meanings of
the words “scandalous,” “disparaging,” and “offensive,” the
extent to which “disparaging” and “offensive” are
synonymous, and whether the word “redskin(s)” is
scandalous, disparaging and/or offensive. Predictably, Dr.
Nunberg concluded that the word “redskin(s)” has been
scandalous, disparaging and offensive from at least 1967 to
the present82; whereas Mr. Barnhart and Dr. Butters came to
the opposite conclusion.
In support of his position, Dr. Nunberg discussed a
linguistic concept called “transfer function” which

81 However, Mr. Barnhart noted that no project with which he has been
associated has misapplied a usage label or omitted a usage label due to
time or space constraints.
82 Dr. Nunberg noted that this conclusion is not affected by the fact
that Native Americans may use this term to refer to themselves, as
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describes a process where one sense of a word is extended
to yield another sense of the word. For example, with
respect to sports team names, Dr. Nunberg testified that
the transfer is a metaphorical one in which certain
properties of the core or original meaning of the word are
exploited in forming an extended use of that word to
acquire another denotation. Referring specifically to the
“Washington Redskins,” Dr. Nunberg concluded that
“redskin(s)” conveys a savage, ferocious impression and
this original association is relied upon for its efficacy
as the name of the football team.83
Respondent’s linguistics experts reiterated their
opinion that the word “redskin(s)” is a standard, albeit
informal, English word that refers to Native American
persons; that “redskin” and Native American are completely

there is a long history of ethnic groups or other groups taking
disparaging terms and using them defiantly.
83 Dr. Nunberg testified that he studied and listed the names of
professional sports teams and concluded that these names fell in two
general categories, namely, names which relate to the local community
and names of people, animals or inanimate objects; that this latter
group of names usually sound “fierce, ferocious, savage, inhuman,
implacable so as in a symbolic way to strike fear into the hearts of
opponents”; and that “Washington Redskins” and other Indian names fall
into this latter category. In this regard, Dr. Nunberg refers to the
headlines of newspaper articles about the football team and notes that
the headlines all reflect the theme of Indians on the warpath. Dr.
Nunberg concluded that these headlines indicate the “degree to which
the association of the team name and the use of the word to refer to
Indians remains vivid and salient in the minds of sports writers and to
the general public”; and that, therefore, while “Redskins” may have
acquired another meaning as a football team, the meaning is not
divorced from, or independent of, its use to refer to Native Americans.
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synonymous; and that, while the predominant use of the word
“redskin(s)” is to refer to the football team, the lack of
use of the word to refer to Native Americans is not an
indication that the word is offensive as it pertains to
Native Americans.
Dr. Butters acknowledged that, under some
circumstances, some, but not the majority, of Americans
today would find the word “redskin(s)” offensive as a
reference to Native Americans. However, he indicated that
the word had no such negative connotations prior to 1967,
when the movement towards “political correctness” in
language began.
Dr. Nunberg disagreed with respondent’s witnesses’
claim that the word “redskin(s)” is merely informal as it
pertains to Native Americans, noting that such a conclusion
does not explain the fact that it never appears in a
neutral denotative context. Dr. Nunberg indicated that
linguists characterize words along a spectrum which ranges
from informal, through specialized and standard, to formal.
Dr. Nunberg stated, however, that placement of a word on
this spectrum does not indicate connotation; for example,
designation of a word only as “informal” does not indicate
whether it has a positive or negative connotation.
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6. Findings of fact regarding linguists’ testimony.
Each party has offered the testimony of linguistics
experts about the denotation and connotation of
“redskin(s)” as a reference to Native Americans and as it
appears in the name of respondent’s football team. To some
extent, this testimony is self-serving and the opinions of
the different individuals seem to negate each other’s
assertions, which offsets whatever probative value could be
attributed to this portion of their testimony. However, we
find that there are certain points upon which the parties’
experts agree and, further, that certain conclusions can be
drawn regarding some areas of disagreement.
There is no dispute among the linguistics experts that
the word “redskin(s)” has been used historically to refer
to Native Americans, and is still understood, in many
contexts, as a reference to Native Americans; that, from at
least the mid-1960’s to the present, the word “redskin(s)”
has dropped out of written and most spoken language as a
reference to Native Americans; that, from at least the mid-
1960’s to the present, the words “Native American,”
“Indian,” and “American Indian” are used in spoken and
written language to refer to Native Americans; and that,
from at least the mid-1960’s to the present, the word
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“redskin(s)” appears often in spoken and written language
only as a reference to respondent’s football team.
The experts agree the evidence of record establishes
that, until at least the middle of this century, spoken and
written language often referred to Native Americans in a
derogatory, or at least condescending, manner and that
references to Native Americans were often accompanied by
derogatory adjectives and/or in contexts indicating
savagery and/or violence. There is no dispute that, while
many of these usage examples refer to Native Americans as
“Indians,” the word “Indian” has remained in the English
language as an acceptable reference to Native Americans
during the second half of this century. The question
remaining, about which the parties’ experts, predictably,
disagree, is the significance of the word “redskin(s)” in
written and spoken language from the 1960’s to the present,
both as a reference to Native Americans and as part of the
name of respondent’s football team. In this regard, the
experts draw conclusions regarding the application of the
legal standards in this case that are not binding on the
Board or the courts. Thus, we have not considered these
conclusions. See, The Quaker Oats Company v. St. Joe
Processing Company, Inc., 232 F.2d 653, 109 USPQ 390 (CCPA
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1956); and American Home Products Corporation v. USV
Pharmaceutical Corporation, 190 USPQ 357 (TTAB 1976).
However, the experts made several statements in
reaching their conclusions that bear scrutiny. For
example, while respondent’s linguistics experts contend
that the word “redskin(s)” is merely an informal term,
petitioners’ expert notes, credibly, that such a
characterization does not address the issue of whether the
connotation of “redskin(s)” in any given instance is
negative, neutral or positive. Nor does the
characterization of the word “redskin(s)” as informal
adequately address the question of why the word appears, on
this record, to have entirely dropped out of spoken and
written language since, at least, the 1960’s, except in
reference to respondent’s football team.
Looking to dictionary definitions of the word
“redskin(s),” the experts agree that the many dictionaries
in evidence, including dictionaries from the time periods
when each of the challenged registrations issued, define
“redskin” as a Native American person; that one dictionary
also defines “Redskin” as respondent’s professional
football team; and that several dictionaries, dating from
1966 to the present, include usage labels indicating that
the word “redskin” is an offensive reference to Native
Cancellation No. 21,069
88
Americans, whereas several other dictionaries, dating from
1965 to 1980, do not include such usage labels in defining
“redskin.” Predictably, the experts’ opinions differ as to
the significance to be attached to the usage labels, or the
lack thereof. We find these contradictory opinions of
little value in resolving this dispute. Thus, we have
considered the dictionary definitions themselves in the
context of the entire record.
Film Expert
Susan Courtney84 testified that she was hired by
Geoffrey Nunberg, in connection with his testimony as a
linguistics expert for petitioners in this case, to conduct
a study of the use of the word “redskin(s)” in American
film. Ms. Courtney compiled a filmography, i.e., a
bibliography of films, of fifty-one Western genre films
that were produced up to and including the 1970’s. Based
primarily on availability, she viewed twenty of the films
listed in her filmography to determine whether the word
“redskin(s)” is used in any of the viewed films. She
cataloged her results and prepared both a video containing
excerpts of the viewed films wherein the word “redskin(s)”

84 At the time she compiled this study, Ms. Courtney was a Ph.D
candidate at the University of California at Berkeley in the Rhetoric
Department. She was specializing in American cinema and the
representation of gender and race in film, literature and other
cultural contexts.
Cancellation No. 21,069
89
is used, and an interpretive index describing the excerpted
scenes and the use of the word “redskin(s)” therein. She
offered her opinion that the excerpted films are
representative both of the Western genre in American film
and of the manner in which Native Americans are depicted in
American film.
Ms. Courtney stated that, in the twenty films viewed,
she looked for any usage of the word “redskin(s)”, either
positive or negative, but that she did not find any
instance in which the word “redskin(s)” is used in a
positive manner. Ms. Courtney drew the conclusion from her
research viewing these films that the word “redskin(s)” is
significantly different from other words that refer to
Native American people. She stated that, in the films, the
word “redskin(s)” is often coupled with negative adjectives
such as “dirty,” or “lying”; or that the word is used in
the context of violence, savagery, or dishonesty; and that
the word “Indian” could not reasonably be substituted for
the word “redskin(s)” and retain the same connotation. She
noted that she did not track the use of words other than
“redskin(s)” in her research, so she cannot conclude that
the word “Indian” is not also used in a derogatory manner.
Cancellation No. 21,069
90
Survey Evidence
1. Petitioners’ Survey.
Ivan Ross, a market research and consumer
psychologist, described the methodology and results of a
telephone survey that he designed and supervised on behalf
of petitioners. He stated that the purpose of the survey
was to determine the perceptions of a substantial composite
of the general population and of Native Americans to the
word “redskin(s)” as a reference to Native Americans.
Three hundred one American adults, representing a random
sample of the general population, and 358 Native American
adults were surveyed. Both groups included men and women
ages 16 and above. These individuals were identified
according to a random sampling procedure, which Dr. Ross
described in the record. Dr. Ross described the Native
American population as a stratified sample, wherein census
reports were used to identify the twenty states with the
largest numbers of Native Americans, from which the Native
American sample was chosen according to a random sample
plan. Dr. Ross testified that the Native American sample
reflected a consistent mix of rural and urban Native
Americans; and included both registered members of Indian
tribes and non-registered individuals who identified
themselves as Native American.
Cancellation No. 21,069
91
Individuals in both population groups were read a
list, in varying order, of the following terms: “Native
American,” “Buck,” “Brave,” “Redskin,” “Injun,” “Indian,”
and “Squaw.” With respect to each term, participants were
asked whether or not they, or others, would be “offended”
by the use of the term85 and, if so, why. Dr. Ross
testified that he chose these terms as representative of a
spectrum of acceptability, positing that, in general,
“Native American” would be likely to be considered
acceptable and “Injun” would be likely to be considered
pejorative. Dr. Ross testified that, for the question, he
chose the word “offensive” as most likely to reflect, to
those unfamiliar with trademark law, the behavioral
concepts embodied in the terms “scandalous” and
“disparaging” in the trademark law. Dr. Ross stated that
asking participants whether others might be offended is an
accepted additional means of obtaining the speaker’s
opinion, based on the assumption that the speaker may be
circumspect in answering a direct question.
Dr. Ross tabulated the results three different ways.
First, he grouped together responses to both questions “is
it offensive to you” and/or “is it offensive to others.”

