Case: 1:14-cv-1043 As of: 06/01/2018 03:28 PM EDT 1 of 17
CLOSED,PATENT,TRADEMARK
U.S. District Court Eastern District of Virginia − (Alexandria) CIVIL DOCKET FOR CASE #: 1:14−cv−01043−LO−IDD

Pro−Football,Inc. v. Blackhorse et al Assigned to: District Judge Liam O'Grady Referred to: Magistrate Judge Ivan D. Davis Case in other court: 4th Circuit, 15−01874 Cause: 15:1071 Appeal of Decision of U.S. Patent & Trademark Office
Plaintiff

Date Filed: 08/14/2014 Date Terminated: 03/20/2018 Jury Demand: None Nature of Suit: 840 Trademark Jurisdiction: Federal Question

Pro−Football,Inc.

represented by Craig Crandall Reilly Law Office of Craig C. Reilly 111 Oronoco St Alexandria, VA 22314 703−549−5354 Fax: 703−549−2604 Email: craig.reilly@ccreillylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Amanda Blackhorse

represented by Jeffrey Joseph Lopez Drinker, Biddle & Reath LLP 1500 K Street, NW Suite 1100 Washington, DC 20005 (202) 842−8800 Email: jeffrey.lopez@dbr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Scott Kunz Drinker, Biddle & Reath LLP (DC) 1500 K Street NW Suite 1100 Washington, DC 20005 202−842−8800 Fax: 202−842−8465 Email: adam.kunz@dbr.com ATTORNEY TO BE NOTICED

Jennifer Tracey Criss Drinker, Biddle & Reath LLP (DC) 1500 K Street NW Suite 1100 Washington, DC 20005 202−842−8800 Fax: 202−842−8465 Email: jennifer.criss@dbr.com ATTORNEY TO BE NOTICED

Patrick Henry Thompson Becker Kellogg & Berry PC 5501 Backlick Rd Suite 220 Springfield, VA 22151 571−253−6611 Fax: 703−914−1210 Email: pthompson@beckerkelloggberry.com

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ATTORNEY TO BE NOTICED

Tore Thomas DeBella , II Drinker, Biddle & Reath LLP (DC) 1500 K Street NW Suite 1100 Washington, DC 20005 202−842−8800 Fax: 202−842−8465 Email: Tore.DeBella@dbr.com ATTORNEY TO BE NOTICED

Defendant Marcus Briggs−Cloud

represented by Jeffrey Joseph Lopez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Scott Kunz (See above for address) ATTORNEY TO BE NOTICED

Jennifer Tracey Criss (See above for address) ATTORNEY TO BE NOTICED

Patrick Henry Thompson (See above for address) ATTORNEY TO BE NOTICED

Tore Thomas DeBella , II (See above for address) ATTORNEY TO BE NOTICED

Defendant Phillip Gover

represented by Jeffrey Joseph Lopez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Scott Kunz (See above for address) ATTORNEY TO BE NOTICED

Jennifer Tracey Criss (See above for address) ATTORNEY TO BE NOTICED

Patrick Henry Thompson (See above for address) ATTORNEY TO BE NOTICED

Tore Thomas DeBella , II (See above for address) ATTORNEY TO BE NOTICED

Defendant Jillian Pappan

represented by Jeffrey Joseph Lopez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Scott Kunz

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(See above for address) ATTORNEY TO BE NOTICED

Jennifer Tracey Criss (See above for address) ATTORNEY TO BE NOTICED

Patrick Henry Thompson (See above for address) ATTORNEY TO BE NOTICED

Tore Thomas DeBella , II (See above for address) ATTORNEY TO BE NOTICED

Defendant Courtney Tsotigh

represented by Jeffrey Joseph Lopez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Scott Kunz (See above for address) ATTORNEY TO BE NOTICED

Jennifer Tracey Criss (See above for address) ATTORNEY TO BE NOTICED

Patrick Henry Thompson (See above for address) ATTORNEY TO BE NOTICED

Tore Thomas DeBella , II (See above for address) ATTORNEY TO BE NOTICED

Interested Party UNITED STATES OF AMERICA

represented by Dennis Carl Barghaan , Jr. United States Attorney's Office 2100 Jamieson Ave Alexandria, VA 22314 (703)299−3700 Email: dennis.barghaan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus ACLU

represented by Rebecca Kim Glenberg ACLU of Virginia 701 E. Franklin Street Suite 1412 Richmond, VA 23219 (804) 644−8080 Fax: (804) 649−2733 Email: rglenberg@aclu−il.org ATTORNEY TO BE NOTICED

Date Filed 08/14/2014

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 14683045721.), filed by Pro−Football,Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2,

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08/14/2014 08/14/2014 08/14/2014 08/14/2014 08/14/2014 08/18/2014 08/18/2014 08/18/2014 08/18/2014 08/19/2014 09/02/2014 09/03/2014 09/03/2014
09/03/2014 09/05/2014 09/09/2014
09/12/2014 09/22/2014

# 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(gwalk, ) (Additional attachment(s) added on 8/14/2014: # 7 Civil Cover Sheet, # 8 Receipt) (gwalk, ). (Entered: 08/14/2014)
2 Financial Interest Disclosure Statement (Local Rule 7.1) by Pro−Football,Inc.. (gwalk, ) (Entered: 08/14/2014)
Service will be via Notice of Lawsuit. (gwalk, ) (Entered: 08/14/2014)
3 Motion to appear Pro Hac Vice by Robert L. Raskopf and Certification of Local Counsel Craig C. Reilly Filing fee $ 75, receipt number 0422−4077794. by Pro−Football,Inc.. (Reilly, Craig) (Entered: 08/14/2014)
4 Motion to appear Pro Hac Vice by Claudia T. Bogdanos and Certification of Local Counsel Craig C. Reilly Filing fee $ 75, receipt number 0422−4077808. by Pro−Football,Inc.. (Reilly, Craig) (Entered: 08/14/2014)
5 Motion to appear Pro Hac Vice by Todd Anten and Certification of Local Counsel Craig C. Reilly Filing fee $ 75, receipt number 0422−4077814. by Pro−Football,Inc.. (Reilly, Craig) (Entered: 08/14/2014)
6 ORDER granting 5 Motion for Pro hac vice. Signed by Magistrate Judge Ivan D. Davis on 8/18/2014. (rban, ) (Entered: 08/18/2014)
7 ORDER granting 3 Motion for Pro hac vice. Signed by Magistrate Judge Ivan D. Davis on 8/18/2014. (rban, ) (Entered: 08/18/2014)
8 ORDER granting 4 Motion for Pro hac vice. Signed by Magistrate Judge Ivan D. Davis on 8/18/2014. (rban, ) (Entered: 08/18/2014)
9 Report on the filing or determination of an action (Redskins trademark). (gwalk, ) (Entered: 08/18/2014)
10 WAIVER OF SERVICE Returned Executed by All Defendants. (gwalk, ) (Entered: 08/20/2014)
11 NOTICE of Appearance by Adam Scott Kunz on behalf of Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh (Kunz, Adam) (Entered: 09/02/2014)
12 NOTICE of Appearance by Jeffrey Joseph Lopez on behalf of Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh (Lopez, Jeffrey) (Entered: 09/03/2014)
13 First Motion to appear Pro Hac Vice by Jesse Amnon Witten and Certification of Local Counsel Jeffrey Joseph Lopez Filing fee $ 75, receipt number 0422−4098838. by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Lopez, Jeffrey) (Entered: 09/03/2014)
14 NOTICE of Appearance by Tore Thomas DeBella, II on behalf of Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh (DeBella, Tore) (Entered: 09/03/2014)
15 NOTICE of Appearance by Jennifer Tracey Criss on behalf of Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh (Criss, Jennifer) (Entered: 09/05/2014)
16 SCHEDULING ORDER:Initial Pretrial Conference set for Wednesday 10/1/2014 at 11:00 AM in Alexandria Courtroom 400 before Magistrate Judge Ivan D. Davis. Final Pretrial Conference set for Thursday 1/15/2015 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. Discovery due by Friday 1/9/2015.. /s/ by District Judge Gerald Bruce Lee on 9/9/14. (Attachments: # 1 Magistrate Consent, # 2 Pretrial Notice)(tbul, ) (Entered: 09/09/2014)
17 NOTICE by Pro−Football,Inc. to the United States Pursuant to Rule 5.1 (Reilly, Craig) (Entered: 09/12/2014)
18 MOTION to Dismiss for Failure to State a Claim , MOTION to Dismiss for Lack of Jurisdiction by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian

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09/22/2014
09/22/2014 09/22/2014
09/22/2014
09/22/2014 09/24/2014 10/01/2014 10/01/2014
10/03/2014 10/03/2014 10/06/2014 10/09/2014
10/09/2014
10/10/2014 10/16/2014 10/31/2014

Pappan, Courtney Tsotigh. (Attachments: # 1 Proposed Order)(Kunz, Adam) (Entered: 09/22/2014)
19 Memorandum in Support re 18 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Kunz, Adam) (Entered: 09/22/2014)
20 Notice of Hearing Date re 18 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction , 19 Memorandum in Support, (Kunz, Adam) (Entered: 09/22/2014)
Set Deadlines as to 18 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction . Motion Hearing set for 10/17/2014 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. (clar, ) (Entered: 09/22/2014)
Reset Deadlines as to 18 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction . Motion Hearing set for 10/31/2014 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. (Per GBL chambers) (clar, ) (Entered: 09/22/2014)
21 ORDER granting 13 Motion for Pro hac vice. Signed by Magistrate Judge Ivan D. Davis on 9/22/2014. (rban, ) (Entered: 09/22/2014)
22 Joint Discovery Plan by Pro−Football,Inc..(Reilly, Craig) (Entered: 09/24/2014)
Initial Pretrial Conference Terminated. (jwil, ) (Entered: 10/01/2014)
23 Order Rule 16(b) Scheduling Order − Pursuant to the Rule 16(b) Conference it is ordered that I. All discovery s hall be concluded by January 9, 2015.2. Disclosures under Fed. R. Civ. P. 26(a)(l) and (2), notices of depositions,interrogatories, requests for documents and admissions, and answers thereto shall not be filed except on order of the court, or for use in a motion or at trial.3. The parties' Joint Discovery Plan is approved and shall control discovery to the extent of its application unless further modified by the court. Signed by Magistrate Judge Ivan D. Davis on 10/1/2014. (jwil, ) (Entered: 10/01/2014)
24 Consent MOTION for Protective Order by Pro−Football,Inc.. (Attachments: # 1 Proposed Order Stipulated Protective Order)(Reilly, Craig) (Entered: 10/03/2014)
25 Memorandum in Opposition re 18 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Pro−Football,Inc.. (Reilly, Craig) (Entered: 10/03/2014)
26 PROTECTIVE ORDER re Handling and Labeling of Confidential Information. See Order for more details. Signed by Magistrate Judge Ivan D. Davis on 10/6/2014. (rban, ) (Entered: 10/06/2014)
27 Rebuttal Brief re 18 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Kunz, Adam) (Entered: 10/09/2014)
28 Rebuttal Brief re 18 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Lopez, Jeffrey) (Entered: 10/09/2014)
29 Motion to appear Pro Hac Vice by Jessica Rose and Certification of Local Counsel Craig C. Reilly Filing fee $ 75, receipt number 0422−4148174. by Pro−Football,Inc.. (Reilly, Craig) (Entered: 10/10/2014)
30 ORDER granting 29 Motion for Pro hac vice. Signed by Magistrate Judge Ivan D. Davis on 10/16/14. (gwalk, ) (Entered: 10/16/2014)
31 Minute Entry for proceedings held before District Judge Gerald Bruce Lee:Motion Hearing held on 10/31/2014 re: 18 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Amanda Blackhorse, Courtney

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11/05/2014 11/07/2014 11/07/2014 11/10/2014 11/10/2014 11/12/2014
11/12/2014 11/21/2014
11/25/2014 12/09/2014 12/11/2014 12/15/2014 12/30/2014

Tsotigh, Jillian Pappan, Phillip Gover, Marcus Briggs−Cloud. Appearances: Craig Reilly, Robert Raskopf and Claudia Bogdanos for Pltff; Jeffrey Lopez, Jesse Witten, pro hac vice, and Adam Kunz for Deft. Heard and T.U.A. Order to follow. (Court Reporter R. Wilson.)(tbul, ) (Entered: 10/31/2014)
32 Consent MOTION FOR ADMISSION OF TTAB RECORD by Pro−Football,Inc.. (Attachments: # 1 Proposed Order)(Reilly, Craig) (Entered: 11/05/2014)
33 NOTICE by UNITED STATES OF AMERICA of Acknowledgement of Constitutional Challenge (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 11/07/2014)
34 Consent MOTION for Extension of Time by UNITED STATES OF AMERICA. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 11/07/2014)
35 NOTICE by UNITED STATES OF AMERICA of Acknowlegement of Constitutional Challenge (Corrected) (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 11/10/2014)
36 Consent MOTION for Extension of Time (Corrected) by UNITED STATES OF AMERICA. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 11/10/2014)
37 ORDER granting 32 Motion. ORDERED that the TTAB Record be assembled and transmitted to the Court forthwith and made part of the record of and admitted in these proceedings; and it is further ORDERED that Dkts. 46 and 183 of the TTAB Record be filed under seal with this Court and not be made available on the public docket of this action; and it is further ORDERED that Plaintiff shall pay any costs and expenses of the TTAB associated with assembly and transmission of the TTAB Record, subject to its right to seek to recover those costs and expenses as taxable costs in the event it is the prevailing party. Signed by District Judge Gerald Bruce Lee on 11/12/2014. (gwalk, ) (Entered: 11/12/2014)
38 ORDER granting 36 Motion for Extension of Time to File notice of intervention in this action on or before January 9,2015. Signed by District Judge Gerald Bruce Lee on 11/12/2014. (gwalk, ) (Entered: 11/12/2014)
39 TRANSCRIPT of proceedings held on October 31, 2014, before Judge Gerald Bruce Lee, Court Reporter/Transcriber Renecia Wilson, Telephone number,703−501−1580. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter/transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 12/22/2014. Redacted Transcript Deadline set for 1/21/2015. Release of Transcript Restriction set for 2/19/2015.(wilson, renecia) (Entered: 11/21/2014)
40 MEMORANDUM OPINION AND ORDER denying 18 Motion to Dismiss. Signed by District Judge Gerald Bruce Lee on 11/25/14.(See Order for details). (gwalk, ) (Entered: 11/25/2014)
41 Defendants' ANSWER to 1 Complaint, by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh.(Lopez, Jeffrey) (Entered: 12/09/2014)
42 Motion to appear Pro Hac Vice by Jennifer D. Bishop and Certification of Local Counsel Craig C. Reilly Filing fee $ 75, receipt number 0422−4230497. by Pro−Football,Inc.. (Reilly, Craig) (Entered: 12/11/2014)
43 ORDER granting 42 Motion for Pro hac vice. Signed by Magistrate Judge Ivan D. Davis on 12/15/2014. (dvanm, ) (Entered: 12/15/2014)
44 Joint MOTION for Extension or to Modify the Scheduling Order by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Attachments: # 1 Proposed Order)(Lopez, Jeffrey) (Entered: 12/30/2014)

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12/31/2014 01/09/2015 01/14/2015 01/15/2015
01/15/2015 01/15/2015 01/15/2015 01/22/2015 01/26/2015 02/23/2015 02/23/2015 02/23/2015 02/23/2015 02/23/2015
02/23/2015
02/23/2015

