Sorry about the pun — but then again, I’m not the PTO; then again, too, my attitude toward “scandalous and offensive” ethnic marks is different from that of lots of people, too. This one, in particular, has long rubbed me the wrong way.
Unsurprising: Great reliance on the issues raised by the dissenting TTAB judge regarding the serious evidentiary problems with the TTAB ruling. This is the core argument in our Federal Circuit brief on behalf of THE SLANTS. Also interesting:
- There’s a cause of action for a determination that Section 2(a) is void for vagueness, which we also argue in the SLANTS brief;
- The Redskins claim that the ruling, coming so late in the historical game in terms of the history of the REDSKINS trademark, did not merely err in terms of laches, but that due to the long use of the trademark by the team violates the Due Process Clause and the Takings Clause of the Constitution;
- Particularly interesting: It’s de novo review by the District Court in Virginia, not an appeal to the Federal Circuit. A party appealing from a TTAB ruling can, in most circumstances, do either of these.
Did the Redskins take the appeal to the District Court approach due to a perception that, based on its recent track record, the Circuit is inclined to approve 2(a) determinations of scandalous ‘n’ offensive as a rule? Probably not. It probably has more to do with the fact that, unlike in THE SLANTS case, the REDSKINS case is premised on an unusually rich factual record. The team’s argument is that, given every opportunity imaginable to prove its case, the plaintiffs Blackhorse failed. Remember that the burden on the particularly onerous one: Proving that the REDSKINS marks were disparaging to American Indians at the time they were registered, i.e., 1967-1990.
That’s a very different kettle of fish, however, from proving it by a preponderance of the evidence.
On reading the REDSKINS decision, I was not surprised to find that the nature of the “proof” relied on by the TTAB was, as it admitted in its opinion, highly “inferential.” Given the burden on the plaintiffs, and the profound interests, including bona fide commercial ones premised on a very reasonable presumption of the correctness of an agency’s repeated administrative decision, the idea that the TTAB would be swayed by so much inferential evidence is pretty surprising —
Suprising… unless, as we argue in our brief, the TTAB is simply programmed to do just that in Section 2(a) cases, whether they are ex parte (meaning, in this context, that the PTO makes the decision to protect an offended class that does not appear in the case) or, perhaps even more so, inter parte (where genuine offended persons step up and prove their offendedness). Unless, that is, the PTO is, institutionally, inclined — for reasons you may speculate about, but which I won’t — to be less concerned with things like evidence than with reaching the conclusion about offendedness whose “correctness” (of a sort) is already “known.”
In the SLANTS case, we argue that the TTAB paid an erroneously small amount of heed to just how little “evidence” was cut and pasted by the Examining Attorney to “prove” what “everybody knows”: That “a substantial composite of Asians” would deem THE SLANTS offensive for a band composed of Asian Americans. We aren’t arguing that whether or not they actually are, but that the PTO is obligated to follow administrative legal norms in proving that they are — a burden that is on the PTO.
So, from a tactical point of view, the Slants had no interest in giving the PTO another bite at the apple by filing in the District Court, though, and had no obligation to afford it one. The PTO had every opportunity to make its evidentiary record; to demand additional evidence from the applicant; and to make a serious attempt at addressing our objections to their evidentiary grounds for refusal and, we argue in our appeal, they hardly even tried.
The NFL’s evidentiary argument — that the TTAB made a decision that could not be supported by the evidence — is not so different from that of the Slants. But instead of pointing, as we do, to a surfeit of evidence, Football has the more delicate task (on the evidentiary point) of working through an extensive record of material deemed, or stipulated to be, admissible — yet demonstrating that the TTAB’s decision, still and all, amounted to nothing more than rubber-stamping a (sort of ) “correct” outcome, the substance of which everyone “already knows.”
Given the record on which they are proceeding, the Redskins need not be particularly concerned about the fact that on appeal to the District Court of a TTAB ruling, you’re instituting a whole new litigation matter, complete with the whole realm of disclosure and discovery tools. They’ve been through this; they’re happy to do more of it; and the idea of having a U.S. District Judge evaluate evidentiary matters of this level of complexity makes a lot of sense.
But I bet it kills them they can’t charge for box seats at this one!