85 This question was changed so that it was posed to participants,
variably, with either the positive or the negative option stated first.
Cancellation No. 21,069
92
He also tabulated the results considering responses only to
the question “is it offensive to you” and he separately
tabulated responses only to the question “is it offensive
to others.” In all cases, and in both population groups,
the tabulated order of “offensiveness” of the terms was the
same, although the percentage of the sample finding each
term “offensive” differed between the two population
groups. Following is the tabulation of only those
responses indicating that the speaker was personally
offended.
Number and percentage answering “yes, offensive to me”:
General Population Sample Native American Sample
(total sample=301) (total sample=358)
Yes Yes
INJUN 149 (49.5%) 181 (50.6%)
REDSKIN 139 (46.2%) 131 (36.6%)
SQUAW 109 (36.2%) 169 (47.2%)
BUCK 110 (36.5%) 99 (27.7%)
BRAVE 30 (10.0%) 25 (7.0%)
INDIAN 8 (2.7%) 28 (7.8%)
NATIVE
AMERICAN 6 (2.0%) 10 (2.8%)
2. Respondent’s Rebuttal.
In response to petitioners’ survey and testimony of
Dr. Ross, respondent presented the testimony of Jacob
Jacoby, a psychologist and expert in the area of marketing
and trademark surveys. Not surprisingly, Dr. Jacoby
presented a detailed attack on the design of the survey,
its implementation, and the tabulation of results. For
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93
example, regarding the questions asked, Dr. Jacoby
contended, inter alia, that the questions asked were
leading and not neutral; that the list of words referring
to Native Americans contained an insufficient number of
words; that, in using the term “offensive” in its
questions, the survey did not ascertain the appropriate
information for a determination under Section 2(a); and
that research shows that proxy respondents, i.e., asking
what others think, leads to ambiguous results. Regarding
the sampling procedure, Dr. Jacoby contended, inter alia,
that the Native American sample is too geographically
limited to be representative; that the method for
determining whether a participant is Native American is
flawed; that the birthday sample method employed violates
the randomness of the survey and, further, that the age
parameters include participants who could not reflect the
state of mind of people in 1967; and that there was a less
than 50% response rate to the survey, which renders it a
very weak probability survey. Regarding the tabulation of
the results of the survey, Dr. Jacoby contends, inter alia,
that certain responses were incorrectly tabulated as
positive responses, in particular, those responses
dependent upon the context in which the word may be used,
and those responses indicating that others may be offended.
Cancellation No. 21,069
94
Dr. Jacoby concluded that the defects he has
identified in the sampling plan, in the questions asked as
part of the survey, and in the tabulation of the results
render it completely unscientific. Dr. Jacoby expressed
his opinion that the survey is further flawed because it
sought the current views of its participants rather than
their perceptions during the relevant time period; and it
failed to obtain perceptions of the word “redskin(s)” as
used in the context of respondent’s team name.
3. Findings of Fact regarding survey.
In view of the contradictory testimony of the parties’
marketing experts regarding the extent to which
petitioners’ survey realized its stated objective, we find
it useful at this time to state our factual conclusions
regarding this survey. While a few of Dr. Jacoby’s
criticisms have some merit, we note that no survey is
perfect and even a flawed survey may be received in
evidence and given some weight if the flaws are not so
severe as to deprive the survey of any relevance. See, Lon
Tai Shing Co. Ltd. v. Koch & Lowy, 19 USPQ2d 1081 (S.D.N.Y.
1990) and cases cited therein; and Selchow & Righter Co. v.
Decipher, Inc., 598 F. Supp. 1489, 225 USPQ 77, 86 (E.D.
Va. 1984). After careful consideration of Dr. Ross’
testimony, the survey report and the substantial survey
Cancellation No. 21,069
95
data in the record, we find ample support for the viability
of the survey methodology used, including the sampling
plan, the principal questions asked, and the manner in
which the survey was conducted.86
However, we agree that this survey is not without
flaws. In particular, we are not convinced that a survey
participant’s conjecture about the views of “others”
actually reflects the participant’s personal views. We see
little value to this question in the survey, and we find
the survey results tabulated by merging positive answers to
questions both about the participant’s personal reaction to
the word list and his opinion about others’ reactions to be
of questionable significance. Thus, we have given this
portion of the survey results no weight. However, this
flaw does not negatively affect the results of the survey
as tabulated only for actual positive responses regarding
participants’ personal reactions to the word list.
Further, our review of the transcripts of the actual
interviews convinces us that the interviewers accurately

86 We specifically mention the use of the word “offensive” in the survey
question as the linguistics and survey experts of both parties argued
about whether “offensive” adequately reflects the meaning of
“disparage,” as used in Section 2(a). We find that the dictionary
definitions of “disparage,” as well as the testimony of these experts,
indicates that the words are sufficiently similar in meaning to justify
the use of “offensive” in the survey questions.
Cancellation No. 21,069
96
transcribed results as either positive, negative, or no
opinion.87
We find no error in including adults aged 16 and above
in the survey, even though the younger participants were
not alive, or not adults, at the time of registration of
several of respondent’s marks herein. Dr. Ross does not
represent this survey as anything other than a survey of
current attitudes as of the time the survey was conducted.
We agree with Dr. Jacoby that a survey of attitudes as of
the dates of registration of the challenged registrations
would have been extremely relevant in this case, if such a
survey could be credibly constructed. But neither party
chose to undertake such a survey.
Similarly, a survey that considered participants’
views of the word “redskin(s)” as used by respondent, the
media and fans in connection with respondent’s football
team would have been extremely relevant. But, again,
neither party chose to undertake such a survey.
Neither of these points diminishes the value of
petitioners’ survey for what it is – a survey of current
attitudes towards the word “redskin(s)” as a reference to

87 In several instances, a participant responded that “yes” he or she
would be offended by a certain term “depending upon the context” in
which it was used. While, in hindsight, a follow-up question to
clarify this response might have been useful, we find no error in
tabulating this as a positive response.
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97
Native Americans. In this regard, we find that the survey
adequately represents the views of the two populations
sampled. While certainly far from dispositive of the
question before us in this case, it is relevant and we have
accorded some probative value to this survey, as discussed
in our legal analysis, infra.
Applicable Legal Principles
The case herein is a petition to cancel several
registrations, the oldest of which issued almost twenty-
five years prior to the filing of this petition. For the
reasons stated in the March 11, 1994, interlocutory
decision addressing this issue (Harjo, et al. v. Pro
Football, Inc., 30 USPQ2d 1828, 1832 (1994)) and reaffirmed
herein, our decision on the Section 2(a) issues in this
case pertains to the time periods when the subject
registrations issued.88 The Board must decide whether, at
the times respondent was issued each of its challenged
registrations, the respondent’s registered marks consisted

88 We note that, because petitioners allege that the term “redskin(s)”
is, and always has been, a derogatory term in connection with Native
Americans, we have considered the evidence pertaining to the entire
period of history presented in the record, from the mid-nineteenth
century to the present. Evidence concerning the significance of the
term “redskin(s)” before and after the relevant time periods may shed
light on its significance during those periods. Our opinion in this
case is not inconsistent with the cases cited herein stating that the
issue of scandalousness must be decided on the basis of “contemporary
attitudes,” as those cases are all ex parte cases wherein the issue of
scandalousness is being addressed, similarly, “at the time of
registration” or when registration was being sought.
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98
of or comprised scandalous matter, or matter which may
disparage Native American persons, or matter which may
bring Native American persons into contempt or disrepute.89
Section 2(a)
The relevant portions of Section 2 of the Trademark
Act (15 U.S.C. 1052)90 provide as follows:
No trademark by which the goods of the applicant
may be distinguished from the goods of others
shall be refused registration on the principal
register on account of its nature unless it –
(a) Consists of or comprises immoral,
deceptive, or scandalous matter; or
matter which may disparage or falsely
suggest a connection with persons,