45 ORDER granting in part and denying in part 44 Motion to Modify the Scheduling Order. See order for details. Signed by Magistrate Judge Ivan D. Davis on 12/31/2014. (rban, ) (Entered: 01/02/2015)
46 NOTICE by UNITED STATES OF AMERICA of Intervention to Defend the Constitutionality of a Federal Statute (Barghaan, Dennis) (Entered: 01/09/2015)
47 Rule 26 Disclosure by All Defendants. (Attachments: # 1 Exhibit Defendants' Witness List, # 2 Exhibit Defendants' Deposition Designations, # 3 Exhibit Defendants' Exhibit List)(Lopez, Jeffrey) (Entered: 01/14/2015)
48 Minute Entry for proceedings held before District Judge Gerald Bruce Lee: Final Pretrial Conference held on 1/15/2015. Appearances: Counsel for Pltff, Defts, and gov't. Heard: Parties' suggestions for deciding the separate issues of this case. Court stated it will hear all motions at once. Bench Trial set for 6/22/2015 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. 6 trial days − Friday not included − running from 6/22 through 6/30/15. Summary Judgment / other motions Hearing set for TUESDAY 5/5/2015 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. Briefing schedule to be agreed, with the last of the briefs (the replies) to be due by 4/14/15. Court will consider videoconferencing for the Pltff witness that may not be available during the timeframe of the trial dates. Order to follow. (Court Reporter None.)(tbul, ) (Entered: 01/15/2015)
49 Rule 26 Disclosure by Pro−Football,Inc.. (Attachments: # 1 Appendix A − Preliminary Trial Exhibit List)(Reilly, Craig) (Entered: 01/15/2015)
50 NOTICE by Pro−Football,Inc. re 49 Rule 26 Disclosure Preliminary Deposition Designations (Reilly, Craig) (Entered: 01/15/2015)
51 Statement of Undisputed Facts by Pro−Football,Inc.. (Reilly, Craig) (Entered: 01/15/2015)
52 Consent MOTION Setting a Briefing Schedule and Modifying Pretrial Schedule re 45 Order on Motion for Extension of Time to File, 48 Pretrial Conference − Final, Set Hearings, Set/Reset Hearings,,,,,,,,, by Pro−Football,Inc.. (Attachments: # 1 Proposed Order)(Reilly, Craig) (Entered: 01/22/2015)
53 ORDER granting 52 Consent Motion Setting a Briefing Schedule and Modifying Pretrial Schedule. See Order for details. Signed by District Judge Gerald Bruce Lee on 1/26/2015. (rban, ) (Entered: 01/26/2015)
54 MOTION for Summary Judgment on Constitutional Claims by Pro−Football,Inc.. (Attachments: # 1 Proposed Order)(Reilly, Craig) (Entered: 02/23/2015)
55 Notice of Hearing Date set for May 5, 2015 re 54 MOTION for Summary Judgment on Constitutional Claims (Reilly, Craig) (Entered: 02/23/2015)
56 Memorandum in Support re 54 MOTION for Summary Judgment on Constitutional Claims REDACTED filed by Pro−Football,Inc.. (Reilly, Craig) (Entered: 02/23/2015)
57 Declaration re 56 Memorandum in Support, 54 MOTION for Summary Judgment on Constitutional Claims Declaration of Jeffrey A. Handelman by Pro−Football,Inc.. (Attachments: # 1 Exhibit 1)(Reilly, Craig) (Entered: 02/23/2015)
58 Declaration re 56 Memorandum in Support, 54 MOTION for Summary Judgment on Constitutional Claims Declaration of Todd Anten by Pro−Football,Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Reilly, Craig) (Entered: 02/23/2015)
59 NOTICE by Pro−Football,Inc. re 58 Declaration, Exhibits 16 − 34 (Attachments: # 1 Exhibit 16, # 2 Exhibit 17, # 3 Exhibit 18, # 4 Exhibit 19, # 5 Exhibit 20, # 6 Exhibit 21, # 7 Exhibit 22, # 8 Exhibit 23, # 9 Exhibit 24, # 10 Exhibit 25, # 11 Exhibit 26, # 12 Exhibit 27, # 13 Exhibit 28, # 14 Exhibit 29, # 15 Exhibit 30, # 16 Exhibit 31, # 17 Exhibit 32, # 18 Exhibit 33, # 19 Exhibit 34)(Reilly, Craig) (Entered: 02/23/2015)
60 NOTICE by Pro−Football,Inc. re 58 Declaration, EXHIBITS 35 − 55 (Attachments: # 1 Exhibit 36, # 2 Exhibit 37, # 3 Exhibit 38, # 4 Exhibit 39, # 5 Exhibit 40, # 6 Exhibit

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02/23/2015 02/23/2015 02/23/2015 02/24/2015 02/24/2015 02/24/2015 02/24/2015 02/24/2015 02/26/2015 02/26/2015 02/26/2015 02/26/2015
02/26/2015
02/26/2015

41 SEALED, # 7 Exhibit 42 SEALED, # 8 Exhibit 43 SEALED, # 9 Exhibit 44 SEALED, # 10 Exhibit 45 SEALED, # 11 Exhibit 46 SEALED, # 12 Exhibit 47 SEALED, # 13 Exhibit 48 SEALED, # 14 Exhibit 49, # 15 Exhibit 50, # 16 Exhibit 51, # 17 Exhibit 52, # 18 Exhibit 53, # 19 Exhibit 54, # 20 Exhibit 55)(Reilly, Craig) (Entered: 02/23/2015)
61 MOTION to Seal Exhibits 41−48 and file Redacted Brief by Pro−Football,Inc.. (Attachments: # 1 Proposed Order)(Reilly, Craig) (Entered: 02/23/2015)
62 Memorandum in Support re 61 MOTION to Seal Exhibits 41−48 and file Redacted Brief filed by Pro−Football,Inc.. (Reilly, Craig) (Entered: 02/23/2015)
63 Notice of Hearing Date set for May 5, 2015 re 61 MOTION to Seal Exhibits 41−48 and file Redacted Brief (Reilly, Craig) (Entered: 02/23/2015)
Set Deadlines as to 54 MOTION for Summary Judgment on Constitutional Claims. Motion Hearing set for 5/5/2015 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. (clar, ) (Entered: 02/24/2015)
64 NOTICE by Pro−Football,Inc. re 58 Declaration, Notice of Filing Omitted Exhibit 35 (Attachments: # 1 Exhibit 35)(Reilly, Craig) (Entered: 02/24/2015)
65 Sealed Document re 56 Memorandum in Support. (gwalk, ) (Entered: 02/26/2015)
66 Sealed Document re 58 Declaration,. (gwalk, ) (Entered: 02/26/2015)
67 Sealed Document re 60 NOTICE,,. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(gwalk, ) (Entered: 02/26/2015)
68 STIPULATION Regarding Authenticity of Documents by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Lopez, Jeffrey) (Entered: 02/26/2015)
69 MOTION for Summary Judgment on Counts 1, 2, and 7 of Complaint by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Attachments: # 1 Proposed Order)(Lopez, Jeffrey) (Entered: 02/26/2015)
70 Notice of Hearing Date for Defendants' Motion for Summary Judgment re 69 MOTION for Summary Judgment on Counts 1, 2, and 7 of Complaint (Lopez, Jeffrey) (Entered: 02/26/2015)
71 Memorandum in Support re 69 MOTION for Summary Judgment on Counts 1, 2, and 7 of Complaint filed by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Attachments: # 1 Exhibit A − Criss Declaration, # 2 Exhibit B − Apodaca Declaration, # 3 Exhibit C − Cook Declaration, # 4 Exhibit D − Gover Declaration, # 5 Exhibit E − Harjo Declaration)(Lopez, Jeffrey) (Entered: 02/26/2015)
72 NOTICE by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh re 71 Memorandum in Support, Exhibits 1−40 to Ex. A − Criss Decl. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40)(Lopez, Jeffrey) (Entered: 02/26/2015)
73 NOTICE by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh re 71 Memorandum in Support, Exhibits 41−140 to Ex. A − Criss Declaration (Attachments: # 1 Exhibit 41, # 2 Exhibit 42, # 3 Exhibit 43, # 4 Exhibit 44, # 5 Exhibit 45, # 6 Exhibit 46, # 7 Exhibit 47, # 8 Exhibit 48, # 9 Exhibit 49, # 10 Exhibit 50, # 11 Exhibit 51, # 12 Exhibit 52, # 13 Exhibit 53, # 14 Exhibit 54, # 15 Exhibit 55, # 16 Exhibit 56, # 17 Exhibit 57, # 18 Exhibit 58, # 19 Exhibit 59, # 20 Exhibit 60, # 21 Exhibit 61, # 22 Exhibit 62, # 23 Exhibit 63, # 24 Exhibit 64, # 25

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02/26/2015
02/26/2015 02/27/2015 02/27/2015

Exhibit 65, # 26 Exhibit 66, # 27 Exhibit 67, # 28 Exhibit 68, # 29 Exhibit 69, # 30 Exhibit 70, # 31 Exhibit 71, # 32 Exhibit 72, # 33 Exhibit 73, # 34 Exhibit 74, # 35 Exhibit 75, # 36 Exhibit 76, # 37 Exhibit 77, # 38 Exhibit 78, # 39 Exhibit 79, # 40 Exhibit 80, # 41 Exhibit 81, # 42 Exhibit 82, # 43 Exhibit 83, # 44 Exhibit 84, # 45 Exhibit 85, # 46 Exhibit 86, # 47 Exhibit 87, # 48 Exhibit 88, # 49 Exhibit 89, # 50 Exhibit 90, # 51 Exhibit 91, # 52 Exhibit 92, # 53 Exhibit 93, # 54 Exhibit 94, # 55 Exhibit 95, # 56 Exhibit 96, # 57 Exhibit 97, # 58 Exhibit 98, # 59 Exhibit 99, # 60 Exhibit 100, # 61 Exhibit 101, # 62 Exhibit 102, # 63 Exhibit 103, # 64 Exhibit 104, # 65 Exhibit 105, # 66 Exhibit 106, # 67 Exhibit 107, # 68 Exhibit 108, # 69 Exhibit 109, # 70 Exhibit 110, # 71 Exhibit 111, # 72 Exhibit 112, # 73 Exhibit 113, # 74 Exhibit 114, # 75 Exhibit 115, # 76 Exhibit 116, # 77 Exhibit 117, # 78 Exhibit 118, # 79 Exhibit 119, # 80 Exhibit 120, # 81 Exhibit 121, # 82 Exhibit 122, # 83 Exhibit 123, # 84 Exhibit 124, # 85 Exhibit 125, # 86 Exhibit 126, # 87 Exhibit 127, # 88 Exhibit 128, # 89 Exhibit 129, # 90 Exhibit 130, # 91 Exhibit 131, # 92 Exhibit 132, # 93 Exhibit 133, # 94 Exhibit 134, # 95 Exhibit 135, # 96 Exhibit 136, # 97 Exhibit 137, # 98 Exhibit 138, # 99 Exhibit 139, # 100 Exhibit 140)(Lopez, Jeffrey) (Entered: 02/26/2015)
74 NOTICE by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh re 71 Memorandum in Support, Exhibits 141−250 to Ex. A − Criss Declaration (Attachments: # 1 Exhibit 141, # 2 Exhibit 141, # 3 Exhibit 143, # 4 Exhibit 144, # 5 Exhibit 145, # 6 Exhibit 146, # 7 Exhibit 147, # 8 Exhibit 148, # 9 Exhibit 149, # 10 Exhibit 150, # 11 Exhibit 151, # 12 Exhibit 152, # 13 Exhibit 153, # 14 Exhibit 154, # 15 Exhibit 155, # 16 Exhibit 156, # 17 Exhibit 157, # 18 Exhibit 158, # 19 Exhibit 159, # 20 Exhibit 160, # 21 Exhibit 161, # 22 Exhibit 162, # 23 Exhibit 163, # 24 Exhibit 164, # 25 Exhibit 165, # 26 Exhibit 166, # 27 Exhibit 167, # 28 Exhibit 168, # 29 Exhibit 169, # 30 Exhibit 170, # 31 Exhibit 171, # 32 Exhibit 172, # 33 Exhibit 173, # 34 Exhibit 174, # 35 Exhibit 175, # 36 Exhibit 176, # 37 Exhibit 177, # 38 Exhibit 178, # 39 Exhibit 179, # 40 Exhibit 180, # 41 Exhibit 181, # 42 Exhibit 182, # 43 Exhibit 183, # 44 Exhibit 184, # 45 Exhibit 185, # 46 Exhibit 186, # 47 Exhibit 187, # 48 Exhibit 188, # 49 Exhibit 189, # 50 Exhibit 190, # 51 Exhibit 191, # 52 Exhibit 192, # 53 Exhibit 193, # 54 Exhibit 194, # 55 Exhibit 195, # 56 Exhibit 196, # 57 Exhibit 197, # 58 Exhibit 198, # 59 Exhibit 199, # 60 Exhibit 200, # 61 Exhibit 201, # 62 Exhibit 202, # 63 Exhibit 203, # 64 Exhibit 204, # 65 Exhibit 205, # 66 Exhibit 206, # 67 Exhibit 207, # 68 Exhibit 208, # 69 Exhibit 209, # 70 Exhibit 210, # 71 Exhibit 211, # 72 Exhibit 212, # 73 Exhibit 213, # 74 Exhibit 214, # 75 Exhibit 215, # 76 Exhibit 216, # 77 Exhibit 217, # 78 Exhibit 218, # 79 Exhibit 219, # 80 Exhibit 220, # 81 Exhibit 221, # 82 Exhibit 222, # 83 Exhibit 223, # 84 Exhibit 224, # 85 Exhibit 225, # 86 Exhibit 226, # 87 Exhibit 227, # 88 Exhibit 228, # 89 Exhibit 229, # 90 Exhibit 230, # 91 Exhibit 231, # 92 Exhibit 232, # 93 Exhibit 233, # 94 Exhibit 234, # 95 Exhibit 235, # 96 Exhibit 236, # 97 Exhibit 237, # 98 Exhibit 238, # 99 Exhibit 239, # 100 Exhibit 240, # 101 Exhibit 241, # 102 Exhibit 242, # 103 Exhibit 243, # 104 Exhibit 244, # 105 Exhibit 245, # 106 Exhibit 246, # 107 Exhibit 247, # 108 Exhibit 248, # 109 Exhibit 249, # 110 Exhibit 250)(Lopez, Jeffrey) (Entered: 02/26/2015)
75 NOTICE by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh re 71 Memorandum in Support, Exhibits 251−285 to Ex. A − Criss Declaration (Attachments: # 1 Exhibit 251, # 2 Exhibit 252, # 3 Exhibit 253, # 4 Exhibit 254, # 5 Exhibit 255, # 6 Exhibit 256, # 7 Exhibit 257, # 8 Exhibit 258, # 9 Exhibit 259, # 10 Exhibit 260, # 11 Exhibit 261, # 12 Exhibit 262, # 13 Exhibit 263, # 14 Exhibit 264, # 15 Exhibit 265, # 16 Exhibit 266, # 17 Exhibit 267, # 18 Exhibit 268, # 19 Exhibit 269, # 20 Exhibit 270, # 21 Exhibit 271, # 22 Exhibit 272, # 23 Exhibit 273, # 24 Exhibit 274, # 25 Exhibit 275, # 26 Exhibit 276, # 27 Exhibit 277, # 28 Exhibit 278, # 29 Exhibit 279, # 30 Exhibit 280, # 31 Exhibit 281, # 32 Exhibit 282, # 33 Exhibit 283, # 34 Exhibit 284, # 35 Exhibit 285)(Lopez, Jeffrey) (Entered: 02/26/2015)
Set Deadlines as to 61 MOTION to Seal Exhibits 41−48 and file Redacted Brief. Motion Hearing set for 5/5/2015 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (clar, ) (Entered: 02/27/2015)
MOTIONS REFERRED to Magistrate Judge: Davis. 61 MOTION to Seal Exhibits 41−48 and file Redacted Brief (clar, ) (Entered: 02/27/2015)

Case: 1:14-cv-1043 As of: 06/01/2018 03:28 PM EDT 10 of 17

02/27/2015 02/27/2015 03/05/2015 03/09/2015 03/09/2015 03/09/2015 03/18/2015 03/18/2015 03/18/2015 03/18/2015
03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015

Set Deadlines as to 69 MOTION for Summary Judgment on Counts 1, 2, and 7 of Complaint. Motion Hearing set for 5/5/2015 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. (clar, ) (Entered: 02/27/2015)
Reset Deadlines as to 61 MOTION to Seal Exhibits 41−48 and file Redacted Brief. Motion Hearing set for 3/27/2015 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (Per IDD chambers) (clar, ) (Entered: 02/27/2015)
76 MOTION for Leave to File by ACLU. (Attachments: # 1 Proposed Order Proposed Order, # 2 Exhibit ACLU Amicus Brief)(Glenberg, Rebecca) (Entered: 03/05/2015)
Notice of Correction re 76 MOTION for Leave to File .The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (gwalk, ) (Entered: 03/09/2015)
77 Opposition to 76 MOTION for Leave to File Brief of Amici Curiae filed by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Attachments: # 1 Proposed Order)(Lopez, Jeffrey) (Entered: 03/09/2015)
78 Waiver of Oral Argument by ACLU (Glenberg, Rebecca) (Entered: 03/09/2015)
Set/Reset Hearings: Bench Trial set for 7/27/2015at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. 6 trial days, 7/27 through 8/4/15, with no trial held on the Friday. (tbul, ) (Entered: 03/18/2015)
Set/Reset Deadlines as to motions hearing before Judge Lee in this case from May 5, 2015 to June 23, 2013, per chambers. (tbul, ) (Entered: 03/18/2015)
Reset Hearings: Summary Judgment Hearing reset from 5/5/15 to 6/23/2015 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee, per chambers. (tbul, ) (Entered: 03/18/2015)
Set/Reset Deadlines as to 54 MOTION for Summary Judgment on Constitutional Claims, 69 MOTION for Summary Judgment on Counts 1, 2, and 7 of Complaint. Motion Hearing set for 6/23/2015 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. (tbul, ) (Entered: 03/18/2015)
79 Cross MOTION for Summary Judgment on Claims I, II, and VII by Pro−Football,Inc.. (Attachments: # 1 Proposed Order)(Reilly, Craig) (Entered: 03/19/2015)
80 Declaration re 79 Cross MOTION for Summary Judgment on Claims I, II, and VII Declaration of Bruce Allen by Pro−Football,Inc.. (Attachments: # 1 Exhibit 1)(Reilly, Craig) (Entered: 03/19/2015)
81 Declaration re 79 Cross MOTION for Summary Judgment on Claims I, II, and VII Declaration of David Barnhart by Pro−Football,Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Reilly, Craig) (Entered: 03/19/2015)
82 Declaration re 79 Cross MOTION for Summary Judgment on Claims I, II, and VII Hart Blanton Declaration by Pro−Football,Inc.. (Attachments: # 1 Exhibit 1−A, # 2 Exhibit 1−B)(Reilly, Craig) (Entered: 03/19/2015)
83 Declaration re 79 Cross MOTION for Summary Judgment on Claims I, II, and VII Declaration of Ronald Butters by Pro−Football,Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Reilly, Craig) (Entered: 03/19/2015)
84 NOTICE by Pro−Football,Inc. re 83 Declaration Butters Exhibits 3−A − 3−D (Attachments: # 1 Exhibit 3−A, # 2 Exhibit 3−B, # 3 Exhibit 3−C, # 4 Exhibit 3−D)(Reilly, Craig) (Entered: 03/19/2015)
85 NOTICE by Pro−Football,Inc. re 83 Declaration Butters Exhibits 3−E − 3−H (Attachments: # 1 Exhibit 3−E, # 2 Exhibit 3−F, # 3 Exhibit 3−G, # 4 Exhibit 3−H)(Reilly, Craig) (Entered: 03/19/2015)
86 Declaration re 79 Cross MOTION for Summary Judgment on Claims I, II, and VII Declaration of Jacob Jacoby by Pro−Football,Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Reilly, Craig) (Entered: 03/19/2015)
87 Declaration re 79 Cross MOTION for Summary Judgment on Claims I, II, and VII Declaration of Jessica Rose by Pro−Football,Inc.. (Attachments: # 1 Exhibit 1, # 2

