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… Read More…