89 While respondent does not appear to contest this point, petitioners
state that an issue in this case is whether petitioners have
established their standing, contending, of course, that they have. We
previously found that petitioners had pleaded a legitimate interest in
the outcome of this proceeding. Harjo, et al. v. Pro Football, Inc.,
supra at 1830. We now agree that petitioners have established by
proper evidence their standing herein. See, Bromberg, et. al. v.
Carmel Self Service, Inc., 198 USPQ 176 (TTAB 1978); and Ritchie v.
Simpson, No. 97-1371 (Fed. Cir. March 15, 1999) (1999 U.S. App. LEXIS
4153).
90 Respondent contends that because its constitutional rights would be
abridged by cancellation of its registrations, petitioners should be
required to establish their case by “clear and convincing” evidence.
However, we have elsewhere in this opinion stated that the
constitutional issues raised by respondent have not been considered
because such issues are not properly before the Board.
It is well established that a registration is prima facie valid
and that, in an opposition or cancellation proceeding, the challenger’s
burden of proof generally is a preponderance of the evidence. See,
Cerveceria Centroameicana, S.A. v. Cerveceria India, Inc., 892 F.2d
1021, 13 USPQ2d1307, 1309 (Fed. Cir. 1989); and Eastman Kodak Co. v.
Bell & Howell Document Management Products Co., 994 F.2d 1569, 26
USPQ2d 1912 (Fed. Cir. 1993). As noted by petitioners, the case cited
by respondent in support of its contention, Woodstock’s Enters., Inc.
v. Woodstock’s Enters., Inc., 43 USPQ2d 1440 (TTAB 1997), addresses the
traditionally higher burden of proof required in fraud cases, which is
not the issue herein. We are not aware of any authority that would
warrant applying a standard of proof other than a preponderance of the
evidence to Section 2(a) issues.
Cancellation No. 21,069
99
living or dead, institutions, beliefs,
or national symbols, or bring them into
contempt, or disrepute;
Scandalous Matter
The vast majority of the relevant reported cases
involving that part of Section 2(a) with which we are
concerned in this case were decided principally on the
basis of whether the marks consisted of scandalous matter.
We begin with a review of this precedent.
Faced with a “paucity of legislative history,” to aid
in interpreting the term “scandalous” in Section 2(a), one
of the predecessor courts of our primary reviewing court
found that it must look to the “ordinary and common
meaning” of that term, which meaning could be established
by reference to court and Board decisions, and to
dictionary definitions. In particular, the Court looked to
dictionary definitions extant at the time of the enactment
of the Trademark Act in 1946, and noted that “scandalous”
was defined as “‘Giving offense to the conscience or moral
feelings; exciting reprobation, calling out
condemnation * * *. Disgraceful to reputation * * *.’
[and] ‘shocking to the sense of truth, decency, or
propriety; disgraceful, offensive; disreputable, as
scandalous conduct.’” In re McGinley, 660 F.2d 481, 211
USPQ 668, 673 (CCPA 1981). In a case predating the
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100
Trademark Act of 1946, the Court had looked to similar
dictionary definitions of “scandalous,” and concluded that
the use of the mark MADONNA upon wine which is not limited
to a religious use was “scandalous” under the relevant
provision of the 1905 Trademark Act. In re Riverbank
Canning Co., 95 F.2d 327, 37 USPQ 268, 269 (CCPA 1938).
The Board has acknowledged that the guidelines for
determining whether a mark is scandalous are “somewhat
vague” and the “determination [of whether] a mark is
scandalous is necessarily a highly subjective one.” In re
Hershey, 6 USPQ2d 1470, 1471 (TTAB 1988); and In re Over
Our Heads Inc., 16 USPQ2d 1653, 1654 (TTAB 1990).
Nonetheless, taking as their starting point the “ordinary
and common meaning” of scandalous, as did the CCPA in
Riverbank Canning, supra, and McGinley, supra, the U.S.
Court of Appeals for the Federal Circuit and this Board
have, in subsequent decisions, established some guidelines
for determining whether matter is scandalous. In the
context of an ex parte refusal to register the mark BLACK
TAIL in connection with adult magazines, the Court of
Appeals for the Federal Circuit summarized this guidance in
In re Mavety Media Group Ltd., 31 USPQ2d 1923, 1925 (1994),
as follows:
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101
The PTO must consider the mark in the context of
the marketplace as applied to only the goods
described in Mavety’s application for
registration. Furthermore, whether the mark
BLACK TAIL, including innuendo, comprises
scandalous matter is to be ascertained (1) from
“the standpoint of not necessarily a majority,
but a substantial composite of the general
public,” and (2) “in the context of contemporary
attitudes.” (citations omitted.)
While not often articulated as such, determining
whether matter is scandalous involves, essentially, a two-
step process. First, the Court or Board determines the
likely meaning of the matter in question and, second,
whether, in view of the likely meaning, the matter is
scandalous to a substantial composite of the general
public. Relevant precedent holds that the meaning of the
matter in question cannot be determined by reference only
to dictionary definitions, as many words have multiple
definitions (denotative meanings), and the connotation of a
word, phrase or graphics is usually dependent upon the
context in which it appears.91 See, In re Mavety Media
Group Ltd., supra at 1927. Thus, the meaning of the matter
in question cannot be ascertained without considering (1)
the relationship between that matter and any other element

91 In the testimony of the linguistics experts herein, a distinction is
made between the denotative and connotative meanings of words. We use
the term “denotation” to signify the “literal,” or dictionary, meaning
of a word and the term “connotation” to signify the meaning of that
word in a particular context, which may or may not be the same as the
word’s denotative meaning.
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102
that makes up the mark in its entirety and (2) the goods
and/or services and the manner in which the mark is used in
the marketplace in connection with those goods and/or
services.
For example, finding that dictionary definitions alone
were insufficient to establish that the mark BLACK TAIL, in
connection with adult magazines, is scandalous, the Court
in In re Mavety Media Group Ltd., supra at 1927, concluded
that there were several definitions of “tail,” only one of
which was vulgar; that two of these definitions were
equally plausible in connection with the identified
magazines; and that the record was devoid of evidence
demonstrating which of these definitions a substantial
composite of the general public would choose. See also, In
re Hershey, supra92; In re Thomas Laboratories, Inc., 189
USPQ 50 (TTAB 1975)93; and In re Hepperle, 175 USPQ 512
(TTAB 1972).94

92 In Hershey, the Board found, particularly in view of labels showing a
design of a large-beaked bird directly below the mark, that dictionary
definitions and six articles from the NEXIS database were insufficient
to establish a vulgar meaning of “pecker” in the BIG PECKER BRAND mark,
or that it would be so understood by a substantial composite of the
general public.
93 In Thomas Laboratories, giving “fullest consideration to the moral
values and conduct which contemporary society has deemed to be
appropriate and acceptable,” the Board found not scandalous a mark
consisting of a “cartoon-like representation of a melancholy, unclothed
male figure ruefully contemplating an unseen portion of his genitalia”
where the goods were identified as corrective implements for increasing
the size of the human penis.
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103
Additionally, while the decisional law may suggest
that intent, or lack thereof, to shock or to ensure that
the scandalous connotation of a mark is perceived by a
substantial composite of the general public is one factor
to consider in determining whether a mark is scandalous,
there is no support in the case law for concluding that
such intent, or a lack thereof, is dispositive of the issue
of scandalousness. See, In re Old Glory Condom Corp., 26
USPQ2d 1216 (TTAB 1993)95; and In re Wilcher Corp., 40
USPQ2d 1929 (TTAB 1996).96
Matter Which May Disparage
The plain language of the statute makes clear that
disparagement is a separate and distinct ground for
refusing or canceling the registration of a mark under

94 In Hepperle, the Board found that, while ACAPULCO GOLD may be a
synonym for marijuana, when the mark was applied to suntan lotion it
was likely to suggest, to the average purchaser, in a normal marketing
milieu, the resort city of Acapulco, which is noted for its sunshine.
95 In Old Glory, the Board found the mark, OLD GLORY CONDOM CORP and
design of American flag in the shape of condom, for condoms, not
scandalous, noting that “the seriousness of purpose surrounding the use
of applicant’s mark -- which (is made) manifest to purchasers on the
packaging for applicant’s goods -- is a factor to be taken into account
in assessing whether the mark is offensive or shocking.”
96 In Wilcher, the Board found that the mark, DICKHEADS and a design
which is a grotesque caricature of a man’s face formed with a depiction
of male genitalia, for restaurant services, was scandalous despite
dictionary evidence indicating several possible connotations of the
word portion of the mark, as the drawing “clearly and blatantly
projects a vulgar connotation.”
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104
Section 2(a).97 However, there is relatively little
published precedent or legislative history to offer us
guidance in interpreting the disparagement provision in
Section 2(a).98 As with scandalousness, the determination

97 This is notwithstanding the fact that a number of older decisions
appear to consider scandalousness and disparagement under Section 2(a)
as a single issue wherein the questionable matter is determined to be
scandalous, or not, because it is, or is not, disparaging. See, In re
Reemtsma CigarettenFabriken G.m.b.H., 122 USPQ 339 (TTAB 1959); and In
re Waughtel, 138 USPQ 595 (TTAB 1963).
98 The following comments concerning disparagement in the legislative
history of the Trademark Act of 1946, P.L. 79-489, Chapt. 540, July 5,
1946, 60 Stat. 427, are excerpted from a discussion of whether the
disparagement provisions of Section 2(a) will protect associations from
the use by unauthorized third parties of their names or insignia on
goods. It follows a discussion of Section 2(c) regarding the use of
the name, etc., of a deceased president of the United States. Hearings
on H.R. 4744 Before the Subcommittee on Trademarks of the House
Committee on Patents, 76th Cong., 1st Sess. 18-50 (1939):
MR. LANHAM. It seems to me that there might be a little doubt, Mr.
Rogers, as to whether [Section 2(a)] is sufficiently comprehensive
[to include within the connotation of the word ‘institution’
fraternal organizations and other various groups]. [Section 2(a)]
prohibits disparaging persons, living or dead, institutions,
beliefs, or national symbols.
MR. FENNING. I think there has been no real trouble with the 1905
statute as it stands now, as I understand it. The wording in the
statute with respect to insignia has apparently been satisfactory,
and it seems to me it might be just as well to carry it over. There
may be controversy over what some people call disparagement.
MR. LANHAM. Of course, that is the very thing that subsection (a)
was designed to meet.
MR. ROGERS. Yes, sir.
MR. FENNING. There is a good deal of question as to what
disparagement is. If excellent athletic goods, for instance, are
marketed with the name of the New York Athletic Club on them, that
is not detrimental to the club.
MR. LANHAM. Of course, I am not sitting here in a judicial
capacity, and I cannot construe that.
MR. ROBERTSON. Mr. Chairman, I have not any hesitation at all in
saying that I do not think that section as presently drawn does
cover the matter at all. The word “disparaging” is too
Cancellation No. 21,069
105
of whether matter may be disparaging is highly subjective
and, thus, general rules are difficult to postulate.
However, we undertake an analysis similar to that
undertaken by the Court and Board in relation to
scandalousness to make our determination herein. As with
scandalousness, we begin by considering the “ordinary and
common” meaning of the term “disparage.” Then, to
determine whether matter may be disparaging, we undertake a
two step process of considering, first, the likely meaning
of the matter in question and, second, whether that meaning
may be disparaging.