Case: 1:14-cv-1043 As of: 06/01/2018 03:28 PM EDT 11 of 17

03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015
03/19/2015

Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16)(Reilly, Craig) (Entered: 03/19/2015)
88 NOTICE by Pro−Football,Inc. re 87 Declaration, Rose Exhibits 17 − 32 (Attachments: # 1 Exhibit 17, # 2 Exhibit 18, # 3 Exhibit 19, # 4 Exhibit 20, # 5 Exhibit 21, # 6 Exhibit 22, # 7 Exhibit 23, # 8 Exhibit 24, # 9 Exhibit 25, # 10 Exhibit 26, # 11 Exhibit 27, # 12 Exhibit 28, # 13 Exhibit 29, # 14 Exhibit 30, # 15 Exhibit 31, # 16 Exhibit 32)(Reilly, Craig) (Entered: 03/19/2015)
89 NOTICE by Pro−Football,Inc. re 87 Declaration, Rose Exhibits 33 − 48 (Attachments: # 1 Exhibit 33, # 2 Exhibit 34, # 3 Exhibit 35, # 4 Exhibit 36, # 5 Exhibit 37, # 6 Exhibit 38, # 7 Exhibit 39, # 8 Exhibit 40, # 9 Exhibit 41, # 10 Exhibit 42, # 11 Exhibit 43, # 12 Exhibit 44, # 13 Exhibit 45, # 14 Exhibit 46, # 15 Exhibit 47, # 16 Exhibit 48)(Reilly, Craig) (Entered: 03/19/2015)
90 NOTICE by Pro−Football,Inc. re 87 Declaration, Rose Exhibits 49 −64 (Attachments: # 1 Exhibit 49, # 2 Exhibit 50, # 3 Exhibit 51, # 4 Exhibit 52, # 5 Exhibit 53, # 6 Exhibit 54, # 7 Exhibit 55, # 8 Exhibit 56, # 9 Exhibit 57, # 10 Exhibit 58, # 11 Exhibit 59, # 12 Exhibit 60, # 13 Exhibit 61, # 14 Exhibit 62, # 15 Exhibit 63, # 16 Exhibit 64)(Reilly, Craig) (Entered: 03/19/2015)
91 NOTICE by Pro−Football,Inc. re 87 Declaration, Rose Exhibits 65 − 80 (Attachments: # 1 Exhibit 65, # 2 Exhibit 66, # 3 Exhibit 67, # 4 Exhibit 68, # 5 Exhibit 69, # 6 Exhibit 70, # 7 Exhibit 71, # 8 Exhibit 72, # 9 Exhibit 73, # 10 Exhibit 74, # 11 Exhibit 75, # 12 Exhibit 76, # 13 Exhibit 77, # 14 Exhibit 78, # 15 Exhibit 79, # 16 Exhibit 80)(Reilly, Craig) (Entered: 03/19/2015)
92 NOTICE by Pro−Football,Inc. re 87 Declaration, Rose Exhibits 81 − 96 (Attachments: # 1 Exhibit 81, # 2 Exhibit 82, # 3 Exhibit 83, # 4 Exhibit 84, # 5 Exhibit 85, # 6 Exhibit 86, # 7 Exhibit 87, # 8 Exhibit 88, # 9 Exhibit 89, # 10 Exhibit 90, # 11 Exhibit 91, # 12 Exhibit 92, # 13 Exhibit 93, # 14 Exhibit 94, # 15 Exhibit 95, # 16 Exhibit 96)(Reilly, Craig) (Entered: 03/19/2015)
93 NOTICE by Pro−Football,Inc. re 87 Declaration, Rose Exhibits 97 − 112 (Attachments: # 1 Exhibit 97, # 2 Exhibit 98, # 3 Exhibit 99, # 4 Exhibit 100, # 5 Exhibit 101, # 6 Exhibit 102, # 7 Exhibit 103, # 8 Exhibit 104, # 9 Exhibit 105, # 10 Exhibit 106, # 11 Exhibit 107, # 12 Exhibit 108, # 13 Exhibit 109, # 14 Exhibit 110, # 15 Exhibit 111, # 16 Exhibit 112)(Reilly, Craig) (Entered: 03/19/2015)
94 NOTICE by Pro−Football,Inc. re 87 Declaration, Rose Exhibits 113 − 119 (Attachments: # 1 Exhibit 113, # 2 Exhibit 114, # 3 Exhibit 115, # 4 Exhibit 116, # 5 Exhibit 117, # 6 Exhibit 118, # 7 Exhibit 119)(Reilly, Craig) (Entered: 03/19/2015)
95 NOTICE by Pro−Football,Inc. re 87 Declaration, Rose Exhibits 120 − 121 (Attachments: # 1 Exhibit 120−A, # 2 Exhibit 120−B, # 3 Exhibit 121−A, # 4 Exhibit 121−B)(Reilly, Craig) (Entered: 03/19/2015)
96 NOTICE by Pro−Football,Inc. re 87 Declaration, Rose Exhibits 122 − 124 (Attachments: # 1 Exhibit 122, # 2 Exhibit 123, # 3 Exhibit 124)(Reilly, Craig) (Entered: 03/19/2015)
97 NOTICE by Pro−Football,Inc. re 87 Declaration, Rose Exhibits 125 − 128 (Attachments: # 1 Exhibit 125, # 2 Exhibit 126, # 3 Exhibit 127, # 4 Exhibit 128)(Reilly, Craig) (Entered: 03/19/2015)
98 NOTICE by Pro−Football,Inc. re 87 Declaration, Rose Exhibits 129 − 144 (Attachments: # 1 Exhibit 129, # 2 Exhibit 130, # 3 Exhibit 131, # 4 Exhibit 132 REDACTED, # 5 Exhibit 133, # 6 Exhibit 134, # 7 Exhibit 135, # 8 Exhibit 136, # 9 Exhibit 137, # 10 Exhibit 138, # 11 Exhibit 139, # 12 Exhibit 140, # 13 Exhibit 141, # 14 Exhibit 142, # 15 Exhibit 143, # 16 Exhibit 144)(Reilly, Craig) (Entered: 03/19/2015)
99 NOTICE by Pro−Football,Inc. re 87 Declaration, Rose Exhibits 145 − 157 (Attachments: # 1 Exhibit 145, # 2 Exhibit 146, # 3 Exhibit 147, # 4 Exhibit 148, # 5 Exhibit 149 BLANK, # 6 Exhibit 150 BLANK, # 7 Exhibit 151 BLANK, # 8 Exhibit 152, # 9 Exhibit 153, # 10 Exhibit 154, # 11 Exhibit 155, # 12 Exhibit 156, # 13

Case: 1:14-cv-1043 As of: 06/01/2018 03:28 PM EDT 12 of 17

03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/20/2015 03/20/2015 03/20/2015
03/20/2015 03/20/2015 03/23/2015
03/23/2015
03/23/2015 03/23/2015 03/23/2015 03/23/2015 03/23/2015 03/24/2015
03/26/2015

Exhibit 157)(Reilly, Craig) (Entered: 03/19/2015)
100 Memorandum in Support re 79 Cross MOTION for Summary Judgment on Claims I, II, and VII and Opposition to Defendants' Motion for Summary Judgment (Doc. 69) filed by Pro−Football,Inc.. (Reilly, Craig) (Entered: 03/19/2015)
101 Notice of Hearing Date set for June 23, 2015 re 79 Cross MOTION for Summary Judgment on Claims I, II, and VII (Reilly, Craig) (Entered: 03/19/2015)
102 MOTION to Seal by Pro−Football,Inc.. (Attachments: # 1 Proposed Order)(Reilly, Craig) (Entered: 03/19/2015)
103 Notice of Hearing Date set for March 27, 2015 re 102 MOTION to Seal (Reilly, Craig) (Entered: 03/19/2015)
Set Deadlines as to 79 Cross MOTION for Summary Judgment on Claims I, II, and VII. Motion Hearing set for 6/23/2015 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. (clar, ) (Entered: 03/20/2015)
Set Deadlines as to 102 MOTION to Seal . Motion Hearing set for 3/27/2015 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (clar, ) (Entered: 03/20/2015)
104 RESPONSE to Motion re 61 MOTION to Seal Exhibits 41−48 and file Redacted Brief, 102 MOTION to Seal filed by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Lopez, Jeffrey) (Entered: 03/20/2015)
112 Sealed Document re 98 NOTICE,. (dvanm, ) (Entered: 03/24/2015)
113 Sealed Document re 100 Memorandum in Support. (dvanm, ) (Entered: 03/24/2015)
105 Cross MOTION for Summary Judgment and Opposition To Plaintiff's Motion for Summary Judgment on Claims 3 Through 6 by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Attachments: # 1 Proposed Order)(Lopez, Jeffrey) (Entered: 03/23/2015)
106 Memorandum in Support re 105 Cross MOTION for Summary Judgment and Opposition To Plaintiff's Motion for Summary Judgment on Claims 3 Through 6 filed by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Attachments: # 1 Exhibit Declaration of Patrick Thompson, # 2 Exhibit Exhibits to Declaration of Patrick Thompson)(Lopez, Jeffrey) (Entered: 03/23/2015)
107 Notice of Hearing Date on June 23, 2015 re 105 Cross MOTION for Summary Judgment and Opposition To Plaintiff's Motion for Summary Judgment on Claims 3 Through 6 (Lopez, Jeffrey) (Entered: 03/23/2015)
108 MOTION for Summary Judgment by UNITED STATES OF AMERICA. (Barghaan, Dennis) (Entered: 03/23/2015)
109 Memorandum in Support re 108 MOTION for Summary Judgment filed by UNITED STATES OF AMERICA. (Barghaan, Dennis) (Entered: 03/23/2015)
110 Memorandum in Opposition re 54 MOTION for Summary Judgment on Constitutional Claims filed by UNITED STATES OF AMERICA. (Barghaan, Dennis) (Entered: 03/23/2015)
111 Notice of Hearing Date set for 6/23/2015 re 108 MOTION for Summary Judgment (Barghaan, Dennis) (Entered: 03/23/2015)
Set Deadlines as to 105 Cross MOTION for Summary Judgment and Opposition To Plaintiff's Motion for Summary Judgment on Claims 3 Through 6, 108 MOTION for Summary Judgment . Motion Hearing set for 6/23/2015 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. (clar, ) (Entered: 03/24/2015)
114 Consent MOTION for Leave to File Excess Pages and to Modify Briefing Order [Dkt. 53] by Pro−Football,Inc.. (Attachments: # 1 Proposed Order)(Reilly, Craig) (Entered: 03/26/2015)

Case: 1:14-cv-1043 As of: 06/01/2018 03:28 PM EDT 13 of 17

03/27/2015
03/30/2015 04/01/2015 04/03/2015
04/03/2015 04/03/2015
04/08/2015 04/10/2015 04/13/2015 04/13/2015 04/14/2015 04/14/2015 04/14/2015 04/14/2015 04/14/2015
04/14/2015

115 Minute Entry for proceedings held before Magistrate Judge Ivan D. Davis:Motion Hearing held on 3/27/2015 re 61 MOTION to Seal Exhibits 41−48 and file Redacted Brief filed by Pro−Football,Inc., 102 MOTION to Seal filed by Pro−Football,Inc. Appearances of counsel. Motions argued and Granted. Order to follow. (Tape #ftr.)(jwil, ) (Entered: 03/27/2015)
116 ORDERED that Plaintiffs Motions for Leave to File Under Seal 61 , 102 are GRANTED. Signed by Magistrate Judge Ivan D. Davis on 03/30/2015. (jwil, ) (Entered: 03/30/2015)
117 ORDER granting 114 Motion for Leave to File Excess Pages. Signed by District Judge Gerald Bruce Lee on 4/1/15. (gwalk, ) (Entered: 04/01/2015)
118 Rebuttal Brief re 79 Cross MOTION for Summary Judgment on Claims I, II, and VII filed by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Attachments: # 1 Exhibit 2nd Declaration of Jennifer T. Criss, # 2 Exhibit Exhibits to 2nd Declaration of Jennifer T, Criss)(Lopez, Jeffrey) (Entered: 04/03/2015)
119 Rebuttal Brief re 54 MOTION for Summary Judgment on Constitutional Claims and Opposition to Motions Doc. 105 and 108 filed by Pro−Football,Inc.. (Reilly, Craig) (Entered: 04/03/2015)
120 Declaration re 119 Rebuttal Brief by Pro−Football,Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(Reilly, Craig) (Entered: 04/03/2015)
121 Consent MOTION for Extension of Time to File Rule 26(a)(3) Submissions by Pro−Football,Inc.. (Attachments: # 1 Proposed Order)(Reilly, Craig) (Entered: 04/08/2015)
122 Consent MOTION for Leave to File a DVD (Doc. 87−2) as an Exhibit by Pro−Football,Inc.. (Attachments: # 1 Proposed Order)(Reilly, Craig) (Entered: 04/10/2015)
123 ORDER granting 122 Motion for Leave to File DVD. Signed by District Judge Gerald Bruce Lee on 04/13/2015. (dvanm, ) (Entered: 04/14/2015)
125 ORDER granting 121 Consent MOTION for Extension of Time to File Rule 26(a)(3) Submissions. Signed by District Judge Gerald Bruce Lee on 4/13/2015. (rban, ) (Entered: 04/14/2015)
124 DVD received and filed per Order of 4/13/2015. (1 small manila envelope)(dvanm, ) (Entered: 04/14/2015)
126 Rebuttal Brief re 105 Cross MOTION for Summary Judgment and Opposition To Plaintiff's Motion for Summary Judgment on Claims 3 Through 6 filed by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Lopez, Jeffrey) (Entered: 04/14/2015)
127 REPLY to Response to Motion re 108 MOTION for Summary Judgment filed by UNITED STATES OF AMERICA. (Barghaan, Dennis) (Entered: 04/14/2015)
128 REPLY to Response to Motion re 79 Cross MOTION for Summary Judgment on Claims I, II, and VII REDACTED VERSION filed by Pro−Football,Inc.. (Reilly, Craig) (Entered: 04/14/2015)
129 Declaration re 128 Reply to Response to Motion by Pro−Football,Inc.. (Attachments: # 1 Exhibit 158 SEALED, # 2 Exhibit 159, # 3 Exhibit 160, # 4 Exhibit 161, # 5 Exhibit 162, # 6 Exhibit 163, # 7 Exhibit 164, # 8 Exhibit 165, # 9 Exhibit 166, # 10 Exhibit 167, # 11 Exhibit 168, # 12 Exhibit 169, # 13 Exhibit 170, # 14 Exhibit 171, # 15 Exhibit 172, # 16 Exhibit 173)(Reilly, Craig) (Entered: 04/14/2015)
130 MOTION to Seal Exhibit 158 (Doc. 129−1) and to File Redacted Reply Brief (Doc. 128) by Pro−Football,Inc.. (Attachments: # 1 Proposed Order)(Reilly, Craig) (Entered: 04/14/2015)

Case: 1:14-cv-1043 As of: 06/01/2018 03:28 PM EDT 14 of 17

04/14/2015 04/15/2015
04/15/2015 04/15/2015 04/15/2015 04/21/2015
04/22/2015 04/24/2015
04/24/2015 04/27/2015
04/29/2015 04/29/2015 04/29/2015 04/30/2015 05/01/2015 05/04/2015 05/07/2015