comprehensive in meaning. For instance, it does not cover the use
of an ex-President’s name the use of it in a respectful manner on
goods on which the family might not desire it used. That is not
disparagement at all, but at the same time it does not cover that
situation.
MR. FRAZER [Assistant Commissioner of Patents]. I would like to
make this suggestion with respect to the word “disparage.” I am
afraid that the use of that word in this connection is going to
cause a great deal of difficulty in the Patent Office, because, as
someone else has suggested, that is a very comprehensive word, and
it is always going to be just a matter of the personal opinion of
the individual parties as to whether they think it is disparaging.
I would like very much to see some other word substituted for that
word “disparage.”
MR. LANHAM. That seems to me, in the light of administration, to be
a very pertinent suggestion, and if you gentlemen can clarify that
with verbiage you suggest it would be helpful.
The legislative history does not indicate whether the suggestions
solicited by Mr. Lanham were made. Further, if made, they certainly
were not adopted, as the word “disparage” appears in the Trademark Act
of 1946 without further explanation. Thus, Congress essentially left
to the courts and Board the task of establishing the meaning of this
provision of the statute and guidelines for its applicability.
Cancellation No. 21,069
106
To establish the meaning of the term “disparage,” we
refer to dictionaries that were contemporaneous with the
passage of the Trademark Act of 1946. “Disparage” is
defined as follows:99
Webster’s New International Dictionary, G. & C.
Merriam Company (2nd ed. 1947) –
2. To dishonor by comparison with what is
inferior; to speak slightingly of; to deprecate;
to undervalue; 3. To degrade; lower; also
(chiefly passive), to discourage by a sense of
inferiority;
New “Standard” Dictionary of the English
Language, Funk and Wagnalls Company (1947) –
1. To regard or speak of slightingly. 2. To
affect or injure by unjust comparison, as with
that which is unworthy, inferior, or of less
value or importance; as, I do not say this to
disparage your country. 3. [Rare] To degrade in
estimation by detractive language or by
dishonoring treatment; lower; dishonor; as, such
conduct disparages religion.
From these definitions we conclude that, in considering
whether matter in a mark “may disparage … persons, living
or dead, institutions, beliefs, or national symbols,” we
must determine whether, in relation to identified “persons,
living or dead, institutions, beliefs, or national
symbols,” such matter may dishonor by comparison with what

99 We note that the meaning of “disparage” has not changed appreciably
since the passage of the Lanham Act. The 1993 edition of the Random
House Unabridged Dictionary defines “disparage” as “to speak of or
treat slightingly; depreciate; belittle; to bring reproach or discredit
upon; lower the estimation of.”
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is inferior, slight, deprecate, degrade, or affect or
injure by unjust comparison.
Considering the “ordinary and common” meanings of the
words “scandalous” and “disparage,” we find that distinct
differences in these meanings dictate that we apply
different standards for determining disparagement from
those enunciated by the Court and Board for determining
scandalousness. In particular, the “ordinary and common
meaning” of “scandalous” looks at the reaction of American
society as a whole to specified matter to establish whether
such matter violates the mores of “American society” in
such a manner and to such an extent that it is “shocking to
the sense of truth, decency or propriety,” or offensive to
the conscience or moral feelings, of “a substantial
composite of the general public.” On the other hand, the
“ordinary and common meaning” of the word “disparage” has
an entirely different focus, as disparagement has an
identifiable object which, under Section 2(a) of the
Trademark Act, may be “persons, living or dead,
institutions, beliefs or national symbols.”
A further difference between scandalousness and
disparagement is found in the language of Section 2(a).
While Section 2(a) precludes registration of matter that is
scandalous, it does not preclude registration of matter
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that is disparaging. It precludes registration of matter
that may be disparaging. There is no legislative history
or precedent that specifically addresses this distinction
between the two statutory provisions. Respondent’s
linguistics experts herein have testified that, as they
understand the meaning of the word “disparage,”
disparagement of someone or something usually requires some
degree of intent by the speaker to cause offense, although,
as petitioners’ expert notes, this may be inferred from the
circumstances and from evidence regarding the acceptability
of the language or imagery used. Thus, we believe the use
of the term “may” is necessary in connection with
“disparage” in Section 2(a) to avoid an interpretation of
this statutory provision that would require a showing of
intent to disparage. Such a showing would be extremely
difficult in all except the most egregious cases. Rather,
this provision, as written, shifts the focus to whether the
matter may be perceived as disparaging.100
In seeking guidance for determining, under Section
2(a), whether matter may be perceived as disparaging, we
look to the limited precedent of the courts and the Board

100 Thus, as with scandalousness, the intent, or lack thereof, to ensure
that the disparaging connotation of matter in a mark is so perceived is
merely one factor to consider in determining whether a mark may be
disparaging. It is not dispositive of the issue of disparagement.
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on the issue of disparagement, as well as to the previously
enunciated precedent on the related issue of
scandalousness. As with most trademark issues, including
scandalousness, the question of disparagement must be
considered in relation to the goods or services identified
by the mark in the context of the marketplace. See, In re
Riverbank Canning Co., supra at 269. See also, Doughboy
Industries, Inc. v. The Reese Chemical Company, 88 USPQ 227
(Pat. Off. 1951), wherein the Patent Office denied, ex
parte, the registration of DOUGH-BOY for an anti-venereal
medication. In that case, the Patent Office concluded
that, as with scandalousness, the question of disparagement
must be determined by reference to the particular goods in
connection with which the mark is used. The Patent Office
found the mark DOUGH-BOY, a name for American soldiers in
the first World War, to be disparaging as used in
connection with the identified goods, particularly in view
of the packaging which pictured an American soldier.
To ascertain the meaning of the matter in question, we
must not only refer to dictionary definitions, but we must
also consider the relationship between the subject matter
in question and the other elements that make up the mark in
its entirety; the nature of the goods and/or services; and
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the manner in which the mark is used in the marketplace in
connection with the goods and/or services.
If, in determining the meaning of the matter in
question, such matter is found to refer to an identifiable
“[person or] persons, living or dead, institutions,
beliefs, or national symbols,” it is only logical that, in
deciding whether the matter may be disparaging, we look,
not to American society as a whole, as determined by a
substantial composite of the general population, but to the
views of the referenced group.101 The views of the
referenced group are reasonably determined by the views of
a substantial composite thereof. In this regard, we follow
the precedent established by the Board in In re Hines, 31
USPQ2d 1685, 1688 (TTAB 1994),102 vacated on other grounds,
32 USPQ2d 1376 (TTAB 1994), wherein the Board stated the
following:
In determining whether or not a mark is
disparaging, the perceptions of the general
public are irrelevant. Rather, because the

101 It is very possible that disparaging matter may provoke a negative
reaction from only the relevant group. Thus, matter that may disparage
does not necessarily provoke the same widespread societal reaction as
scandalous matter. However, if allegedly disparaging matter provokes a
widespread negative societal reaction, it is reasonable to infer that
the relevant group will, similarly, perceive the matter as disparaging.
Further, depending on the facts, matter that may disparage can be
found, also, to be scandalous under Section 2(a).
102 In Hines, the Board found the mark BUDDA BEACHWEAR and design for
various casual clothing items to be disparaging in view of the
particular depiction of Buddha therein.
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portion of Section 2(a) proscribing disparaging
marks targets certain persons, institutions or
beliefs, only the perceptions of those referred
to, identified or implicated in some recognizable
manner by the involved mark are relevant to this
determination.
Who comprises the targeted, or relevant, group must be
determined on the basis of the facts in each case. For
example, if the alleged disparagement is of a religious
group or its iconography, the relevant group may be the
members and clergy of that religion; if the alleged
disparagement is of an academic institution, the relevant
group may be the students, faculty, administration, and
alumni; if the alleged disparagement is of a national
symbol, the relevant group may be citizens of that country.
See also, In re Reemtsma Cigarettenfabriken G.m.b.H., 122
USPQ 339 (TTAB 1959)103; In re Waughtel, 138 USPQ 594, 595
(TTAB 1963)104; and In re Anti-Communist World Freedom
Congress, Inc., 161 USPQ 304, 305 (TTAB 1969).105

103 The mark in Reemtsma, SENUSSI, which is the name of a Moslem group
that forbids the use of cigarettes, for cigarettes, was found to be an
affront to the members of this group and tended to disparage their
beliefs.
104 The mark in Waughtel, AMISH and design of an Amish man smoking a
cigar, for cigars and cigar boxes, was found not to affront members of
that sect or disparage their religious or moral beliefs because
evidence established that nothing in Amish religious principles or
teachings prohibits the raising or use of tobacco and, in fact, at
least seventy-five percent of the male members of the Amish sect smoke
cigars and/or chew tobacco.
105 The mark in Anti-Communist World Freedom Congress, consisting of a
design of a large “X” superimposed over a hammer and sickle design, for
“patriotic educational services, namely, dissemination of information
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We distinguish Hines and the case herein from the case
of Greyhound Corp. v. Both Worlds, Inc., 6 USPQ2d 1635
(TTAB 1988). In Greyhound, on summary judgment, the Board
sustained the opposition on the grounds of scandalousness,
disparagement, and likelihood of confusion. The mark in
question was a design of a defecating greyhound dog, for
polo shirts and T-shirts. Citing the Restatement (Second)
of Torts §629 (1977), wherein disparagement is defined as
the publication of a statement, which the publisher intends
to be understood, or which the recipient reasonably should
understand, as tending “to cast doubt upon the quality of
another’s land, chattels, or intangible things,” the Board
established the following standard:
The two elements of such a claim [of
disparagement] are (1) that the communication
reasonably would be understood as referring to
the plaintiff, and (2) that the communication is
disparaging, that is, would be considered
offensive or objectionable by a reasonable person
of ordinary sensibilities. (citations omitted)
The disparagement in the Greyhound case involved an
“offensive” design that disparages a commercial corporate
entity and, thus, is akin to the commercial disparagement
of property described in §629 of the Restatement (Second)

relative to United States laws concerning activities of the communist
party,” was found to disparage the national symbol of the Soviet Union.
Applicant’s intent to disparage the Communist Party rather than the
Soviet Union was considered irrelevant.
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of Torts, supra. The disparaging trademark casts doubt
upon the quality of opposer’s corporate goodwill, as
embodied in its running greyhound dog trademarks. The
standard in that case, namely, the perception of a
“reasonable person of ordinary sensibilities,” may be
appropriate in cases involving alleged disparagement of
individuals or commercial entities. However, the standard
enunciated in In re Hines, supra, namely, the perceptions
of “those referred to, identified or implicated in some
recognizable manner by the involved mark,” is appropriate
for determining whether matter may disparage a non-
commercial group, such as a religious or racial group, or
beliefs or national symbols.
Matter Which May Bring Persons Into Contempt Or Disrepute
We turn, finally, to the Section 2(a) provisions
regarding contempt or disrepute. We find no guidance in
the legislative history for interpreting this provision and
note that this provision is addressed in the case law,
generally, in a conclusory manner with few, if any,
guidelines. In view of the “ordinary and common” meanings
of the words “contempt” and “disrepute,” as they were
defined in 1947106 and more recently,107 we believe that the

106 In Webster’s New International Dictionary, Unabridged, 2nd ed., G. &
C. Merriam Company (1945), “contempt” is defined as “1. Act of
contemning, or despising; the feeling with which one regards that which
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guidelines enunciated herein in connection with determining
whether matter in a mark may be disparaging are equally
applicable to determining whether such matter brings
“persons, living or dead, institutions, beliefs, or
national symbols into contempt or disrepute.”
Legal Analysis
We preface our analysis herein by emphasizing the very
narrow nature of the question before us. We are
determining whether, under the Section 2(a) grounds
asserted, the service marks that are the subjects of the
six registrations in this proceeding shall remain
registered. We do not decide whether the subject marks may
be used or whether the word REDSKINS may be used as part of
the name of respondent’s professional football team.

is esteemed mean, vile, or worthless; disdain; scorn; as, familiarity
breeds contempt; 2. State of being despised; disgrace; shame …”; and
“disrepute” is defined as “vt. To bring into discredit; disesteem obs.;
n. loss or want of reputation; ill character; low estimation;
dishonor.” In the New Standard Dictionary of the English Language
(1947), Funk & Wagnalls Company, “contempt” is defined as “1. N.the act
of despising, or of viewing or considering and treating as mean, vile,
and worthless; hatred and scorn of what is deemed mean or vile;
disdain; scorn; 2. The state of being despised; disgrace; shame”; and
“disrepute” is defined as “lack or loss of reputation; ill repute; a
bad name or character; disesteem.”
107 In the Random House Dictionary of the English Language, 2nd ed.,
unabridged (1987), “contempt” is defined as “1. the feeling with which
a person regards anything considered mean, vile, or worthless; disdain;
scorn; 2. The state of being despised; dishonor; disgrace”; and
“disrepute” is defined as “n. bad repute; low regard; disfavor (usually
preceded by in or into): some literary theories have fallen into
disrepute; syn. Disfavor, disgrace.”
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In all of the reported cases discussed above, the
issue was whether the involved marks were scandalous or may
be disparaging because of the marks’ sexual explicitness or
innuendo, vulgarity, religious significance, or reference
to illicit activity. The case before us differs factually
from the aforementioned types of cases in that petitioners
contend, principally, that the word REDSKINS in the marks
in question is “a deeply offensive, humiliating, and
degrading racial slur” in connection with Native Americans.
The primary focus of the parties’ evidence and arguments is
petitioners’ allegation that the marks in the subject
registrations may disparage Native American persons. We
therefore begin our analysis with petitioners’ claim of
disparagement.
Disparagement
As stated previously herein, our analysis is
essentially a two-step process in which we ask, first:
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 services identified in the
registrations? Second, we ask: Is this meaning one that
may disparage Native Americans? As previously stated, both
questions are to be answered as of the dates of
registration of the marks herein. The oldest registration
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involved in this case is of the mark THE REDSKINS, in
stylized script, issued in 1967. Registrations of three
marks, THE WASHINGTON REDSKINS, WASHINGTON REDSKINS and a
design including a portrait of a Native American in
profile, and THE REDSKINS and a design including a portrait
of a Native American in profile and a spear, issued in
1974. The registration of the mark REDSKINS issued in
1978, and the registration of the mark REDSKINETTES issued
in 1990. Thus, while we have properly considered evidence
spanning a broad period of time, we focus our determination
of the issue of disparagement on the time periods, between
1967 and 1990, when the subject registrations issued.
As we must consider the question of disparagement in
connection with the services identified in the subject
registrations, we note that, although there are some minor
differences in the identifications of services among the
six registrations herein, each registration can be
described, generally, as pertaining to entertainment
services in connection with, or in the nature of,
professional football games.
1. Meaning of the Matter in Question.
While the marks in the majority of the subject
registrations include matter in addition to the word
“Redskins,” the principal focus of the evidence and
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arguments in this case is the word “redskin(s)” as it
appears in each mark. Therefore, we begin by looking at
the meaning of the word “redskin(s).” It is clear from the
dictionary definitions and other evidence of record herein,
and respondent does not dispute, that one denotative
definition of “redskin(s)” is a Native American person.108
The evidence establishes the use of the term “redskin(s)”
to refer to Native Americans since at least the mid-
nineteenth century. Both parties agree that since
approximately the 1930’s, and certainly by the 1960’s, the
occurrences in print or in other media of “redskin(s)” as a
term denoting Native Americans declined dramatically.
However, there is no question, based on this record, that
“redskin(s)” has remained a denotative term for Native
Americans throughout this century, in particular, from the
1960’s to the present.109
Considering the meaning of the term “redskin(s)” in
connection with the services identified in the challenged
registrations, respondent contends that the term

108 There is some indication in the record that “redskin(s)” also
identifies a type of potato, a brand of motorcycle, and perhaps, a type
of peanut, but there is no evidence in the record that any of these
possible meanings of the word “redskin(s)” would pertain to the word as
it is used in respondent’s marks in connection with the identified
services.
109 Evidence sufficient to warrant this conclusion includes, at a
minimum, dictionary definitions and articles that refer to the word
“redskin(s)” in connection with Native Americans.
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“Redskins,” considered in connection with professional
football games, denotes respondent’s football team and its
entertainment services. Respondent contends that, over its
six decades of use, respondent’s marks have “acquired a
strong and distinctive meaning identifying respondent’s
entertainment services … in the context of professional
football”110; that “Redskins” has become “denotative of the
professional football team”; and that, although “deriving
from the original, ethnic meaning of ‘redskin’,” the word
“’Redskins’ was perceived in 1967, and today, to be a
distinct word, entirely separate from ‘redskin’ and the
core, ethnic meaning embodied by that term.”
We agree that there is a substantial amount of
evidence in the record establishing that, since at least
the 1960’s and continuing to the present, the term
“Redskins” has been used widely in print and other media to
identify respondent’s professional football team and its
entertainment services. But our inquiry does not stop
here. Our precedent also requires us to consider the

110 As we stated in an interlocutory decision in this case, Harjo et. al.
v. Pro Football, Inc., supra at 1832, proof that respondent’s marks
have acquired secondary meaning does not establish a defense to
petitioners’ claims under Section 2(a). However, as respondent
expressly states, it “is not raising a traditional secondary meaning
defense addressing the issue of the protectability of Respondent’s
marks.” Rather, we view this contention in the context of respondent’s
arguments regarding the meaning of the word “redskin(s).”
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manner in which respondent’s marks appear and are used in
the marketplace. In this regard, while petitioners concede
that, from at least the 1960’s to the present, the word
“Redskins,” in the context of professional sports,
identifies respondent’s football team, petitioners contend,
essentially, that all professional football teams have
themes that are carried through in their logos, mascots,
nicknames, uniforms and various paraphernalia sold or used
in connection with their entertainment services.
Petitioners point to the Native American theme evident in
respondent’s logos and the imagery and themes used by
respondent in connection with its football team and games.
This imagery is also evident in the writings and activities
of the media and in the activities and writings of the
team’s fans. Petitioners contend that, in view of the
team’s Native American theme, one cannot separate the
connotation of “redskin(s)” as a reference to Native
Americans from the connotation of that word as it
identifies respondent’s football team and is used in
connection with respondent’s entertainment services.
Respondent correctly notes that the evidence herein
establishes that the vast majority of uses of the word
“redskin(s)” in the press and other media, since at least
the 1960’s, refer to respondent’s professional football
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team, rather than to Native Americans. At the same time,
we find that, in determining the meaning of the term
“redskin(s)” as it appears in respondent’s registered
marks, it would be both factually incomplete and
disingenuous to ignore the substantial evidence of Native
American imagery used by respondent, as well as by the
media and respondent’s fans,111 in connection with
respondent’s football team and its entertainment services.
Respondent admits that it “does not claim that its marks
bear no association with American Indians, nor that when
the team name was first adopted in 1933 it connoted
anything other than an ethnic group.” However, the
evidence simply does not support respondent’s further
contention that, in view of its use since 1933, the meaning
of the word “Redskins,” as part of its registered marks, is
as “a purely denotative term of reference for the
professional football team [with] no connotative meaning
whatsoever.” As used by respondent in connection with its
professional football team and entertainment services, the
word “Redskins,” as it appears in the marks herein, clearly
carries the allusion to Native Americans.