131 Notice of Hearing Date set for April 24, 2015 re 130 MOTION to Seal Exhibit 158 (Doc. 129−1) and to File Redacted Reply Brief (Doc. 128) (Reilly, Craig) (Entered: 04/14/2015)
Set Deadlines as to 130 MOTION to Seal Exhibit 158 (Doc. 129−1) and to File Redacted Reply Brief (Doc. 128). Motion Hearing set for 4/24/2015 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (clar, ) (Entered: 04/15/2015)
MOTIONS REFERRED to Magistrate Judge: Davis. 130 MOTION to Seal Exhibit 158 (Doc. 129−1) and to File Redacted Reply Brief (Doc. 128) (clar, ) (Entered: 04/15/2015)
132 Document re 128 Reply to Response to Motion. (dvanm, ) Modified on 4/27/2015 to Unseal document per order of 4/27/2015 138 (rban, ). (Entered: 04/15/2015)
133 Document re 129 Declaration. (dvanm, ) Modified on 4/27/2015 to Unseal document per order of 4/27/2015 138 (rban, ). (Entered: 04/15/2015)
134 RESPONSE to Motion re 130 MOTION to Seal Exhibit 158 (Doc. 129−1) and to File Redacted Reply Brief (Doc. 128) filed by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Lopez, Jeffrey) (Entered: 04/21/2015)
135 NOTICE of Appearance by Patrick Henry Thompson on behalf of Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh (Thompson, Patrick) (Entered: 04/22/2015)
136 Minute Entry for proceedings held before Magistrate Judge Ivan D. Davis:Motion Hearing held on 4/24/2015 re 130 MOTION to Seal Exhibit 158 (Doc. 129−1) and to File Redacted Reply Brief (Doc. 128) filed by Pro−Football,Inc. Appearance of counsel. Motion is Denied as Moot . Order to follow. (Tape #ftr.)(jwil, ) Modified on 4/27/2015 (jwil, ). (Entered: 04/24/2015)
137 Withdrawal of Motion by Pro−Football,Inc. re 130 MOTION to Seal Exhibit 158 (Doc. 129−1) and to File Redacted Reply Brief (Doc. 128) (Attachments: # 1 Proposed Order)(Reilly, Craig) (Entered: 04/24/2015)
138 ORDER, for the reasons stated from the bench, withdrawing 130 Motion to Seal. The Clerk is directed to Unseal filings doc. 132 and 133 and place them to the public judicial record. Signed by Magistrate Judge Ivan D. Davis on 4/27/2015. (rban, ) (Entered: 04/27/2015)
139 NOTICE by UNITED STATES OF AMERICA of Decision (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Barghaan, Dennis) (Entered: 04/29/2015)
140 MOTION to Exclude by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Attachments: # 1 Proposed Order)(Lopez, Jeffrey) (Entered: 04/29/2015)
141 Memorandum in Support re 140 MOTION to Exclude filed by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lopez, Jeffrey) (Entered: 04/29/2015)
Notice of Correction re 140 MOTION to Exclude The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (dvanm, ) (Entered: 04/30/2015)
142 Notice of Hearing Date before Hon. Gerald Bruce Lee set for June 23, 2015 re 140 MOTION to Exclude (Lopez, Jeffrey) (Entered: 05/01/2015)
Set Deadlines as to 140 MOTION to Exclude . Motion Hearing set for 6/23/2015 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. (clar, ) (Entered: 05/04/2015)
143 Motion to appear Pro Hac Vice by Laurentia C. McKessar and Certification of Local Counsel Craig C. Reilly Filing fee $ 75, receipt number 0422−4442853. by Pro−Football,Inc.. (Reilly, Craig) (Entered: 05/07/2015)

Case: 1:14-cv-1043 As of: 06/01/2018 03:28 PM EDT 15 of 17

05/12/2015 05/13/2015 05/20/2015 05/21/2015 06/19/2015 06/22/2015 06/22/2015 06/23/2015 06/23/2015
06/24/2015 06/25/2015 06/26/2015
06/29/2015

144 ORDER granting 143 Motion for Pro hac vice. Signed by Magistrate Judge Ivan D. Davis on 5/12/15. (gwalk, ) (Entered: 05/12/2015)
145 Memorandum in Opposition re 140 MOTION to Exclude filed by Pro−Football,Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Reilly, Craig) (Entered: 05/13/2015)
146 NOTICE by Pro−Football,Inc. Notice of Decision (Attachments: # 1 Exhibit 1)(Reilly, Craig) (Entered: 05/20/2015)
147 Rebuttal Brief re 140 MOTION to Exclude Undisclosed Exhibits filed by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh. (Lopez, Jeffrey) (Entered: 05/21/2015)
148 NOTICE by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh Notice of Decision (Attachments: # 1 Exhibit Supreme Court Opinion in Walker v. Texas Div., Sons of Confederate Veterans, Inc.)(Thompson, Patrick) (Entered: 06/19/2015)
Notice of Correction re: 148 NOTICE. The signature block on the document does not match the user's login. The filing user has been notified and has been asked to either refile the document or to have the attorney whose signature block appears on the document refile the document. (pmil, ) (Entered: 06/22/2015)
149 NOTICE by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh (Attachments: # 1 Exhibit 1)(Lopez, Jeffrey) (Entered: 06/22/2015)
150 Motion to appear Pro Hac Vice by Crystal Nwareri and Certification of Local Counsel Craig C. Reilly Filing fee $ 75, receipt number 0422−4509508. by Pro−Football,Inc.. (Reilly, Craig) (Entered: 06/23/2015)
151 Minute Entry for proceedings held before District Judge Gerald Bruce Lee:Motion Hearing held on 6/23/2015 re: 108 MOTION for Summary Judgment filed by UNITED STATES OF AMERICA, 79 Cross MOTION for Summary Judgment on Claims I, II, and VII filed by Pro−Football,Inc., 69 MOTION for Summary Judgment on Counts 1, 2, and 7 of Complaint filed by Defendants, 54 MOTION for Summary Judgment on Constitutional Claims filed by Pro−Football,Inc., 105 Cross MOTION for Summary Judgment on Claims 3 Through 6 filed by Defendants all pending. Court heard argument on Constitutionality of Lanham Act (2 questions) and Section 2(a) "May Disparage" claim (2 questions), and took the matters under advisement. Appearances: Craig Reilly, Robert Raskopf, Todd Anten, Laurentia McKessar and Claudia Bogdanos for Pltff; Jeffrey Lopez, Jesse Witten and Patrick Thompson for Deft; Dennis Barghann, Eric Soskin and Christine Hieber for gov't. (Court Reporter R. Wilson.)(tbul, ) (Entered: 06/23/2015)
152 ORDER granting 150 Motion for Pro hac vice. Signed by Magistrate Judge Ivan D. Davis on 06/24/15. (pmil, ) (Entered: 06/24/2015)
153 NOTICE by Amanda Blackhorse, Marcus Briggs−Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh of Authority (Attachments: # 1 Exhibit INTA Amicus Brief)(Lopez, Jeffrey) (Entered: 06/25/2015)
154 TRANSCRIPT of proceedings held on June 23, 2015, before Judge Gerald Bruce Lee, Court Reporter/Transcriber Renecia Wilson, Telephone number,703−501−1580. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter/transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 7/27/2015. Redacted Transcript Deadline set for 8/26/2015. Release of Transcript Restriction set for 9/24/2015.(wilson, renecia) (Entered: 06/26/2015)
156 ORDERED that the trial is CONTINUED, and this matter is hereby taken off the trial docket for 7/27/2015; that all due dates for pretrial filings are SUSPENDED pending further order of the Court; that the parties shall appear for a STATUS CONFERENCE

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06/30/2015 07/01/2015 07/03/2015 07/07/2015 07/08/2015 07/08/2015 07/08/2015
07/08/2015 07/08/2015 08/04/2015 08/06/2015 08/06/2015 08/14/2015 08/24/2015 08/25/2015 11/13/2017

on 7/27/2015 at 10:00 a.m. Except as modified herein, the prior orders of the Court shall remain in full force and effect. Signed by District Judge Gerald Bruce Lee on 6/29/2015. (rban, ) (Entered: 07/01/2015)
155 Objection to 153 NOTICE filed by Pro−Football,Inc.. (Reilly, Craig) (Entered: 06/30/2015)
Set Hearing: Status Conference set for 7/27/2015 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. (rban, ) (Entered: 07/01/2015)
157 Consent MOTION to Withdraw as Attorney to Withdraw Pro Hac Vice Appearance of Jennifer D. Bishop by Pro−Football,Inc.. (Attachments: # 1 Proposed Order)(Reilly, Craig) (Entered: 07/03/2015)
158 ORDER granting 157 Motion to Withdraw Pro Hac Vice appearance. Signed by District Judge Gerald Bruce Lee on 7/7/2015. (dvanm, ) (Entered: 07/08/2015)
159 ORDER denying 76 Motion for Leave to File of Amicus Curiae. Signed by District Judge Gerald Bruce Lee on 7/7/2015. (dvanm, ) (Entered: 07/08/2015)
160 ORDER denying 140 Motion to Exclude. Signed by District Judge Gerald Bruce Lee on 7/8/2015. (dvanm, ) (Entered: 07/08/2015)
161 MEMORANDUM OPINION AND ORDER − It is hereby ORDERED that PFI's Motion for Summary Judgment on Constitutional Claims (Doc.54) and Cross−Motion for Summary Judgment on Claims I, II, and VII (Doc. 79) are DENIED; it is further ORDERED that Blackhorse Defendants' Cross−Motion for Summary Judgment on Claims Ill−VI (Doc. 105), the United States of America's Motion for Summary Judgment on Constitutional Claims (Doc. 108), and Blackhorse Defendants' Motion for Summary Judgment on Counts I, II, and VII of Complaint (Doc. 69) are GRANTED; it is further ORDERED that the TTAB's ruling in Blackhorse v. Pro−Football, Inc., 111 U.S.P.Q.2d 1080, 2014 WL 2757516 (T.T.A.B. 2014), is AFFIRMED; and it is further ORDERED that the United States Patent and Trademark Office is DIRECTED to schedule the cancellation of the registrations for the following six marks: Registration No.0836122, Registration No. 0978824, Registration No. 098666, Registration No. 0987127, Registration No. 1085092, and Registration No. 1606810. Signed by District Judge Gerald Bruce Lee on 7/8/2015. (dvanm, ) (Main Document 161 replaced on 7/10/2015) (gwalk, ). (Entered: 07/08/2015)
162 FINAL JUDGMENT. Signed by District Judge Gerald Bruce Lee on 7/8/2015. (dvanm, ) (Entered: 07/08/2015)
163 Final Report on the filing or determination of an action.(c/s to Patent and Trademark Office)(gwalk, ) (Entered: 07/08/2015)
164 NOTICE OF APPEAL as to 161 Order,,,, 162 Judgment by Pro−Football,Inc.. Filing fee $ 505, receipt number 0422−4576279. (Reilly, Craig) (Entered: 08/04/2015)
165 Transmission of Notice of Appeal to US Court of Appeals re 164 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (dvanm, ) (Entered: 08/06/2015)
166 USCA Case Number 15−1874 4th Circuit, Case Manager J. Neal for 164 Notice of Appeal filed by Pro−Football,Inc.. (gwalk, ) (Entered: 08/06/2015)
167 Administrative Record TTAB Boxes 1 through 5 of 5, previously delivered to Judge Lee's chambers. (tbul, ) (tbul, ). (Entered: 08/14/2015)
168 Administrative Record Part II, TTAB Supplement sent by USPTO to Judge Lee (13 DVDs in a USPTO envelope with a cover letter), filed with the 5 TTAB boxes (tbul, ) (Entered: 08/24/2015)
169 UNDER SEAL Documents "Dkts. 46 and 183 of the TTAB Record," 16 of this case, removed by Craig Reilly to be separately filed under seal in accordance with Judge Lee's 37 November 12, 2014 Order. (tbul, ) (Entered: 08/25/2015)
170 ORDER of USCA as to 164 Notice of Appeal filed by Pro−Football,Inc. The court grants the motion to withdraw from further representation on appeal. (lcre, ) (Entered:

Case: 1:14-cv-1043 As of: 06/01/2018 03:28 PM EDT 17 of 17

01/18/2018 01/18/2018 01/18/2018 02/09/2018 02/12/2018
02/14/2018 03/12/2018 03/20/2018

11/13/2017)
171 Unpublished Opinion of USCA re 164 Notice of Appeal− Vacated and Remanded. (lcre, ) (Entered: 01/18/2018)
172 USCA JUDGMENT as to 164 Notice of Appeal filed by Pro−Football,Inc. In accordance with the decision of this court, the judgment of the district court is vacated. This case is remanded to the district court for further proceedings consistent with the court's decision. (lcre, ) (Entered: 01/18/2018)
Case Reassigned to District Judge Liam O'Grady. District Judge Gerald Bruce Lee no longer assigned to the case. (rban, ) (Entered: 01/18/2018)
173 Consent MOTION for Entry of Final Judgment by Pro−Football,Inc.. (Attachments: # 1 Proposed Order Proposed Final Judgment)(Reilly, Craig) Modified to return gavel on 2/15/2018 (dvanm, ). (Entered: 02/09/2018)
174 ORDER − JUDGMENT be, and hereby is, ENTERED in favor of PFI; and it is furtherORDERED that the June 18, 2014 decision of the Trademark Trial and Appeal Board("TTAB") scheduling the cancellation of Trademark Registration Nos. 1,606,810; 1,085,092; 987.127: 986.668; 978,824; and 836,122 is hereby VACATED; and it is further ORDERED that this matter is remanded to the United States Patent and Trademark Office for further proceedings. Signed by District Judge Liam O'Grady on 02/12/2018. (dvanm, ) (Entered: 02/14/2018)
175 ORDER − The final judgment in this case was entered prematurely, specifically prior to the issuance of the mandate from the Fourth Circuit Court of Appeals, and for that reason, the final judgment entered on February 12, 2018 is hereby VACATED. Signed by District Judge Liam O'Grady on 02/14/2018. (dvanm, ) (Entered: 02/15/2018)
176 USCA Mandate re 164 Notice of Appeal. The judgment of this court, entered January 18, 2018, takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (dvanm, ) (Entered: 03/12/2018)
177 ORDER granting 173 Motion for Entry of Final Judgment. It is further ORDERED that the June 18, 2014 decision of the Trademark Trial and Appeal Board scheduling the cancellation of Trademark Registration Nos. 1,606,810; 1,085,092; 987,127; 986,668; 978,824; 836,122 is hereby VACATED; and it is further ORDERED that this matter is REMANDED to the United States Patent and Trademark Office for further proceedings; and it is further ORDERED that all parties shall bear their own costs. Signed by District Judge Liam O'Grady on 03/20/2018. (dvanm, ) Modified on 4/5/2018 (dvanm, ). (Entered: 03/22/2018)

 
 Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 1 of 35 PageID# 1

FILED

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Fy'4

PRO-FOOTBALL, INC.,

. C

r-> i 'jn
!U P 1* 23
• • fU

Plaintiff,
V.
AMANDA BLACKHORSE, MARCUS BRIGGS-CLOUD, PHILLIP COVER, JILLIAN PAPPAN, and COURTNEY TSOTIGH,

Civil Action No.

Defendants.

^ (043

COMPLAINT
Plaintiff Pro-Football, Inc. ("Pro-Football," "Washington Redskins," "Redskins," or "the Club"), through its counsel, for its Complaint against defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Cover, Jillian Pappan, and Courtney Tsotigh ("Defendants"), alleges as
follows: NATURE OF THE ACTION
1. This appeal seeks a reversal of the singular, unprecedented, split decision issued by the Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office ("TTAB" or "Board"), which ordered the cancellation ofsix federal trademark registrations containing the word "Redskins," as used in connection with the Washington, D.C. professional football team, on the ground that these trademarks "may disparage" Native Americans. The TTAB's decision is replete with errors of fact and law, including its failure to restrict its analysis to the relevant time frame of 1967-1990, when the registrations were first issued. Further, the TTAB's decision violates the First and Fifth Amendments to the Constitution. This Court need give no deference to the TTAB's flawed findings, and should reverse the TTAB's order of cancellation.

Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 2 of 35 PageID# 2
2. The Washington Redskins is one ofthe most storied sports franchises in the United States. It has, for more than eight decades, continuously used the famous name "Redskins" as the name of its professional football team and has held federal trademark registrations for nearly fifty years. This action seeks de novo review, pursuant to 15 U.S.C. § 1071(b), of an administrative decision by the TTAB in a trademark cancellation proceeding brought by five Native Americans, captioned Blackhorse v. Pro-Football, Inc, Cancellation No. 92,046,185. By Order dated June 18, 2014,2014 WL 2757516 (the "TTAB Order"), a divided (2-1) TTAB ordered the cancellation ofsix ofPro-Football's federal registrations for trademarks containing the word "Redskins" (the "Redskins
Marks"). 3. The TTAB action was based on a sparingly used statutory provision. Section 2(a) of
the Lanham Act, 15 U.S.C. § 1052(a), which is rarely invoked to cancel any registered trademarks, let alone long-held, valuable registrations such as the Redskins Marks. The test under Section 2(a) for whether a mark "consists of or comprises ... matter which may disparage" turns not on presentday perceptions ofthe matter at issue, but rather on the views of the referenced group at the time of registration. In this case, the inquiry is strictly limited to whether the Redskins Marks were disparaging to a substantial composite of Native Americans in a time period ranging from 19671990, when each was registered. The TTAB found that, as ofthe registration date for each Redskins Mark at issue (one in 1967, three in 1974, one in 1978, and one in 1990), and as supported by "a preponderance of the evidence," "a substantial composite of Native Americans found the term REDSKINS to be disparaging in connection with respondent's services during the relevant time
frame of 1967-1990." TTAB Order at *29.
4. As recognized by the dissenting judge, and as detailed below, the TTAB erred in numerous respects in taking this extraordinary action, which deprives Pro-Football ofits long-held.
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extremely valuable rights in its federal registrations for the Redskins Marks. The record evidence considered by the Board is insufficient to supporta finding ofdisparagement in the pertinent years (1967,1974,1978, and 1990). As articulated by the dissent: "It is astoundingthat the petitioners did not submit any evidence regarding the Native American population during the relevant time frame, nor did they introduceany evidenceor argumentas to whatcomprises a substantial composite ofthat population thereby leaving it to the majority to make petitioners' case have some semblance of meaning." Id. at *36 (Bergsman, A.T.J., dissenting).
5. Indeed, another federal district court has already reviewed and reversed a similar order of the TTAB, based on a virtually identical record. In Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96 (D.D.C. 2003) (''Harjo''), Judge Kollar-Kotelly held that "the TTAB did not have what would be considered 'direct' or circumstantial evidence before it, or evidence from which it could draw reasonable inferences for such a conclusion." Id. at 127. "Ultimately, the evidence in the case does not answer the legal question ofwhether the trademarks, in the context oftheir use during the relevant time frames, may have disparaged Native Americans. The evidence chips away at the sides ofthis legal question but never helps answer it directly." Id. at 145. The Harjo court also ruled that the defense oflaches applies to Section 2(a) disparagement claims and was met where the petitioners knew ofthe existence ofthe Redskins Marks, yet waited to bring their case. Id. at 136-45. The U.S. Court ofAppeals for the District ofColumbia Circuit ("D.C. Circuit") uhimately upheld the district
court's ruling on laches.' Thus, examining the same facts, a sister district court has already ruled
that there is insufficient evidence to show disparagement in the 1967-1990 time period, and both the
' See Harjo, 415 F.3d 44, 50 (D.C. Cir. 2005) (remanding to district court for findings on
application oflaches to youngest petitioner, without ruling on disparagement), on remand to 567 F. Supp. 2d 46,62 (D.D.C. 2008) (youngest petitioner's claim barred by laches), affd, 565 F.3d 880, 883-86 (D.C. Cir. 2009).
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Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 4 of 35 PageID# 4

district and circuit courts have found that even the shortest applicable delay period ofless than two-

and-a-halfyears gave rise to a sustainable lachesdefenseby Pro-Football. SeeHarjo, 567 F, Supp.