111 Respondent argues vociferously, and correctly, that it is not
responsible for the writings and actions of the media and respondent’s
fans. However, such evidence is relevant herein because it indicates
the public’s perceptions of the meanings attributable to, and
associations made in connection with, respondent’s service marks.
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Two of the registered marks include a portrait that
respondent acknowledges is a profile of a Native American
and a spear that we presume is a Native American spear. We
believe these two elements reinforce the allusion to Native
Americans that is present in the word “Redskins” in both
marks. Because of the manner of use of respondent’s marks
in connection with Native American themes and imagery, as
discussed herein, this same allusion is also present in the
marks that include the word “Washington,” to indicate the
full name of the football team, i.e., “Washington
Redskins.” Further, the registered mark, REDSKINETTES,
clearly consists of the root word “redskin” with the
diminutive or feminine “ettes” added as a suffix. Thus,
our conclusions regarding the word “Redskins” are equally
applicable to the mark REDSKINETTES.
We note that, in considering the meaning of the
matter in question, respondent misunderstands the issue
when it states, in reaction to newspaper headlines in the
record, such as “Skins Scalp Giants, 23-7,” that “no
Redskins fan truly believes that the players huddled on the
ten yard line are in fact tribal bounty hunters primed to
scalp their opponents upon scoring a touchdown.” Clearly,
the connection being made between the quoted headline and
respondent’s football team by the media, fans, and
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respondent itself is metaphorical rather than literal, as
acknowledged by respondent’s written statement (Cooke
Exhibit 10, see Cooke testimony, vol. II, pgs. 90-91) that
states, in part, “[o]ver the long history of the Washington
Redskins, the name has reflected positive attributes of the
American Indian such as dedication, courage and pride.”
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. This conclusion is equally applicable to the
time periods encompassing 1967, 1974, 1978 and 1990, as
well as to the present time.
2. Whether the Matter in Question May Disparage
Native Americans.
We turn, now, to the second part of our analysis, the
question of whether the matter in question may disparage
Native Americans. We have found that, as an element of
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respondent’s marks and as used in connection with
respondent’s services, the word “redskin(s)” retains its
meaning as a reference to Native Americans, as do the
graphics of the spear and the Native American portrait. In
view thereof, we consider the question of whether this
matter may disparage Native Americans by reference to the
perceptions of Native Americans. Our standard, as
enunciated herein, is whether, as of the relevant times, a
substantial composite of Native Americans in the United
States so perceive the subject matter in question. In
rendering our opinion, we consider the broad range of
evidence in this record as relevant to this question either
directly or by inference.
Several of petitioners’ witnesses expressed their
opinions that the use of Native American references or
imagery by non-Native Americans is, essentially, per se
disparaging to Native Americans or, at the very least, that
the use of Native American references or imagery in
connection with football112 is per se disparaging to Native
Americans. We find no support in the record for either of

112 Petitioners’ linguistics expert expressed his opinion that names of
football teams are chosen either to indicate geographic location or to
indicate ferocity, and, thus, the choice of “Redskins” as a team name
somehow establishes that the word carries negative connotations of
savagery. We find this reasoning to be circular and based primarily on
conjecture.
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these views. Consequently, we answer the question of
disparagement based on the facts in this case by looking to
the evidence regarding the views of the relevant group, the
connotations of the subject matter in question, the
relationship between that matter and the other elements
that make up the marks, and the manner in which the marks
appear and are used in the marketplace.
While petitioners’ have framed their allegations
broadly to include in their claim of disparagement all
matter in the subject marks that refers to Native
Americans, their arguments and extensive evidence pertain
almost entirely to the “Redskins” portion of respondent’s
marks. We note that there is very little evidence or
argument by either side regarding the other elements of
respondent’s marks that refer to Native Americans, namely,
the spear design and the portrait of a Native American in
profile. Both graphics are realistic in style. Respondent
acknowledges that the portrait depicts a Native American
individual, although it is unclear if it is a portrait of a
real individual. There is no evidence that these graphics
are used in a manner that may be perceived as disparaging,
or that a substantial composite of the Native American
population in the United States so perceives these graphics
as used in the subject marks in connection with the
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identified services.113 Thus, with respect to the spear
design and the portrait of a Native American in profile, as
these elements appear in two of the registered marks
herein, we find that petitioners have not established,
under Section 2(a), that this matter may disparage Native
Americans.
The remaining question in relation to disparagement is
whether the word “redskin(s)” may be disparaging of and to
Native Americans, as that word appears in the marks in the
subject registrations, in connection with the identified
services, and during the relevant time periods.
We find petitioners have clearly established, by at
least a preponderance of the evidence, that, as of the
dates the challenged registrations issued, the word
“redskin(s),” as it appears in respondent’s marks in those
registrations and as used in connection with the identified
services, may disparage Native Americans, as perceived by a
substantial composite of Native Americans. No single item

113 At least two of the petitioners testified that some types of feathers
have religious significance to some Native American tribes and, thus,
the secular use of such feathers is offensive. However, there is
insufficient evidence regarding this allegation to warrant a conclusion
that the mere representation of feathers in the marks herein may
disparage Native Americans. Additionally, several of the petitioners
testified that the portrait in two of the marks is a stereotypical
representation of a Native American. There is insufficient evidence
for us to conclude that this portrait is a stereotypical rendering of a
Native American or that it may disparage Native Americans. The views
of petitioners, alone, do not inform us of the views of a substantial
composite of Native Americans.
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of evidence or testimony alone brings us to this
conclusion; rather, we reach our conclusion based on the
cumulative effect of the entire record. We discuss below
some of the more significant evidence in the record. We
look, first, at the evidence establishing that, in general
and during the relevant time periods, the word “redskin(s)”
has been a term of disparagement of and to Native
Americans. Then we look at the evidence establishing that,
during the relevant time periods, the disparaging
connotation of “redskin(s)” as a term of reference for
Native Americans extends to the word “Redskin(s)” as it
appears in respondent’s subject marks and as used in
connection with respondent’s identified services. We have
considered the perceptions of both the general public and
Native Americans to be probative. For example, we have
found that the evidence supports the conclusion that a
substantial composite of the general public finds the word
“redskin(s)” to be a derogatory term of reference for
Native Americans. Thus, in the absence of evidence to the
contrary, it is reasonable to infer that a substantial
composite of Native Americans would similarly perceive the
word. This is consistent with the testimony of the
petitioners.
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We look, first, at the evidence often considered in
the decisional law concerning Section 2(a) scandalousness
and disparagement, namely, dictionary definitions. Both
petitioners and respondent have submitted excerpts defining
“redskin” from numerous well-established American
dictionary publishers from editions covering the time
period, variously, from 1966 through 1996. Across the time
period, the number of publishers including in their
dictionaries a usage label indicating that the word
“redskin” is disparaging is approximately equal, on this
record, to those who do not include any usage label. For
example, Random House publishers include the label “often
offensive” in dictionaries published from 1966 onward.
American Heritage publishers indicate that “redskin” is
“informal” in 1976 and 1981 editions and that it is
“offensive slang” in 1992 and 1996 editions. The World
Book Dictionary includes no usage label regarding “redskin”
in either its 1967 or 1980 edition and more recent editions
are not in evidence. From the testimony of the parties’
linguistics experts, it is clear that each entry in a
dictionary is intended to reflect the generally understood
meaning and usage of that word. Thus, from the fact that
usage labels appear in approximately half of the
dictionaries of record at any point in the time period
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covered, we can conclude that a not insignificant number of
Americans have understood “redskin(s)” to be an offensive
reference to Native Americans since at least 1966.114
Discussing the substantial body of historical
documents he reviewed in connection with his testimony
herein, Dr. Geoffrey Nunberg, petitioners’ linguistics
expert, concluded that the word “redskin(s)” first appeared
in writing as a reference to Native Americans in 1699 and
that, from 1699 to the present, the word “redskin(s),” used
as a term of reference for Native Americans, evokes
negative associations and is, thus, a term of
disparagement. Additional evidence of record that is
consistent with the opinions expressed Dr. Nunberg includes
excerpts from various articles and publications about
language. These writings include, often in a larger
discussion about bias in language, the assumption or
conclusion that the word “redskin(s)” as a term of

114 In view of the contradictory testimony of the parties’ linguistics
experts regarding the significance of a lack of usage label for a
dictionary entry, we cannot conclude that the lack of such labels in
the other excerpts of record establishes that the word “redskin(s)” was
not considered offensive during the relevant time period. Similarly,
the single dictionary excerpt which contains a separate entry for
“Redskins” defined as respondent’s football team, does not affect this
conclusion.
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reference for Native Americans is, and always has been, a
pejorative term.115
Petitioners made of record a substantial number of
writings, including, inter alia, excerpts from newspapers
and other publications, encyclopedias, and dictionaries,
evidencing the use of the word “redskin(s)” from the late
1800’s through the first half of this century. As agreed
by both parties’ linguistics experts, the vast majority of
newspaper headlines, newspaper articles, and excerpts from
books and periodicals from the late 1800’s and early
1900’s, which include the word “redskin(s)” as a reference
to Native Americans, clearly portray Native Americans in a
derogatory or otherwise negative manner.116 For example,
the newspaper articles in evidence from the late 1800’s

115 See, for example, petitioners’ exhibits entitled “Defining the
American Indian: A Case Study in the Language of Suppression,” by Haig
A. Bosmajian, in the book, Exploring Language, by Gary Goshgarian
(1983); by Irving Lewis Allen: Unkind Words – Ethnic Labeling from
Redskin to WASP (1990) and The Language of Ethnic Conflict – Social
Organization and Lexical Culture (1983); “I have Spoken: Indianisms in
Current English,” in English Language Notes (March 1992); and “Hostile
Language: Bias in Historical Writing about American Indian
Resistance,” by Robert H. Keller, Jr., in the Journal of American
Culture – Studies of a Civilization (Winter 1986).
116 One of respondent’s linguistics experts, Mr. Barnhart, challenges
this conclusion and points to a number of historical references to
Native Americans as “redskin(s)” that he concludes are neutral, if not
positive. We disagree with Mr. Barnhart’s conclusion and find the
specified references to Native Americans to be, in fact, negative.
However, even if we agreed with Mr. Barnhart’s conclusions about these
specified statements, we find these few references to be
inconsequential in comparison to the substantial number of undisputedly
negative historical references to Native Americans as “redskin(s)” in
newspapers and other writings in the record.
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reflect a view by Anglo-American society of Native
Americans as the savage enemy and the events reported are
armed conflicts.117 The entry for “North American Indian”
in the Encyclopedia Britannica (11th edition, 1910) clearly
refers to “the aboriginal people of North America” as
“primitive” people, and includes a detailed table
describing the degree to which individual tribes have been
“civilized” or remain “wild and indolent.” An excerpt from
a book entitled Making the Movies, by Ernest Dench
(MacMillan Company, 1919), includes a chapter entitled “The
Dangers of Employing Redskins as Movie Actors,” which
states: “The Red Indians … are paid a salary that keeps
them well provided with tobacco and their worshipped
‘firewater,’” and “It might be thought that this would
civilise (sic) them completely, but it has had a quite
reverse effect, for the work affords them an opportunity to
live their savage days over again ….”
Writings in evidence from the 1930’s through the late
1940’s, which include the word “redskin(s)” as a reference
to Native Americans, reflect a slightly less disdainful,
but still condescending, view of Native Americans. For

117 Interestingly, the word “Indian” is primarily used to refer to Native
Americans in the text of these newspaper articles, whereas the word
“redskin(s)” appears almost exclusively in the headlines. This would
appear to indicate a distinction between the connotations of the two
words, although neither party’s linguistics experts discuss this point.
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example, an article entitled “Redskin Revival – High
Birthrate Gives Congress a New Overproduction Headache,” in
Newsweek, February 20, 1939, while complaining about the
financial and administrative burden of “caring” for Native
Americans, recognizes that the inequities suffered by
Native Americans are a result of actions by the U.S.
government.
From the 1950’s forward, the evidence shows, and
neither party disputes, that there are minimal examples of
uses of the word “redskin(s)” as a reference to Native
Americans. Most such occurrences are in a small number of
writings about the character of the word itself, or in
writings where we find that “redskin(s)” is used in a
metaphorical sense juxtaposed with “white man” or
“paleface.” Both parties agree that, during this same time
period, the record reflects significant occurrences of the
word “redskin(s)” as a reference to respondent’s football
team.
We agree with respondent’s conclusion that the
pejorative nature of “redskin(s)” in the early historical
writings of record comes from the overall negative
viewpoints of the writings. However, this does not lead us
to the conclusion that, as respondent contends,
“redskin(s)” is an informal term for Native Americans that
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is neutral in connotation.118 Rather, we conclude from the
evidence of record that the word “redskin(s)” does not
appear during the second half of this century in written or
spoken language, formal or informal, as a synonym for
“Indian” or “Native American” because it is, and has been
since at least the 1960’s, perceived by the general
population, which includes Native Americans, as a
pejorative term for Native Americans.
We find the context provided by Dr. Hoxie’s historical
account, which respondent does not dispute, of the often
acrimonious Anglo-American/Native American relations from
the early Colonial period to the present119 to provide a
useful historical perspective from which to view the
writings, cartoons and other references to Native Americans
in evidence from the late 19th century and throughout this
century.
Finally, we note petitioners’ telephone survey, as
described herein, purporting to measure the views, at the
time of the survey in 1996, of the general population and,

118 We agree with petitioners that, although the evidence shows that the
word “Indian” became an acceptable term of reference for Native
Americans, we cannot conclude from this fact alone that the same is
true for the word “redskin(s).”
119 As Dr. Hoxie recounts, the policies of, first, the colonial
government and, then, the U.S. government towards Native Americans
reflect the general views of Anglo-Americans towards Native Americans
at each point in history.
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separately, of Native Americans towards the word “redskin”
as a reference to Native Americans. When read a list of
seven words referring to Native Americans, 46.2% of
participants in the general population sample (139 of 301
participants) and 36.6% of participants in the Native
American sample (131 of 358 participants) indicated that
they found the word “redskin” offensive as a reference to
Native Americans. We have discussed, supra, several of the
flaws in the survey that limit its probative value.
Additionally, the survey is of limited applicability to the
issues in this case as it sought to measure the
participants’ views only as of 1996, when the survey was
conducted, and its scope is limited to the connotation of
the word “redskin” as a term for Native Americans, without
any reference to respondent’s football team. However,
considering these limitations, we find that the percentage
of participants in each sample who responded positively,
i.e., stated they were offended by the word “redskin(s)”
for Native Americans, to be significant.120 While the
survey polls a relatively small sample and the positive

120 We note that in cases considering other trademark issues, such as
likelihood of confusion or secondary meaning, the courts have found
that, respectively, confusion or recognition by an “appreciable number
of customers” may be much less than a majority. See, McCarthy on
Trademarks and Unfair Competition, 4th ed. (West Group, 1998), Vol. 5,
Section 32.185.
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134
results reflect less than a majority of that sample, we
find these results supportive of the other evidence in the
record indicating the derogatory nature of the word
“redskin(s)” for the entire period from, at least, the mid-
1960’s to the present, to substantial composites of both
the general population and the Native American
population.121
The evidence we have discussed so far pertains,
generally, to the word “redskin(s)” as it refers to Native
Americans. From this evidence we have concluded, supra,
that the word “redskin(s)” has been considered by a
substantial composite of the general population, including
by inference Native Americans, a derogatory term of
reference for Native Americans during the time period of
relevance herein. We have also concluded, supra, that the
word “Redskins” in respondent’s marks in the challenged
registrations, identifies respondent’s football team and
carries the allusion to Native Americans inherent in the
original definition of the word. Evidence of respondent’s
use of the subject marks in the 1940’s and 1950’s shows a

121 Respondent has presented no evidence suggesting that, as a term
identifying Native Americans, the perception of the derogatory nature
of the word “redskin(s)” by any segment of the general population,
including Native Americans, changed significantly during this time
period. To the contrary, the evidence of record suggests that, as a
term identifying Native Americans, “redskin(s)” has been perceived
consistently, by both the general population and Native Americans as a
derogatory term since, at least, the 1960’s.
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disparaging portrayal of Native Americans in connection
with the word “Redskin(s)” that is more egregious than uses
of the subject marks in the record from approximately the
mid-1960’s to the present. However, such a finding does
not lead us to the conclusion that the subject marks, as
used in connection with the identified services during the
relevant time periods, are not still disparaging of and to
Native Americans under Section 2(a) of the Act. The
character of respondent’s allusions to Native Americans in
its use of the subject marks is consistent with the general
views towards Native Americans held by the society from
approximately the 1940’s forward.
In particular, the evidence herein shows a portrayal
in various media of Native Americans, unrelated to
respondent’s football team, as uncivilized and, often,
buffoon-like characters from, at least, the beginning of
this century through the middle to late 1950’s. As we move
through the 1960’s to the present, the evidence shows an
increasingly respectful portrayal of Native Americans.
This is reflected, also, in the decreased use of
“redskin(s),” as a term of reference for Native Americans,
as society in general became aware of, and sensitive to,
the disparaging nature of that word as so used.
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136
The evidence herein shows a parallel development of
respondent’s portrayal of Native Americans in connection
with its services. For example, various covers of
respondent’s game program guides and other promotional
efforts, including public relations stunts presenting
players in Native American headdresses, from the 1940’s
through the middle to late 1950’s show caricature-like
portrayals of Native Americans as, usually, either savage
aggressors or buffoons. Similarly, for the same time
period, the costumes and antics of the team, the Redskins
Marching Band, and the “Redskinettes” cheerleaders reflect
a less than respectful portrayal of Native Americans.122
During the late 1950’s and early 1960’s, the evidence
shows respondent’s game program covers with realistic
portraits of actual Native American individuals, reflecting
society’s increased respect for, and interest in, Native
American culture and history. During the 1960’s through to
the present, the evidence establishes that respondent has
largely substituted football imagery for Native American
imagery on its game program covers; that it has modified
the lyrics of its theme song, “Hail to the Redskins” and