2d at 54-56; Harjo, 565 F.3d at 885-86.

6. Regardless ofthe TTAB's errors here and the posture of this case as an appeal from

an administrative agency, the Court need not even consider the Board's findings and conclusions. If

either party, as is highly likely, introduces into the record any piece ofnew evidence. Fourth Circuit

precedent mandates that this Court engage in de novo review ofthe entire record. See Swatch AG v.

Beehive Wholesale, LLC, 739 F.3d 150,156 (4th Cir. 2014). Under a de novo standard, the Court

owes no deference to the TTAB's Order.^

7.

This case also raises serious constitutional issues that the TTAB—^because it is not an

Article III court—^properly did not address. For example, the Redskins Marks are extraordinarily

powerful and valuable communicators of information, embodying in a single word or two-word

phrase the entirety of the Redskins' long history and rich tradition in the arena of professional

football. The TTAB's action penalizes the Redskins for communicating to the public based on their

marks' content. The cancellation of the Redskins' valuable registrations carries practical and

financial impact, as discussed infra. The many benefits to a trademark owner that result from federal

registration are meaningful, and their loss comes at a high price. Section 2(a) of the Lanham Act

thus effectively chills constitutionally protected speech. Moreover, Section 2(a) is overly vague and

ambiguous. Finally, the TTAB Order deprives Pro-Football of its due-process rights and is an

unconstitutional taking ofPro-Football's property without just compensation. The Board's actions,

^ In Harjo, where the "substantial evidence" standard applied, the district court held, without
qualification that "the decision ofthe TTAB cannot v^thstand even the deferential level ofjudicial scrutiny provided by the substantial evidence test." 284 F. Supp. 2d at 128.
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Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 5 of 35 PageID# 5
therefore, amount to governmental action in violation ofPro-Footbairs First and Fifth Amendment rights under the Constitution ofthe United States.
8. Pro-Football seeks an Order ofthis Court: (1) reversing the TTAB Order scheduling the cancellation ofthe Redskins Marks; (2) declaring that the word "Redskins" or derivations thereof contained in the Redskins Marks, as identifiers ofthe Washington, D.C. professional football team, do not consist ofor comprise matter that may disparage Native Americans;(3) declaringthat Section 2(a) ofthe Lanham Act, 15 U.S.C. § 1052(a), is unconstitutional, both on its face and as applied to Pro-Football by the TTAB, under the First Amendment of the U.S. Constitution, and is void for vagueness; (4) declaring that the TTAB Order violates Pro-Football's rights under the Fifth Amendment ofthe U.S. Constitution; and (5) declaring that Defendants' petition for cancellation in the TTAB challenging the Redskins Marks under Section 2(a) was barred at the time it was brought by the doctrine of laches.
PARTIES
9. PlaintiffPro-Football, Inc. owns and operates the Washington Redskins football club, one of the thirty-two (32) National Football League ("NFL") member clubs (the "Member Clubs") whose teams play professional football games. Pro-Football is a Maryland corporation with its principal place of business at 21300 Redskin Park Drive, Ashbum, Virginia.
10. Upon information and belief. Defendant Amanda Blackhorse resides in Tucson,
Arizona.
11. Upon information and belief, Defendant Marcus Briggs-Cloud resides in Okmulgee,
Oklahoma.
12. Upon information and belief. Defendant Philip Gover resides in Lebanon, New Hampshire.
13. Upon information and belief. Defendant Jillian Pappan resides in Sioux City, Iowa.
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Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 6 of 35 PageID# 6

14. Upon information and belief, Defendant Courtney Tsotigh resides in Moore,

Oklahoma.

JURISDICTION AND VENUE
15. This Court has subject matterjurisdiction pursuant to 15 U.S.C. § 1071(b)(1),which provides that a party dissatisfied with a final decision of the TTAB may institute a new civil proceeding challenging such a decision. Because Defendants are adverse parties who reside "in a plurality of districts not embraced within the same State," subject matter jurisdiction, personal jurisdiction and venue is proper in this Court pursuantto the Leahy-SmithAmericaInventsAct, Pub. L. No. 112-29 § 9(a), 125 Stat. 284 (enacted Sept. 16,2011) (amending 15 U.S.C. § 1071(b)(1) and (4) by changing the applicable venue from the U.S. District Court for Washington, D.C. to the U.S. District Court for the Eastern District of Virginia). This Court also has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338, and declaratory judgment jurisdiction pursuant to 28

U.S.C. §2201.

BACKGROUND

A.

PROCEDURAL HISTORY

16. In September 1992, a group ofNative American petitioners filed a petition with the

TTAB to cancel the Redskins Marks. Harjo v. Pro-Football, Inc., Cancellation No. 21,069

(T.T.A.B.). The grounds for the Harjo action included claims that the Redskins Marks are

scandalous, may disparage Native Americans, and may bring Native Americans into contempt or

disrepute, in violation of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a).

17. On April 2,1999, the Board ordered the cancellation ofthe federal registrations for

the Redskins Marks, finding them to have been disparaging at the time they were registered, during

the time period of 1967-1990. Harjo, 1999 WL 375907, at *38-48 (T.T.A.B. 1999).

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Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 7 of 35 PageID# 7

18. On September 30,2003, a U.S. District Court for the District of Columbia (Kollar-

Kotelly, J.) reversed the TTAB, ruling that the record evidence did not support a finding of

disparagement during the 1967-1990 time frame. Harjo, 284 F. Supp. 2d at 135-36. The district

court also held that laches was an available defense in Section 2(a) disparagement-cancellation

actions and that the petitioners had waited too long to bring their claims, causing prejudice to Pro-

Football sufficient to support its laches defense. Id. at 139,144.

19. On July 15,2005, the D.C. Circuit remanded the case back to the district court for

further factual findings as to the youngest petitioner's delay. Harjo, A\5 F.3d at 50. The D.C.

Circuit never addressed the district court's disparagement ruling.

20. OnAugust 11,2006, Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Philip Gover, Jillian Pappan, and Courtney Tsotigh petitioned theTTAB to cancel thefederal registrations

ofthe Redskins Marks. Blackhorse, Dkt. No. 1 (the "Petition"). The basis for Defendants' Petition,
as in Harjo, was the claim that the Redskins Marks are scandalous, may disparage Native Americans, andmaybring Native Americans intocontempt or disrepute in violation of Section 2(a)

of the Lanham Act, 15 U.S.C. § 1052(a).
21. The registrations of the Redskins Marks that Defendants sought to cancel cover

entertainment servicesin the formofthe performance of professional football games, whichare seen and followed by millions of football fans. The Redskins Marks at issue all contain the word

"Redskins" or a derivation thereof:

• THE REDSKINS, stylized. RegistrationNo. 836,122, issued September 26, 1967;

•

WASHINGTON REDSKINS, Registration No. 978,824, issued February 12,1974;

•

THE WASHINGTON REDSKINS & DESIGN, Registration No. 986,668, issued

June 18, 1974;

•

THE REDSKINS & DESIGN, Registration No. 987,127, issued June 25,1974;

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Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 8 of 35 PageID# 8

•

REDSKINS, Registration No. 1,085,092, issued February 7,1978; and

•

REDSKINETTES, Registration No. 1,606,810, issued July 17,1990.

Copies of the registrations are attached hereto as Exhibits 1-6. 22. On September 26,2006, Pro-Football filed an answer denying all ofthe allegations

contained in the Petition, and asserted twelve affirmative defenses, including, inter alia, defenses

that granting the Petition would result in the violation of Pro-Football's constitutional rights under

the First and Fifth Amendments. Blackhorse, Dkt. No. 4.

23. On September 28, 2006, the Board agreed to suspend proceedings in Blackhorse

pending final disposition of the related Harjo case. Id., Dkt. No. 6.

24. On June 25, 2008, the district court in Harjo ruled in favor of Pro-Football on its

laches defense as to the remaining petitioner, whose delay period spanned twenty-nine months to

seven years, nine months, depending on the specific registration at issue. Harjo, 567 F. Supp. 2d at

62.

25. On May 15, 2009, the D.C. Circuit upheld the district court's decision, explicitly

noting that, given the facts present and that the petitioner had been aware of the Redskins Marks

during his delay period, "no reason" existed for even the twenty-nine month delay. Harjo, 565 F.3d

at 885.

26. On November 16, 2009, the Supreme Court of the United States denied the Harjo

petitioners' petition for writ of certiorari, officially ending the Harjo case.

27. In March 2010, the Blackhorse proceedings resumed. Dkt. No. 23.

28. During discovery, the parties entered into two joint stipulations. The first joint

stipulation, dated March 11,2011, stated in relevant part that the evidentiary record from the Harjo

TTAB case would be admissible in the Blackhorse proceeding, subject to limited objections such as

relevance. Id., Dkt. No. 31. The second joint stipulation, dated December 22, 2011, set forth
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Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 9 of 35 PageID# 9
various financial figures concerning the NFL's and the Redskins' revenues, expenditures, and valuations pertinent to Pro-Football's laches defense. Id., Dkt. No. 45.
29. By interlocutory order, Blackhorse, Dkt. No. 39 (T.T.A.B. May 5,2011) (the "May 5, 2011 Order"), the TTAB, relying on its status as an administrative agency and not an Article III court, decided that it was not empowered to entertain the Redskins' constitutional defenses. The TTAB, therefore, did not attempt to reconcile its decision or findings with the U.S. Constitution. In that Order, the Board also struck several ofthe affirmative defenses asserted by the Redskins. The TTAB specifically noted, however, that "[f]or purposes of clarity, our decision is intended to preserve [Pro-Football's] option to argue for application of the relevant defenses," including the constitutional defenses, "on appeal." Id. at 18; see also TTAB Order at *1 n.l (Pro-Football's "Constitutional challenges ... are preserved for appeal").
30. Also by interlocutory order, Blackhorse, Dkt. No. 40 (May 31, 2011) (the May 31, 2011 Order"), the TTAB ruled that the inquiry into disparagement properly looks to the perceptions of the targeted or referenced group, as measured by a substantial composite thereof, and that the
views ofthe general public are not relevant. Id. at8-9.^ The Board also held that the relevant time
fi-ame for assessing whether the Redskins Marks violate Section 2(a) is the date of the issuance of each registration, as opposed to the filing date ofthe Petition in 2006, and that the requisite prooffor each ofthose years is the preponderance-of-the-evidence standard. M at 11,3. The TTAB further
^ The TTAB Order uses the terms "disparaging" and "disparage" to encompass the full statutory
language "may disparage ... or bring them into contempt or disrepute." In the May 31,2011 Order, at 4, the TTAB held that the analysis for assessing whether a mark is disparaging is virtually the same as that for evaluating whether the mark "brings [Native Americans] into contempt or disrepute." As set forth infra., in addition to disparagement, Pro-Football seeks de novo review on the statutory grounds of "contempt" and "disrepute."
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ruled that the question of disparagement is to be answered in view of the context of the marks' use

and the services they identify. Id. at 10,

31. Also in the May 31, 2011 Order, the TTAB held that for calculating laches, the

operative date is the date of registration and the laches inquiry must balance the length and the

reasonableness ofthe delay against the detriment resulting from the delay. Id. at 12-18. The TTAB

also ruled that economic prejudice can result from mere the investment in and promotion ofa mark

during the period of delay. Id. at 16-17.

32. Although having raised in their Petition claims that the Redskins Marks "consist[s] of

or comprise[s] scandalous matter" and that the symbols contained in Registration Nos. 986,668 and

987,127, are scandalous, disparaging, or bring Native Americans into contempt or disrepute, see

Petition H1, Defendantsnever presented evidence or argument in support ofthese claimsbeforethe

TTAB and thus have waived them."^

33. Following several years ofdiscovery, motion practice, submissions ofevidence, final

briefing, and oral argument, on June 18, 2014 the TTAB scheduled the cancellation of the

registrations for the Redskins Marks based on an improper finding that "a substantial composite of

Native Americans found the term REDSKINS to be disparaging in connection with respondent's

services during the relevant time frame of 1967-1990." TTAB Order at *29.

B.

HISTORY AND FAME OF THE VALUABLE WASfflNGTON REDSKINS

MARKS

34. The team name "Redskins" was adopted by the NFL franchise over eighty years ago,

and is among the oldest ofteam names in any professional sports league. In 1932, George Preston

Marshall purchased the NFL franchise now named the Redskins. The following year the team, then

^ In the TTAB Order, the Board noted that the claim ofscandalousness and all claims relating to
the Native American imagery in the Redskins Marks were not part of the case before it. Id. at *7.

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located in Boston and called the "Braves," moved from Braves Field to Fenway Park and was renamed "TheRedskins" byMarshall to distinguish it from theprofessional baseball team playing in Boston. At the time the name "Redskins" was chosen for the team, four players—Louis Weller, John Orien Crow, David Ward and Larry Johnson—^and the team's head coach William"Lone Star" Dietz identified themselves as Native Americans. Since 1933, the Club has been known as the WashingtonRedskins or the Redskins, and has built tremendous recognition in the RedskinsMarks.
35. The Redskins have been leaders in the entertainment of the public through professional football games, broadcast via television and radio nationwide to millions of fans. The Redskins have appeared in eleven NFL championship games (including five Super Bowls),and won five ofthem (including three Super Bowls)—^the first following the 1937 season and the most recent following the 1991 season.
36. Completely ignored by the TTAB Order are the history and fame ofthe Redskins and the longstanding fame of the Redskins Marks—in nationwide use for almost three-and-a-half decades before being registered. This renown is perhaps best demonstrated by the level ofinterest in the Redskins expressed by members ofthe public nationwide. On any given Sunday during football season, many D.C. metropolitan-area residents unite for several hours to follow the Redskins game. Throughout the country. Redskins fans, including Native Americans, follow the team through newspaper sports pages, electronic media, local and national television and radio broadcasts of Redskins games, and, increasingly, broadcasts delivered via NFL satellite and mobile streaming packages, which allow participating households to view games not televised nationally. Corporate sponsors vie to associate their companies and products with the Redskins Marks, and merchandise bearing the Redskins Marks is widely sold, purchased, and recognized.
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37. The history of the Redskins' success and contribution to the community and the public at large is not limited to football-relatedactivities. Redskins' owners, players, coaches, and

other personnel have been involved in civic and charitable activities in the Washington, D.C.

community and the nation at large. The Club's national renown is also demonstrated by the

historical and continuing recognition of the Club and attendance at games and team events by

prominent political leaders.

38. The Redskins Marks are inherently valuable communicative symbols through which

the public identifies the team and its players, both past and present, and the Club's storied history.

The Redskins Marks do not merely identify the current team, but incorporate and communicate the

entirety of the team's history and fame. They do so not only today, but since the dates each

registration issued, the first of which was thirty-four years after the mark's first commercial use.

C.

THE VALUABLE BENEFITS OF FEDERAL REGISTRATION OF THE

REDSKINS MARKS

39. Pro-Football's federal trademark registrations confer valuable substantive and

procedural rights and substantial government benefits, including but not limited to those described

below.

40. A federal registration, as evidence of the trademark owner's constructive use of its

mark, confers nationwide priority—from the filing date of the registration—^upon a registrant, as

against any third party claiming first use of an identical or similar mark. 41. A certificate of registration of a mark on the principal trademark register is prima
facie evidence of: (1) the validity ofthe registered mark; (2) the registrant's ownership ofthe mark; and (3) the registrant's exclusive right to use the registered mark in commerce or in connection with

the goods or services specified in the certificate.

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42. Because the Redskins Marks have been federally registered for well over five years, the marks are "incontestable" as that term is defined in Section 15 of the Lanham Act, 15 U.S.C. § 1065. To the extent the right to use a registered mark has become incontestable under Section 15, the registration is conclusive evidence of: (1) the validity of the mark; (2) the registration of the mark; (3) the registrant's ownership of the mark; and (4) the registrant's exclusive right to use the
mark in commerce.
43. In a federal trademark-infringement action, the owner ofa registered trademark may be entitled to treble profits and damages and attorneys' fees, if successful against the defendant infiinger.
44. The owner of a federally registered trademark, upon exparte application, may be granted a court order authorizing theseizure ofcounterfeit goods andan award oftreble profits and damages or statutorydamages, as well as attorneys' fees.
45. Underthe federal anti-dilution statute, registration affords several significant, tangible benefits to owners ofdistinctive and famous marks such as the Redskins Marks. Firsts a trademark owner cannot obtain monetary relief under federal anti-dilution law without a registration. By
contrast, a registrant who prevails on a dilution claim can recover treble profits and damages and attorneys' fees. Second, the existence of a registration is a factor to be considered in determining whether a mark is distinctive and famous—^a threshold inquiry for dilution. Federal registration therefore helps trademark owners prove a mark's strength so as to sustain a dilution claim. Third, ownership of a federal registration immunizes the registrant from suit understateanti-dilution law.
46. A federal trademark registration givesthe registrantthe rightto use the symbol"®", which affords notice to the public thatthedesignation is beingusedas a trademark andthuspermits
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the registrant, in any suit for infringement, to collect profits and damages without proof of actual

notice.
47.