122 See petitioners’ Exhibits Nos. 12 and 29. We note that the record
clearly establishes a relationship between respondent and both the
“Redskinettes” cheerleader organization and the Redskins Band
organization warranting attribution of their respective uses of the
subject marks and Native American imagery to respondent.
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137
modified its cheerleaders’ uniforms; and Mr. Cooke
testified that respondent has, for several years, had a
strict policy mandating a restrained and “tasteful”
portrayal of Native American imagery by its licensees. Of
course, the allusion to Native Americans in connection with
respondent’s team has continued unabated, for example, in
respondent’s name, its trademarks, and through the use of
Native American imagery such as the headdresses worn for
many years by the Redskins Band.
Both parties have submitted voluminous excerpts from
newspapers, including cartoons, headlines, editorials and
articles, from the 1940’s to the present, that refer to
respondent’s football team in the context of stories and
writings about the game of football. These excerpts show
that, despite respondent’s more restrained use of its
Native American imagery over time, the media has used
Native American imagery in connection with respondent’s
team, throughout this entire time period, in a manner that
often portrays Native Americans as either aggressive
savages or buffoons. For example, many headlines refer to
the “Redskins” team, players or managers “scalping”
opponents, seeking “revenge,” “on the warpath,” and holding
“pow wows”; or use pidgin English, such as “Big Chief Choo
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138
Choo – He Ponder.”123 Similarly, petitioners have submitted
evidence, both excerpts from newspapers and video excerpts
of games, showing respondent’s team’s fans dressed in
costumes and engaging in antics that clearly poke fun at
Native American culture and portray Native Americans as
savages and buffoons.124 As we have already stated, we
agree with respondent that it is not responsible for the
actions of the media or fans; however, the actions of the
media and fans are probative of the general public’s
perception of the word “redskin(s)” as it appears in
respondent’s marks herein. As such, this evidence
reinforces our conclusion that the word “redskin(s)”
retains its derogatory character as part of the subject
marks and as used in connection with respondent’s football
team.
Regarding the views of Native Americans in particular,
the record contains the testimony of petitioners themselves
stating that they have been seriously offended by
respondent’s use of the word “redskin(s)” as part of its
marks in connection with its identified services. The
record includes resolutions indicating a present objection
to the use of this word in respondent’s marks from the

123 See, for example, petitioners’ Exhibit 12, notice of reliance.
124 See, for example, petitioners’ Exhibit 13, notice of reliance.
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139
NCAI, which the record adequately establishes as a broad-
based organization of Native American tribes and
individuals; from the Oneida tribe; and from Unity 94, an
organization including Native Americans. Additionally,
petitioners have submitted a substantial number of news
articles, from various time periods, including from 1969-
1970, 1979, 1988-1989, and 1991-1992, reporting about
Native American objections, and activities in relation
thereto, to the word “Redskins” in respondent’s team’s
name. These articles establish the public’s exposure to
the existence of a controversy spanning a long period of
time. Also with respect to Native American protests, we
note, in particular, the testimony of Mr. Gross regarding
his 1972 letter, in his role as director of the Indian
Legal Information Development Service, to Mr. Williams,
then-owner of the Washington Redskins, urging that the name
of the team be changed; and regarding his 1972 meeting with
Mr. Williams, along with colleagues from several other
Native American organizations. Mr. Gross testified that
the individuals representing the Native American
organizations expressed their views to Mr. Williams that
the team name, “Washington Redskins,” is disparaging,
insulting and degrading to Native Americans. This evidence
reinforces the conclusion that a substantial composite of
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140
Native Americans have held these views for a significant
period of time which encompasses the relevant time periods
herein.
We are not convinced otherwise by respondent’s
contentions, argued in its brief, that Native Americans
support respondent’s use of the name “Washington Redskins”;
and that Native Americans regularly employ the term
“redskin” within their communities. Respondent has
presented no credible evidence in support of either
contention. In particular, respondent submitted, by notice
of reliance, inter alia, letters from fans in support of
the team name125; several letters and resolutions purported
to be from Native American tribal chiefs expressing their
support for respondent’s team name “Washington Redskins”;126

125 Respondent’s case includes no testimony by the authors of these
letters to establish any foundation for the letters. Thus, this
evidence has not been considered for the truth of the statements
contained therein. Even if we were to accept these letters for the
truth of the statements contained therein, which we do not, the vast
majority of letters are from non-Native Americans, some of whom report
the views of Native Americans with whom they are acquainted. The
contents of the letters are, themselves, hearsay, and the reports by
the letter-writers of third-party opinions are also hearsay.
126 Respondent’s case includes no testimony by the authors of these
letters and resolutions to establish any foundation for the letters and
resolutions. Further, the lack of testimony about the letters and
resolutions makes it impossible to determine the extent to which the
views contained therein speak for a group of Native Americans or just
for the authors, or what is the basis for the views expressed. Thus,
this evidence has not been considered for the truth of the statements
contained therein. Further, this small number of letters would not
change our determination herein even if we were to so consider this
evidence.
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141
and unidentified photographs purported to have been taken
on Indian reservations.127
Finally, we note that both parties’ briefs have made
and debated, and we have considered additional arguments,
the majority of which we find irrelevant and all of which
we find unnecessary to discuss.
Thus, we conclude that the evidence of record
establishes that, within the relevant time periods, the
derogatory connotation of the word “redskin(s)” in
connection with Native Americans extends to the term
“Redskins,” as used in respondent’s marks in connection
with the identified services, such that respondent’s marks
may be disparaging of Native Americans to a substantial
composite of this group of people.
Contempt or Disrepute
We incorporate by reference our preceding analysis,
discussion of the facts, and conclusions with respect to
disparagement. As we have indicated, supra, the guidelines

127 There is no testimony in the record establishing a foundation for
consideration of these photographs. Respondent’s counsel referred to
the photographs primarily during cross examination of petitioners’
witnesses, none of whom professed any knowledge regarding the subject
matter of the photographs. Any information about the photographs
herein consists merely of the statements of respondent’s counsel.
Respondent’s witness, Mr. Cooke, indicated during his testimony a
general awareness of other teams with the word “redskin(s)” as part of
their names; however, he presented no specific testimony about such
teams. Thus, we find no probative value in the photographs and
counsel’s statements in connection therewith, and little probative
value to Mr. Cooke’s vague statement.
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142
for determining whether matter in the marks in the
challenged registrations may be disparaging to Native
Americans are equally applicable to determining whether
such matter brings Native Americans into contempt or
disrepute. Thus, we conclude that the marks in each of the
challenged registrations consist of or comprise matter,
namely, the word or root word, “Redskin,” which may bring
Native Americans into contempt or disrepute.
Scandalousness
As we have indicated, supra, determining whether
matter is scandalous involves, essentially, a two-step
process. First, the Court or Board determines the likely
meaning of the matter in question and, second, whether, in
view of the likely meaning, the matter is scandalous to a
substantial composite of the general public. Regarding the
conclusions drawn with respect to disparagement, we
incorporate by reference our discussion and conclusion that
the meaning of the matter in question, namely, the word or
root word “Redskin,” as used by respondent in connection
with its professional football team and entertainment
services and as it appears in the marks herein, clearly
carries the allusion to Native Americans; and that this
allusion to Native Americans is reinforced by the design
elements in the registered marks incorporating the profile
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143
of a Native American and a Native American spear. However,
while we incorporate by reference the analysis of the facts
in the discussion, supra, of whether the matter in question
may disparage Native Americans, as well as the conclusions
reached therein regarding the design elements in the
subject marks,128 we reach a different conclusion with
respect to the alleged scandalousness of the “Redskin”
portions of the marks in respondent’s challenged
registrations.
In particular, we find that, based on the record in
this case, petitioners have not established by a
preponderance of the evidence that the marks in
respondent’s challenged registrations consist of or
comprise scandalous matter. We find that the evidence, as
discussed above, does establish that, during the relevant
time periods, a substantial composite of the general
population would find the word “redskin(s),” as it appears
in the marks herein in connection with the identified
services, to be a derogatory term of reference for Native
Americans. But the evidence does not establish that,
during the relevant time periods, the appearance of the

128 We found, supra, that petitioners have not established that these
designs are disparaging to Native Americans. Similarly, we find that
these design elements, as shown in the subject marks and as used in
connection with the identified services, are not scandalous as of any
of the relevant time periods.
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144
word “redskin(s),” in the marks herein and in connection
with the identified services, would be “shocking to the
sense of truth, decency, or propriety” to, or “giv[e]
offense to the conscience or moral feelings [of,] excit[e]
reprobation, [or] call out for condemnation” by, a
substantial composite of the general population. See, In
re Mavety Media Group Ltd., supra at 1925.
The record reflects the clear acceptance by a
substantial composite of the general population of the use
of the word “Redskins” as part of the name of respondent’s
football team and in connection with its entertainment
services, regardless of the derogatory nature of the word
vis-à-vis Native Americans. This evidence includes the
voluminous number of references, in both letters129 and news
articles, to respondent’s football team by a substantial
number of fans and the media over a long period of time
from, at least, the 1940’s to the present. Such continuous
renown in the sport of football and acceptance of the word
“Redskin(s)” in connection with respondent’s football team
is inconsistent with the sense of outrage by a substantial
composite of the general population that would be necessary

129 We consider the letters in this regard, not for their content, but
for the fact that they evidence knowledge by the writers about the team
and the use of the word “Redskins” in the team’s name.
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145
to find this word scandalous in the context of the subject
marks and the identified services.
Decision: As to each of the registrations subject to
the petition to cancel herein, the petition to cancel under
Section 2(a) of the Act is granted on the grounds that the
subject marks may disparage Native Americans and may bring
them into contempt or disrepute. As to each of the
registrations subject to the petition to cancel herein, the
petition to cancel under Section 2(a) of the Act is denied
on the ground that the subject marks consist of or comprise
scandalous matter. The registrations will be canceled in
due course.
J. D. Sams
R. F. Cissel
C. E. Walters
Administrative Trademark Judges,
Trademark Trial and Appeal Board