No article of imported merchandise that copies or simulates a registered trademark

without authorization ofthe trademarkowner may be admitted into the United States by the United

States Customs Service. In order to aid the Customs Service in enforcing this regulation, trademark registrants mayrecord theirtrademark-registration certificates withtheCustoms Service, pursuant to

15U.S.C.§ 1124.

48. The owner of a federal trademark registration may invoke the dispute policy of

Network Solutions, Inc. in order to prevent the adoption and use of unauthorized and infringing

Internet domain names.

49. The TTAB's ordered cancellation ofthe RedskinsMarks woulddeprivePro-Football

of the valuable benefits it has enjoyed for decades as a federal trademark registrant.

D.

SECTION 2(a) OF THE LANHAM ACT

50. Section 2(a) ofthe Lanham Act, 15 U.S.C. § 1052(a),provides, in relevant part, that

no trademark shall be registered on the principal register that "[c]onsists ofor comprises immoral,

deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with

persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or

disrepute."

51. Neither the Lanham Act nor its legislative history providesany guidancefor defining

the term "disparage" as used in Section 2(a). 52. The term "disparage" as used in Section2(a)was explicitlyacknowledgedby the U.S.

Patent and Trademark Office and the legislators debating the enactment of this section of the LanhamAct to be a highlysubjective term that wouldresultin severeproblemsin itsapplication. In the wordsof LeslieFrazer,AssistantCommissioner ofPatentsduringthe congressional hearings on

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Section2(a): "the use of [the word 'disparage'] in this connection is going to cause a great deal of difficulty in the PatentOffice,because, as someone else has suggested, that is a verycomprehensive word, and it is always going to bejust a matter ofthe personal opinion ofthe individual parties as to

whether they think it is disparaging."

53. As the TTAB has explicitly acknowledged in an unrelated case, assessing whether any mark, including the Redskins Marks, may be disparaging "is necessarily a highly subjective"

determination. In re Mines,32 U.S.P.Q.2d 1376,1994 WL 587037, at *2 (T.T.A.B. Sept. 23,1994).

54. The inclusion ofthe term "may" in conjunction with the word "disparage" adds to the

vagueness of the term.

THE REDSKINS MARKS SHOULD NOT BE CANCELLED

A.

ERRORS AND OMISSIONS IN THE TTAB ORDER

55. For the TTAB to cancel, based on the disparagement, contempt or disrepute

provisions of Section 2(a) of the Lanham Act, an incontestable mark that has been in use for more

than eight decades and validly registered for over four-and-a-half decades, is an exceedingly rare and

drastic measure—indeed, the TTAB has never before cancelled such a long-registered mark.

1.

Under The Applicable

Standard OfReview. The Court Does Not Give

Any Weight To The TTAB's Factual Or Legal Findings

56. Under controlling precedent, see Swatch, 739 F.3d 150, the standard ofreview in this

case will be de novo if, as is exceedingly likely, any party opts to introduce into the record any new

evidence. See also, e.g., TimexGroup USA, Inc. v. Focarino, No. l:12-cv-1080,2014 WL 130977,

at *1-2 (E.D. Va. Jan. 13, 2014) (applying Swatch)', ZAO Odessky Konjatschnyi Zawod v. SIA

"BaltmarkInvest",^o. l:12-cv-515,2014 WL785295,at*11 n.7(E.D. Va.Feb.21,2014)(same). Under a de novo standard, the Court reviews the entire evidentiary record anew, as ifthe case were

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filed as one oforiginaljurisdiction. The Courtthus would not give any weightto the factual or legal

findings in the TTAB Order.

57. This review differs from that in Harjo, where the district court reversed the TTAB's

factual findings under a "substantial evidence" standard. 284 F. Supp. 2d at 119-20. The

"substantial evidence" standard would be applicable here only in the remote event that no party

supplements the record with any new evidence. Notably, the Harjo court held that "the decision of

the TTABcannot withstandeven the deferential level ofjudicial scrutiny providedbythe substantial

evidence test." 284 F. Supp. 2d at 128.

2.

The TTAB's Findings Regarding Disparagement Constitute Errors Of Law

And Are Based On Erroneous Findings Of Fact

58. Even under the "substantial evidence" standard, however, the errors of fact in the

TTAB Order would not survive review. The errors of law, always reviewed de novo, would

similarly be rejected. The TTAB's legal conclusions were in error and were based on factual

findings that are not supported by substantial evidence, nor by a preponderance oftlie evidence, and

are otherwise insufficient to support cancellation of the Redskins Marks under Section 2(a).

59. For example, the TTAB was internally inconsistent by relying on evidence of the

general public's perceptions ofthe term "Redskins," such as dictionary usage labels and media use,

even though it had ruled that the viewpoint ofNative Americans was the only relevant perspective from which to assess the Redskins Marks under Section 2(a). Compare, e.g., TTAB Order at *4 n.15

with May 31,2011 Order at 8.

60. The Board erred by holding that the Club's intent in selecting and using the

"Redskins" name is irrelevant in determining whether the meaning of the Redskins Marks is

disparaging. TTAB Order at *10, *13.

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61. The TTAB erred by concluding that the relevant group for assessing whether a mark is disparaging is a "substantial composite" of Native Americans, but failing to define the term "substantial composite." Id. at *5; see also id. at *36 (Bergsman, A.TJ., dissenting) (petitionersdid not "introduce any evidence or argument as to what comprises a substantial composite of that population").
62. The TTAB erred by finding that 30% of the Native American population "without doubt" constituted a "substantial composite" thereof. Id. at *29. Highlighting this error is its direct conflict with the finding ofthe Harjo district court, having evaluated a virtually identical evidentiary record, that a conclusion that 36.6% ofthe Native American population amounted to a "substantial composite" was "difficult to support in the context of this case." 284 F. Supp. 2d at 133 n.32.
63. The TTAB erred by relying on evidence of a resolution passed by the National Congress of American Indians ("NCAI") in 1993 that a district court had previously found to be "irrelevant to the calculus," id. at 135, as it fell outside the only time period that the Board itself determined was relevant. In the May 31,2011 Order, at 11, the Board held that the only time period relevant to the disparagement question was the date ofissuance ofPro-Football's registrations (1967, 1974, 1978, and 1990). Nonetheless, in the TTAB Order, the Board improperly relied on, and accorded undue probative weight to, the 1993 resolution, which cannot be used to ascertain public opinion in 1967 and the other dates of registration. TTAB Order at *17-18, *27-29. The 1993 resolution is not an accurate reflection of views held in 1967,1974,1978, and 1990, both because: (1) it post-dates the registration dates; and (2) it unnaturally captures sentiments manipulated by an intervening event—^the 1992 filing of the Harjo petition to cancel the Redskins Marks. This inflammatoryintervening occurrence distorted the perceptionsofNativeAmericansand thus cannot
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and does not accurately reflectthe viewsof the NativeAmerican population before 1992, let alone
during the 1967-1990 time frame. 64. The Board erred in its finding that the 1993 resolution is evidence of the views of
30%of theNative American population. Id. *28-29. TheBoard relied upon a series ofinferences to findthattheNCAImember tribescomprised 30%of theNative American population in 1993. The Board then ignored evidence that the resolution at issue required that only one-third ofall member tribes be presentto pass it, with no evidence in the recordofwhich member tribes were present for the vote. Further, there is no record evidence that a resolution required a unanimous vote to pass.
(A mere majority vote, for instance, would translate to far less than 30% of the total Native American population.)
65. The TTAB erred in assuming that the individuals occupying a leadership role in seven Native American organizations—^who, in 1972, met v^th then-Redskins owner Edward Bennett Williams concerning the "Redskins" name—^attended that meeting on behalf of their respective memberships. Id. at *18-20, *27-27. The record is devoid of any evidence showing that the views ofthese seven individuals accurately reflected the views of—or, indeed, were even shared by—^the membership body of their respective groups. In improperly equating mere individual attendance with organizational support, the TTAB erred in assuming there to have been a substantial composite of Native Americans opposed to the "Redskins" name in 1972.
66. The TTAB erred in considering the dictionary usage labels as reflecting a "clear trend" toward employing the terms "offensive" or "disparaging," despite record evidence showing
that only two separate dictionaries before 1980 bore such usage labels.^ Id. at *13. The Board's
^ The record contains copies of, or list-citations to, several editions of the same dictionaries,
published in subsequent years with the same or similar usage labels.
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characterizationalso squarely contradicts the district court's assessment ofthe identical evidenceas "at best, equivocal." Harjo, 284 F. Supp. 2d at 130. The TTAB's erroneous characterization caused the Board improperly to accord "little weight" to the opinions of Pro-Football's linguistics expert witnesses, because they conflicted with the Board's own conclusion. TTAB Order at *12 n.l84.
67. The TTAB erred in discounting the significance ofthe qualifier "often" in dictionary usage labels and the importance of context, as recognized by dictionary editors, in assessing the
nature of the term "redskins." TTAB Order at * 12, *26 n.l79.
68. The TTAB erred in concluding, without record support, that the drop-off in general use of"redskins" from the 1960s forward indicates recognition by the general public that the use of the term "redskins" was in disfavor. Id. at *29; see also id. *39-40 (Bergsman, A.T.J., dissenting) (finding this conclusion "not supported by the record"). The district court in Harjo previously criticized the Board for having "merely assumed" this negative nexus: "There is no evidence in the record to support this finding one way or the other." 284. F. Supp. 2d at 131. The TTAB's erroneous conclusion caused the Board improperly to accord "little weight" to the opinions of ProFootball linguistics expert witnesses, because they differed from the Board's own conclusion. TTAB Order at *26 n.184. It also improperly placed the burden of proving non-disparagement on
Pro-Football.
69. The TTAB erred in holding that laches does not apply to a disparagement claim brought on behalf ofa group, id. at *31-32, in direct contravention of the Harjo court's ruling that laches is an available defense to such claims, 284. F. Supp. 2d at 137-39.
70. The TTAB erred in concluding that there was no economic prejudice to the Club during the period of Defendants' delay because of the pendency of the Harjo case, seemingly
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ignoringthe fact that the delay period includedyears followingjudicial rulingsin Harjo that favored

Pro-Football. TTAB Order at *33-34.
71. As previously stated, the TTABOrder schedulingcancellationofthe RedskinsMarks deprives Pro-Football of its famous, long-held federal trademark registrations without sufficient basis under the Lanham Act, against both the plain meaning and underlying intent of that statute. The Redskins Marks, as designations of the professional football team, do not disparage Native

Americans or bring them into contempt or disrepute under any analysis of the terms "disparage,"

"contempt," or "disrepute." To the contrary, the name "Redskins," when used in association with professional football—as it has been for over eighty years—denotesonly the team and connotes the history and tradition of the Club. As such, it embodies positive attributes, such as strength,

sportsmanship, and physical prowess, and evokes emotional reactions associated witli the

competition and entertainment provided by professional football.

3.

The Board Never Considered Pro-FootbalFs Constitutional Arguments

72. As previously stated, Pro-Football explicitly raised its constitutional arguments at

several stages of the proceedings, brought under the First and Fifth Amendments to the U.S. Constitution, thereby preserving all such constitutional arguments for this action. See May 5,2011

Order at 15-16. The Board properly determined that it was not empowered to address Pro-Football's

constitutional arguments, id. at 16, but expressly "intended to preserve [Pro-Football's] option to"

present its constitutional arguments "on appeal." Id. at 17; see also TTAB Order at *1 n.l (ProFootball's "Constitutional challenges ... are preserved for appeal").

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B. THE REDSKINS MARKS DO NOT DISPARAGE NATIVE AMERICANS^ 73. The Redskins Marks do not disparage Native Americans because, among other

things: (1) there is insufficient evidence to prove that in 1967, 1974, 1978, or 1990 Native Americans viewed the team name "Redskins" as disparaging; (2) the word "redskin" itself is not

disparaging per se^ as its use by Native Americans during the relevant 1967-1990 time period

illustrates; and (3) the Redskins Marks as used by Pro-Football have developed a distinctive, nondisparaging meaning in the context ofprofessional sports that refers only to the football team in the

Washington D.C. area, and this meaning was well established by 1967, more than thirty years after

the adoption and first use of the "Redskins" name.

1.

There Is No Record Evidence Showing That In 1967-1990 A Substantial

Composite Of Native Americans Considered "Redskins" To Be Disparaging

74. The record is devoid ofevidence as to how many Native American tribes there were

in the United States in 1967,1974,1978, or 1990 and as to how many tribes considered the team

name "Redskins" to be disparaging during the 1967-1990 time frame. 75. The record is devoid of evidence as to how many Native Americans lived in the
United States in 1967,1974,1978, or 1990 and as to how many Native Americans considered the

team name "Redskins" to be disparaging during the 1967-1990 time frame.

^ The Court need not even reach Defendants' disparagement claim orPro-Football's constitutional
defenses in light of Pro-Football's laches defense, set forth infra. The D.C. Circuit in Harjo explicitly held that, in view ofthe circumstances, where a petitioner is on notice ofa disparagement claim, it is his burden to file "immediately." 565 F.3d at 885. There, the D.C. Circuit upheld a laches claim based on a 29-month delay. Id. While the shortest delay period among Defendants is 11 months, the underlying rationale is the same. Defendants were each "fully aware of both the team's name and the cheerleaders' name," and thus there is "no reason" why they "failed to complain immediately about the registration[s]." Id.
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2.

The Word "Redskin" Was Not In 1967-1990^ And Is Not Disparaging Per Se

76. Even without considering the context of"Redskins," the word "redskin" was not and

is not per se disparaging. 77. Dictionary evidence indicates that the word "redskin" in general is not disparaging.

Editorial designations in the form of dictionary usage labels can be valuable indicators of

contemporary perceptions of a particular word at a particular point in time. Dictionaries extant before 1980, when Pro-Football's earlier registrations issued, typically did not contain any usage

label for the word "redskin," thus indicating the term in general to be unremarkable and not

disparaging. Further, the TTAB improperly discounted the significance ofthe qualifier "often" in those negative usage labels where it appeared, and the context-driven analysis demanded thereby.

See TTAB Order at *12, *26 n.l79.
78. Literary and cinematographicuses of"redskin" as an ethnicdenotatorreflectusageof

the term as a neutral term synonymous and interchangeable with "Native American" or "Indian."

79. The TTAB erred by discounting evidence from Native American reservations

showing that the word "redskin," when used in other contexts, is not disparaging. Throughout the

relevant 1967-1990 time period, Native Americans have used the word "redskin" and "Redskins,"

other than for the Washington, D.C. professional football team. See, e.g., id. *36-38 (Bergsman, A.T.J., dissenting).

3.

The Redskins Marks Do Not Disparage Native Americans When Viewed In

The Context Of Professional Sports. Where The Word "Redskins" Has

Developed A Distinctive Meaning Referring To The Washington. D.C.

Professional Football Team

80. A mark's registrability under Section 2(a) must be considered in the context of the

mark's overall use in conmierce.

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81. A mark is not disparagingunder Section2(a) where the relationshipbetweenthe mark and the goods or services used in connection with the mark is not in and of itself disparaging,
82. Pro-Football uses the term "Redskins" in the context ofprofessional football and has done so since 1933,thirty-four years before the registration date ofthe first ofthe RegisteredMarks.
83. Professionalfootball games are neither ofquestionable morality norper se offensive to or prohibited by Native American religious or cultural practices.
84. Professional football games enjoy nationwide recognition, including among Native
Americans.
85. When used in connection with professional football games, the word "Redskins" bears only positive associations.
86. Neither Pro-Football, nor any team member, has ever engaged in behavior perceived as disparaging Native Americans.
87. Even if the term "redskin," used in singular, lower case form, refers to an ethnic group, the term is not disparaging when employed as a proper noun, as a team name, in the context of professional football.
88. The TTAB itself has recognized that the availability of an alternate meaning of a mark is important to the determination of whether the mark, as used, is disparaging.
89. As stated previously, through long, substantial and widespread use, advertising, promotion, and media coverage nationwide over eight decades, Pro-Football's Redskins Marks have acquired a strong and distinctive denotative meaning identifying the Club's entertainment services in the context of professional football. This meaning had attached to the Redskins Marks by 1967, when the first registration issued—^more than thirty years after the Club's first use ofthe "Redskins"
team name.
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90. As a result ofthis strong secondary meaning, "Redskins" was perceived in 1967, and

today, to be a distinct denominative word, entirely separate from "redskin" as denoting ethnicity.

Even though deriving from the original, ethnic meaning of "redskin," "Redskins" had become, by

1967 at the latest, a separate, entirely positive term used in context solely to identify the professional

Washington, D.C.-aiea football team.

91. Today, more than four-and-a-half decades after its original registration, the use of

"Redskins" as a denominative designation for the professional football team is even more deeply

ingrained in popular culture, and the distinctive meaning of "Redskins" is even more firmly

established in the English language.

92. By failing to acknowledge the separate meaning in 1967, after more-than-three

decades of popular use, of the term "Redskins" as identifying the professional football team—

irrespective of the team's continued allusions to the core, ethnic meaning of"redskin"—^the Board

erred as a matter of law.

4.

Native Americans Support The Team Name

93. The TTAB has recognized the value, to the ultimate determination of whether the

challenged mark violates Section 2(a), of factual evidence comprising reactions of persons in the

allegedly disparaged group.

94. Native Americans recognize the goodv^dll and positive attributes that accompany the

team name "Redskins" and advocate retention of the "Redskins" name and support the team.

95. Defendants have conceded that they speak only for themselves and not on behalfofor

with the support of any tribe.

96. The TTAB erroneously discounted evidence that there are Native Americans,

including tribal chiefs and recognized leaders, who react positively to "Redskins" as used to denote

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the professional football teamfrom Washington D.C., including during the relevant timeperiod of

1967-1990, and have supported the team name.

5.

The Public Uses "Redskins^* To Identify And Associate With The Club

97. "Redskins" has been used extensively by the public to identify the professional

football team from Washington D.C. 98. Year after year, merchandise bearing the Redskins Marks has been purchased by

consumers in large quantities, indicating that many members of the consuming public desire to

associate themselves with the Washington Redskins by purchasing and wearing or using products

bearing the Redskins Marks. 99. Newspapers feature the team name "Redskins" in headlines and throughout sports

articles, and have continued to do so, solely as a term ofreference for the professional football team

and not for persons of Native American descent. As noted supra, corporate sponsors actively

associate themselves each year with the Redskins brand. Similarly, United States Presidents and

Vice Presidents have openly and publicly associated themselves with the Washington Redskins.

6.

The Club's Positive Intent In The Selection And Usage Of The Team Name

Precludes Disparagement Under Section 2(a)

100. The TTAB erred by holding that the Club's positive intent in its use and selection of

the team name "Redskins" was not relevant to the disparagement inquiry, despite testimony by

experts retained by both sides that the word "disparage" requires intent on the part of the speaker.

101. Disparagement has been defined as the utterance of a statement that the speaker intends to be understood as demeaning, deprecatory, or belittling. The focus thus is on the intent of

the speaker. This focus on the speaker's intent is required by the First Amendment, which considers whether the speech itself is protected, regardless of the subjective feelings of listeners.

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102. Pro-Football's intent in adopting the team name was entirely positive. As ProFootball has publicly stated: "Over the long history of the Washington Redskins, the name has reflected positive attributes of the Native American such as dedication, courage and pride." The

Club has continuously represented Native Americans in a "reserved and tasteful" manner.

C. THE REDSKINS MARKS DO NOT BRING NATIVE AMERICANS INTO CONTEMPT OR DISREPUTE
103. Defendantsbear the burdenofprovingthatthe Redskins Marksas designations ofthe team may bring Native Americans into contemptor disrepute under Section 2(a).
104. For the reasonsstated supra regarding disparagement, the evidence doesnot supporta de novo conclusion that, in 1967-1990, the Redskins Marks brought Native Americans into

contempt or disrepute.

105. Likewise, the TTAB's finding that the Redskins Marks "may bring Native Americans into contempt or disrepute" was based on the same evidence it considered to conclude that the

Redskins Marks "may disparage" Native Americans. TTAB Order at *7 n.33. Because the TTAB's

legal and factual conclusions were in error, and for the reasons set forth herein, there is not substantial evidence showing that the Redskins Marks bring Native Americans into contempt or

disrepute.

D.

CANCELLATION OF THE REDSKINS MARKS VIOLATES THE FIRST AND

FIFTH AMENDMENTS OF THE U.S. CONSTITUTION

106. The TTAB declined to consider Pro-Football's defenses brought under the U.S.

Constitution in construing Section 2(a) of the Lanham Act.

1.

Cancellation Of The Redskins Marks Violates The First Amendment

107. Trademarks are constitutionally protected commercial speech. A trademark

communicates a virtually unlimited range ofmessages. In the complex commercial world that has

developed over the past century, a trademark is a shortcut, a book reducedto a singleword or phrase,

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communicating the quaUty, value, producer, sponsor,and limitless other attributesof a product or
service.
108. The Redskins Marks, moreover, are deserving of even greater protection than pure commercial speech, which merely proposes a commercial transaction. Trademarks—particularly marks that have been so long-held and are as indisputably famous as the Redskins Marks—are core speech, representing virtually infinite expressionthrougha mere symbol,phrase,or individualword. Pro-Footballand the general public use the Redskins Marks to invokethe historyand storiedsuccess ofthe Club,and the marks evokeemotionalresponsesfrom spectatorsand fans. Thus, the Redskins Marksconsist ofspeechmore akin to a film, novel, or work ofart than to a mere proposal to engage
in a commercial transaction.
109. The provisions of Section 2(a) of the Lanham Act relied upon by the TTAB stand apartfromthe general regulatory schemeof the Act, whichis designed generallyto review, register, and then accord protection to designations functioning as trademarks. The disparagement and contempt/disreputeprovisions ofSection 2(a) do not test for basic trademark functionality. Indeed, it cannot be disputed that the Redskins Marks have the necessary attributesto functionas trademarks and therefore qualify for federal trademark registration: they are famous marks that have been registered for up to forty-seven years and in which Pro-Football has worked to establish extremely valuable rights for over eighty years.
110. Rather, because it targets the so-called "disparaging," "contempt[uous]," or "disreput[able]"aspectsofa mark. Section2(a) regulatesthe actualcontentofa mark's message and distinguishes between marks on the basis of content.
111. Section 2(a) conditions the granting ofthe benefits offederal trademark registration upon the registrant not exercising constitutionally protected free speech rights. Conditioning a
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Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 28 of 35 PageID# 28
benefit on the basis of speech content disadvantages certain speech and is as offensive to the U.S. Constitution as a direct prohibition ofspeech. The government may not withhold a benefit from the Club or anyone else on a basis that impinges upon the right of free speech.
112. Section 2(a), both on its face and as applied to Pro-Football by the TTAB Order, is an impermissible content-based restriction inherently violative of the First Amendment. The TTAB Order for the cancellation ofthe Redskins Marks would deny Pro-Football the valuable benefits of federal registration based solely on the content of the protected speech contained in the Redskins
Marks.
113. No governmental interest has been asserted to justify such severe, constitutionally offensive injury to Pro-Football.
114. The terms "disparage," "may disparage,""contempt," "disrepute," and "may bring... into contempt or disrepute"—^which the TTAB acknowledges are not defined in the statute or in its legislative history—are unconstitutionally vague. The statutory language of Section 2(a) fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits, and therefore conveys no ascertainable standards for trademark owners to follow. The statutory language of Section 2(a) thereby encourages and authorizes arbitrary and discriminatory enforcement by leaving the Board with virtually unfettered discretion to deny registration or to cancel registrations, even in situations such as the one presented here, where for over eighty years Pro-Football has worked to establish valuable rights in its marks, and has owned its initial registration in the series of marks, for over forty years. Section 2(a) thus effectively chills First Amendment free speech rights.
115. The terms "disparage," "may disparage," "contempt,""disrepute,"and "may bring... into contempt or disrepute" are unconstitutionally overbroad and sweepundertheir rubrics speech
-28-

Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 29 of 35 PageID# 29

that is not capable of being legitimately regulated by the government. There is no core of easily

identifiable and constitutionally proscribable conduct prohibited by Section 2(a). Rather, to the

extent there are any legitimate applications of Section 2(a), they are few in comparison to the

substantial unconstitutional applications of the law that impermissibly restrict protected speech.

Section 2(a) thus chills protected speech that falls within its overbroad language.

116. A federal trademark registration does not confer any government endorsement or

imprimatur.

117. As applied to Pro-Football, Section 2(a) violates the First Amendment, because: (1)

Pro-Football's trademarks constitute truthful, nonmisleading, lawful speech; (2) any asserted

governmental interest in regulating the content of Pro-Football's registered trademarks is not

substantial; (3) because Pro-Football may continue to use its marks absent federal registrations and

because federal registration does not confer any official endorsement or imprimatur, any asserted

state interests would not be advanced by cancellation, and thus Section 2(a) does not directly

advance any such governmental interest; and (4) Section 2(a) is more extensive than necessary, in

that it prohibits registration notjust ofobscene or fightingwords, but ofnonmisleading, lawfulterms that communicate a messagethat some might perceive as offensive, while others might not.

2.

Cancellation Of The Redskins Marks Violates The Due Process Clause of the

Fifth Amendment

118. Because Section 2(a) is unconstitutionally vague, see supra, it operates to deprive

trademark owners, such as Pro-Football, ofproperty without due process oflaw, in violation of the

Due Process Clause of the Fifth Amendment.

119. Because Pro-Football has enjoyed, relied on, and invested in its federal registrations

for almost halfa century, the TTAB Order for the cancellation ofthe Redskins Marks violates Pro-

Football's due-process rights provided by the Fifth Amendment.

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Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 30 of 35 PageID# 30

120. In addition, Pro-Football was deprived of the right to a fair and impartial hearing before the TTAB, in violation of Pro-Football's due-process rights provided by the Fifth

Amendment.

3.

Cancellation OfThe Redskins Marks Violates The Takings Clause ofthe Fifth

Amendment

121. The federal trademark registrations for the Redskins Marks are federally granted

property rights on which Pro-Football has relied for over four decades. Since the registration ofthe

first Redskins Mark in 1967, Pro-Football has invested millions of dollars in the use, promotion,

registration, and protection ofits registrations for the Redskin Marks. Pro-Football has invested in its propertyin expectation ofits continueduse and enjoyment ofthe valuablerights and benefits,as alleged supra, afforded by its registrations.
122. The cancellation of the federal registrations for the Redskins Marks deprives ProFootball of thesevaluablerightsand benefits, by whollydepriving Pro-Football of itsproperty inthe

form of its federal registrations for the Redskins Marks.

123. The TTAB Order for the cancellation ofthe Redskins Marks has also interfered with
Pro-Football's use and enjoyment of its property in the form of the Redskins Marks and other

REDSKINS marks.
124. Pro-Football was not compensatedby the TTAB or any other government actor for

the deprivation of the Redskins Marks.

125. The TTAB Order for the cancellation of the Redskins Marks constitutes an
unconstitutional taking of Pro-Football's property vwthout just compensation in violation of the Takings Clause of the Fifth Amendment.

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Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 31 of 35 PageID# 31

E.

DEFENDANTS^ LONG DELAY IN SEEKING RELIEF

126. The Redskins Marks have been registered for as long as forty-seven years and were

known to Defendants well before they reached the age of majority. Defendants can offer no valid

reason for waiting between the date(s) on which they reached the age of majority and August 11,

2006, the date on which they filed the Petition.

127. Pro-Football has invested millions of dollars in the use, promotion, registration and

protection of the Redskins Marks over the past eighty years, and, specifically, over the more-than-

forty years since the initial registration issued for the Redskins Marks, and including every day that

Defendants delayed before filing the Petition. The substantial goodwill and value in the Redskins

Marks developed by Pro-Football through such effort and expense was created and maintainedprior

to any complaint or objection by Defendants, including during the period subsequent to the Harjo

district court's ruling in Pro-Football's favor.

128. The Board erroneously ruled that the laches defense is not available to Pro-Football

because laches does not apply to a disparagement claim brought on behalfofa group. TTAB Order

at *31-32. The TTAB's holding is in direct contravention to a district court's ruling that laches was

an available defense to such claims. Harjo, 284 F. Supp. 2d at 137-39.

129. Because ofthe tremendous value in the Redskins Marks developed by the Redskins

over the better part ofthe past century, the period ofDefendants' inexcusable delay in bringing their

Petition has resulted in economic prejudice to Pro-Football. Defendants, therefore, should have been

barred from bringing their claims pursuant to the doctrine of laches. The Board erroneously ruled

that the economic prejudice suffered by Pro-Football is not attributable to Defendants' delay.

-31 -

Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 32 of 35 PageID# 32
FIRST CAUSE OF ACTION (Declaration of Non-Disparagement)
130. Pro-Football repeats and realleges the allegations ofParagraphs 1 through 129 ofthe Complaint as if fully set forth herein.
131. Pro-Football's Redskins Marks do not, and will not, disparage Native Americans in violation of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a).
SECOND CAUSE OF ACTION (Declaration of Non-Contempt or Disrepute)
132. Pro-Football repeats and realleges the allegations ofParagraphs 1 through 131 ofthe Complaint as if fully set forth herein.
133. Pro-Football's Redskins Marks do not, and will not, bring Native Americans into contempt or disrepute in violation of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a).
THIRD CAUSE OF ACTION (Declaration that Section 2(a) of the Lanham Act Violates the First Amendment)
134. Pro-Football repeats and realleges the allegations ofParagraphs 1 through 133ofthe Complaint as if fully set forth herein.
135. Section 2(a) is a content-based restriction on speech that violates the First
Amendment to the U.S. Constitution.
136. Section 2(a) is facially overbroad, in violation of the First Amendment. 137. Separately and independently, as applied to Pro-Football, Section 2(a) violates the
First Amendment. FOURTH CAUSE OF ACTION
(Declaration that Section 2(a) of the Lanham Act Is Void For Vagueness
138. Pro-Football repeats and realleges the allegations ofParagraphs 1 through 137 ofthe Complaint as if fully set forth herein.
139. Section 2(a) is unconstitutionally void for vagueness.
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Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 33 of 35 PageID# 33
FIFTH CAUSE OF ACTION (Declaration that the TTAB Order Violates the Due Process Clause of the Fifth
Amendment)
140. Pro-Football repeats and realleges the allegations ofParagraphs 1 through 139ofthe Complaint as if fully set forth herein.
141. The TTAB Order abridges Pro-Football's due-process rights provided by the Fifth
Amendment to the U.S. Constitution.
142. The cancellation ofPro-Football's registrations unreasonably deprives Pro-Football of federally granted property rights that it has relied on for almost half a century, in violation of its right to due process. During the past forty-seven years, Pro-Football has invested millionsofdollars in the use, promotion, continued registration, and protection of its registered marks based on its reasonable belief that its property interests would have full protection under the law.
143. Becauseofthe deprivation ofPro-Football' s extremelylong-heldpropertyrights,the TTAB Order for the cancellationofPro-FootbaU'sregistrations violates Pro-Football's due-process rights provided by the Fifth Amendment to the U.S. Constitution.
144. In addition, Pro-Football was deprived of the right to a fair and impartial hearing before the TTAB, in violation of Pro-Football's due-process rights provided by the Fifth
Amendment to the U.S. Constitution. SIXTH CAUSE OF ACTION
(Declaration that the TTAB Order Violates the Takings Clause of the Fifth Amendmenf^
145. Pro-Football repeats and realleges the allegations ofParagraphs 1 through 144 ofthe Complaint as if fully set forth herein.
146. The TTAB Order constitutes an unconstitutional taking of Pro-Football's property without just compensation in violation of the Takings Clause of the Fifth Amendment to the U.S.
Constitution. -33-

Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 34 of 35 PageID# 34
SEVENTH CAUSE OF ACTION (Declaration that Defendants* Petition Was Barred bv the Doctrine of Laches)
147. Pro-Football repeatsand reallegesthe allegationsofParagraphs 1 though 146 ofthe Complaint as if fully set forth herein.
148. As a result ofDefendants' inexcusable delay in filing the Petition for Cancellationof the Redskins Marks, and the undue prejudice suffered by Pro-Football, Defendants' Petition before the TTAB was barred by the doctrine of laches.
PRAYER FOR RELIEF
WHEREFORE, Pro-Football requests this Court to enter judgment: (a) reversing the Order ofthe Trademark Trial and Appeal Board, dated June 18,2014, scheduling the cancellation of Pro-Football's Washington Redskins trademark registrations; (b) ordering the Trademark Trial and Appeal Board to deny Defendant's Petition for Cancellation; (c) declaring that Pro-Football's Redskins Marks do not disparage Native Americans, in violation of Section 2(a) of the Lanham Act; (d) declaring that Pro-Football's Redskins Marks do not bring Native Americans into contempt or disrepute, in violation of Section 2(a) of the Lanham Act; (e) declaring that Section 2(a) of the Lanham Act, on its face is unconstitutional under
the First Amendment to the U.S. Constitution; (f) declaring that Section 2(a) of the Lanham Act, as applied to Pro-Football, is
unconstitutional under the First Amendment to the U.S. Constitution; (f) declaring that Section 2(a) of the Lanham Act is unconstitutionally void for
vagueness;
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Case 1:14-cv-01043-GBL-IDD Document 1 Filed 08/14/14 Page 35 of 35 PageID# 35
(h) declaring that the TTAB Order is unconstitutional under the Due Process Clause of
the Fifth Amendment to the U.S. Constitution;
(h) declaring that the TTAB Order is unconstitutional under the Takings Clause of the
Fifth Amendment to the U.S. Constitution;
(i) ordering the Trademark Trial and Appeal Board to dismiss Defendants' Petition for
Cancellation challenging the Redskins Marks under Section 2(a), because the
Petition was barred by the doctrine of laches at the time it was brought before the
Trademark Trial and Appeal Board; and (j) awarding Pro-Football such other and further relief as this Court may deem proper.
Dated: Alexandria, Virginia August 14,2014
Craig C. Reflly, Esq. (VSB # 20942)
craig.reillv@.ccreillvlaw.com The Law Office of Craig C. Reilly 111 Oronoco Street
Alexandria, Virginia 22314 Tel: (703)549-5354 Fax: (703) 549-5355
Robert L. Raskopf{pro hac vice forthcoming)
robertraskopf@quinnemanuel.com
Todd Anten (pro hac vice forthcoming)
toddanten@quinnemanuel.com
Claudia T. Bogdanos {pro hac vice forthcoming)
claudiabogdanos@quinnemanuel.com
Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Tel: (212)849-7000 Fax: (212) 849-7100
Counselfor PlaintiffPro-Football, Inc.
-35-

Case 1:14-cv-01043-GBL-IDD Document 1-1 Filed 08/14/14 Page 1 of 1 PageID# 36

United States Patent Office

836,122
Registered Sept. 26, 1967

PRINCIPAL REGISTER Service Mark

Ser. No. 250^27, filed July 14>1966

Pro>Football, Inc. (Maryland corporation) The Redskin Bldg., 9th SL at H NW.
Washington 1, D.C.

For: ENTERTAINMENT SERVICES—NAMELY,
FOOTBALL EXHIBmONS RENDERED LIVE IN STADIA AND THROUGH THE MEDIA OF RADIO AND TELEVISION BROADCASTS—in CLASS 107.
First use about 1932; in commerce about 1932. Owner of Reg. No. 540,424.
J. BREEN, Examiner.

EXHIBIT 1

Case 1:14-cv-01043-GBL-IDD Document 1-2 Filed 08/14/14 Page 1 of 1 PageID# 37

United ;States Patent Office _ .. ._. Registered Feb. 12,1974
PRINCIPAL REGISTER Service Mark
Sex. No. 435,243, filed Sept 11,1972

WASHINGTON REDSKINS

13832 Redskin Dnve,Redskin Park,P.O. Box17247
Washington, D.C. 20041

PRpEoSrE: NETNATTIEORNTSAIONFMPERNOTFESSESRIOYNICAELSF-NOAOMTBEALLYL,
CONTESTS—in CLASS 107 (INT. CL. 41).
First use Sept 19,1937; in commerce Sept 19, 1937. Owner of Reg. Nos. 836,121 and 836,122.
M. E. ABRAMSON, Sapervisory Bcaminer

EXHIBIT 2

Case 1:14-cv-01043-GBL-IDD Document 1-3 Filed 08/14/14 Page 1 of 1 PageID# 38

Int. Ci.: 4i
Prior U.S. CL: 107
Uoited States Patent OfSce
SERVICE MARK
Principal Register

Reg. No. 986,668
Registered June 18, 1974

WASHINGTON

REDSKINS

Pro-Football, Inc. (Maryland corporation) 13832 Redsl^ Drive
Redskin Park
P.O. Box 17247
Washington, D.C. 20041

For: ENIBRTAINMENT SERVICES—NAMELY, PRESENTATIONS OF PROFESSIONAL FOOTBALL CONTESTS, in CLASS 107 (INT. CL. 41).
First use January 1941; in commerce January 1941. Owner of Reg. Nos. 836,121 and 836,122.
Ser. No. 435,127, filed Sept. 11, 1972.

EXHIBIT 3

Case 1:14-cv-01043-GBL-IDD Document 1-4 Filed 08/14/14 Page 1 of 1 PageID# 39

Int. a: 41 PiiorU.S.a.:107
United Stetes Patent Office
SERVICE MARK
Principal Register

Reg. No. 987,127
Registered June 2S, 1974

Pro-Football, Inc. (Maryland corporation) 13832 Redskin Drive, Redskin Park
P.O. Box 17247
Washington, D.C 20041

For: ENTERTAINMENT SERVICES—NAMELY, PRESENTATIONS OF PROFESSIONAL FOOTBALL CONTESTS, in CLASS 107 (INT. CL. 41).
First use January 1941; in commerce January 1941. Owner of Reg. Nos. 836,121 and 836,122.
Ser. No. 43S;244, filed Sept 11,1972.
M. E. ABRAMSONj Supervisory Examiner

EXHIBIT 4

Case 1:14-cv-01043-GBL-IDD Document 1-5 Filed 08/14/14 Page 1 of 1 PageID# 40

Int a.: 41 PriorU.S.a: 107
United StatK Patent Office
SERVICE MARK
Principal Register

Reg. No. 1,085,092
Registered Feb. 7, 1978

REDSKINS

Pro-Football, Lie. (Maryland corporation) Dulles Intemational Aiiport, P.O. Box 17247 Washington, D.C. 20041

For: ENTERTAINMENT SERVICES—NAMELY, PRESENTATIONS OF PROFESSIONAL FOOTBALL CONTESTS—in CLASS 41 (U.S. CL. 107).
First use 1932; in conunerce 1932. Owner of Reg. Nos. 978,824, 986,668, and 987,127.
Ser. No. 107,873, filed Nov. 26,1976.
FREDRIC GUSHIN, Examiner

EXHIBIT 5

Case 1:14-cv-01043-GBL-IDD Document 1-6 Filed 08/14/14 Page 1 of 1 PageID# 41

Int. a.: 41 Prior U.S. a.: 107
United States Patent and Trademark Office' Registered July 17,1990
SERVICE MARK
PRINCIPAL REGISTER
REDSKINETTES

PRO FOOTBALL, INC. (MARYLAND CORPORATION)
REDSKIN PARK, P.O. BOX 17247 - DULLES 13832 REDSKIN DRIVE
WASHINGTON. DC 20041
FOR: ENTERTAINMENT SERVICES,
NAMELY, CHEERLEADERS WHO PERFORM
DANCE ROUTINES AT PROFESSIONAL

FOOTBALL GAMES AND EXHIBITIONS AND OTHER PERSONAL APPEARANCES. IN CLASS 41 (U.S. CL. 107).
FIRST USE 0-0-1962; IN COMMERCE
0-0-1962.
SER. NO. 73-829,272, FILED 10-4-1989.
CRAIG D. TAYLOR, EXAMINING ATTORNEY

EXHIBIT 6

iM. Case 1:14-cv-01043-GBL-IDD Document 1-7 Filed 08/14/14 Page 1 of 2 PageID# 42

JS44 (Rev, 12/12)

CIVIL COVER SHEET

The JS 44 civil coversheetandthe information contained herein neither replace norsupplement the filing andservice of pleadings or otherpapers as required by law, except as provided bv local rulesof court. This form, approved bv the Judicial Conference of the United Statesin September 1974, is required forthe useof the Clerkof Courtfor the purpose of initialing thecivil docket sheet. (Sl-I- iNSmhcTlONS ON NHM I'AGK OFTHIS FORM.}

L(a) PLAINTIFFS PRO-FOOTBALL, INC..

DEFENDANTS
AMANDA BLACKHORSE, MARCUS BRIGGS-CLOUD, PHILLIP
GOVER, JILLIAN PAPPAN, and COURTNEY TSOTIGH

(b) County of Residence of First Listed PlaintilT Loudoun Co.. VA (EXCEPT IN U.S. PIAINTIFF CASES)
(c) Attorneys (Finn Name. AtUrcss. andTelephone Number) Craig C. Reilly, Esq., VSB# 20942,111 Oronoco St., Alexandria, VA 22314 TEL: (703)549-5354

County of Residence of First Listed Defendant (IN U.S PIAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
Attorneys (ifKnown)

II. BASIS OF JURISDICTION (Placcan "X"inOncHoxOnly)

n 1 U S Government Plaintiff

53 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Placean -X"inOneBoxforPlwnt,.

(For Diversity Cases Only)

and One Boxfor Defendant)

PTF DEF

PTF

DEF

Citizen of This Stale

•I • 1 Incorporatedor Principal Place

• 4 ^4

of Business In This State

• 2 U.S. Government Defendant

O 4 Diversity (Indicate Citizenship ofPartie.s in Item III)

Citizenof AnotherState

0 2 • 2 Incorporated W Principal Place
of Business In Another State

0 5 ^5

Citizen or Subject of a
Foreisn Countrv

0 3 3 3 ForeignNation

IV. NATURE OF SUIT (Place an "X"inOne Box Only)

CONTRACT

-

TORTS .

. 'C ^NKRUPTCyi^^i

• 110 Insurance

PERSONAL INJURY

PERSONAL INJURY O 625 Dnig Related Seizure

• 422 Appeal 28 use 158

G 120 Marine • 130 Miller Acl
• 140 Negotiable Instrument

• 310 Airplane • 3!5 .AirplaneProduct
Liability

O 365 Personal Injury Product Liability
O 367 Health Care/

of Property-21 USC881
• 690 Other

• 423 Withdrawal 28 use 157

• 150 Recovery of Overpayment • 320 Assault, Libel &

& Enforcement of Judgment

Slander

Pharmaceutical
Personal Injury

• 820 Copyrights

• 151 Medicare Act
• 152 Recovery of Defaulted
Student Loans
(Excludes Veterans) •I 15.T Recovery of Ovcipaynient
of Veteran's Benefits • 160 Stockholders'Suits • I *>0Oilier Contract
• 195 Contract Product Liability
• 196 Franchise

• 330 Federal Employers' Liability
• 340 Marine
• 345 Marine Product
Liability
• 350 Motor Vehicle • 355 Motor Vehicle
Product Liability
• 360 Other Personal
Injui> • 362 Personal lnjm>- -
Medical Malpractice

Product Liability

• 368 Asbestos Personal
Injury Product

Liability

PERSONAL PROPERTY • 710 Fair Labor Standards

• 370 Otlier Fraud
• 371 Truth in Lending

Act
• 720 Labor/Management

• 380 Other Personal Property Damage
• 385 Property Damage

Relations
0 740 Railway Labor Act • 751 Family and Medical

Product Liability

Leave Act
• 790 Otlier Labor Litigation

• 830 Patent
S 840 Trademark
• 861 HIA(1395fO • 862 Black Lung (923) • 863 DIWC/DIWW (405(g))
• 864 SSID Title XVI
• 865 RSI (405(g))

REAL PROPERTY

aClVlIrRIGHTS

iPRISONERBETrnONS^ • 791 Employee Retirement

• 210 Land Condemnation

• 440 Other Civil Rights

Habeas Corpus:

Income Securiiv Act

• 870 Taxes (U.S. Plaintiff

• 220 Foreclosure

• 441 Voting

• 463 Alien Detainee

or Defendant)

O 230 Rent Lease & Ejeclment
• 240 Torts to Land
• 245 Ton Product Liability • 290 All Oilier Real Property

• 442 Employment

• 510 Motions to Vacate

• 443 Housing/

Sentence

Accommodations

• 530 General

• 445 Amer. \v/Disabilities- • 535 Death Penalty

Employinent

Other:

• 446 Amer. w/Disabilities - • 540 Mandamus & Otiicr

Other

• 550 Civil Riglits

• 871 IRS—Third Party
26 use 7609
ilMMIGiaaiKWSRiiljHailg
• 462 Naturalization Application • 465 Otlier Immigration
Actions

• 448 Education

• 555 Prison Condition

• 560 Civil Detainee-

Conditions of

Confinement

0 6 06
.iOTHERSSECTllTES^
• 375 False Claims Act
• 400 State Reapportionment
• 410 Antitrust
• 430 Banks and Banking
• 450 Commerce
• 460 Deportation
• 470 Racketeer Influenced and
Corrupt Organizations
• 480 Consumer Credit • 490 Cable/Sat TV • 850 Securities/Commodities/
Exchange • 890 Other Statutory Actions • 891 Agricultural Acts
• 893 Environmental Matters • 895 Freedom of Information
Act • 896 Arbitration • 899 Administrative Procedure
Act/Rcxiew or Appeal of Agency Decision • 950 Constitutionality of
State Statutes

V. ORIGIN (I'lacc an "X"inOne BarOnly)

I Original

• 2 Removed from

Proceeding

State Court

• 3 Remanded from
Appellate Court

• 4 Reinstated or
Reopened

n 5 Transferred from
Another District
(spi'dfy)

• 6 MultidisU-ict
Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cUeJurisdicllonal statutes unless diversity):
15 U.S.C.S 1071(b)(1)
VI. CAUSE OF ACTION Brief description of cause: Judicial review of TTAB decision

VII. REQUESTED IN • CHECK IF fHIS IS A CLASS ACTION

DEMAND S

CHECK YES only if demanded in complaint;

COMPLAINT:

UNDER RULE 23. F.R.Cv.P.

JURY DEMAND: • Yes H No

VIIL RELATED CASE(S)

IF ANY

(See instnictions):

JUDGE

DOCKET NUMBER

DATE
08/14/2014
FOR OFFICE USE ONLY

SIGNATURE OE

CORD

RECEIPT a

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case 1:14-cv-01043-GBL-IDD Document 1-7 Filed 08/14/14 Page 2 of 2 PageID# 43
JS44 Reverse (Rev. 12/12) .
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil coversheetand the information contained herein neither replaces norsupplements thefilings andservice of pleading or otherpapers as required by law, except as provided by local rules of court. This form, approved by theJudicial Conference of the United States in September 1974, is required for the use of the Clerkof Courtfor the purpose of initiating the civildocket sheet. Consequently, a civilcoversheet is submitted to the Clerkof Court for each civil complaint filed. The attorneyfilinga case shouldcomplete the form as follows:
I.(a) PlaintifTs-Defendants. Enter names (last, first, middle initial) of plaintiff anddefendant. If the plaintifTor defendant is a government agency, use only theliill name or standard abbreviations. If theplaintiff or defendant is an official within a government agency, identify first theagency and then the official, giving both name and title.
(b) County of Residence. Foreachcivil casefiled, except U.S. plaintiff cases, enterthe name of thecounty where the firstlisted plaintiff resides at the time of filing. In U.S. plaintiffcase.s. enter the name of the county in which the first listed defendant resides at the timeof filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" Is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name,address, telephonenumber, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".
II. Jurisdiction. The basisof jurisdiction is set forth underRule8(a), F.R.Cv.P., which requires thatjurisdictions be shown in pleadings. Placean "X" in one of the boxes. If there is more than one basisofjurisdiction, precedence is given in the ordershown below. UnitedStates plaintiff. (1) Jurisdiction basedon 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United Statesare included here. UnitedStatesdefendant. (2) When the plaintifl is suing the UnitedStates, its officersor agencies, placean "X" Inthis box. Federal question. (3) This refers to suits under 28 U.S.C. 1331,wherejurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the UnitedStates. In caseswherethe U.S. is a party,the U.S. plaintiffor defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332,where parties are citizens of different states. WhenBox 4 is checked, the citizenship of the different parties must be checked. (SeeSection III below; NOTE: federal question actionstake precedence over diversity
cases.)
III. Residence(citizenship)of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Markthis section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) In the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.
V. Origin. Place an "X" in one of the six boxes. Original Proceedings. (1) Cases which originate In the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C.. Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstatedor reopened In the district court. Use the reopeningdate as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box Is checked, do not check (5) above.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" In this box if you are filing a class action under Rule 23, F.R.Cv.P Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jur>'Demand. Check the appropriate box to Indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, If any. If there are related pending cases, in.sertthe docket numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

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 Case 1:14-cv-01043-GBL-IDD Document 18 Filed 09/22/14 Page 1 of 3 PageID# 76

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

PRO-FOOTBALL, INC.,
Plaintiff,
v.
AMANDA BLACKHORSE, MARCUS BRIGGS-CLOUD, PHILLIP GOVER, JILLIAN PAPPAN and COURTNEY TSOTIGH,
Defendants.

Civil Action No.: 1:14-cv-1043-GBL-IDD

DEFENDANTS’ MOTION TO DISMISS COME NOW Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan, and Courtney Tsotigh, by and through counsel, and hereby respectfully move this Court for an order dismissing the Complaint filed by Plaintiff Pro-Football, Inc. pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The Complaint should be dismissed on the grounds that (1) Defendants are not “parties in interest” who may be sued under 15 U.S.C. § 1071(b)(4) and (2) this Court lacks subject matter jurisdiction because there is no “Case or Controversy” under Article III of the Constitution. In support of this Motion, Defendants respectfully direct the Court’s attention to the Memorandum of Law in Support of Defendants’ Motion to Dismiss, filed with this Motion. WHEREFORE, for the reasons above and provided in Defendants’ Memorandum, Defendants respectfully pray that the Court grant this Motion, enter the attached Proposed Order dismissing the Complaint with prejudice, and to award to Defendants such other and further relief as the Court deems to be just and proper.

Case 1:14-cv-01043-GBL-IDD Document 18 Filed 09/22/14 Page 2 of 3 PageID# 77

Dated: September 22, 2014

Respectfully submitted,
/s/ Jeffrey J. Lopez Jesse A. Witten (pro hac vice pending) Jeffrey J. Lopez (Va. Bar No. 51058) Adam Scott Kunz (VA Bar No. 84073) Tore T. Debella (VA Bar No. 82037) Jennifer Criss (VA Bar No. 86143) DRINKER BIDDLE & REATH LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 Telephone: (202) 842-8800 Facsimile: (202) 842-8465 Email: Jesse.Witten@dbr.com
Jeffrey.Lopez@dbr.com Adam.Kunz@dbr.com Tore.DeBella@dbr.com Jennifer.Criss@dbr.com
Counsel for Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh

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Case 1:14-cv-01043-GBL-IDD Document 18 Filed 09/22/14 Page 3 of 3 PageID# 78

CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of September, 2014, the foregoing pleading or paper was filed and served electronically by the Court’s CM/ECF system upon all registered users in this action:

/s/ Jeffrey J. Lopez

Jeffrey J. Lopez

DRINKER BIDDLE & REATH LLP

1500 K Street, N.W., Suite 1100

Washington, D.C. 20005-1209

Telephone: (202) 842-8800

Facsimile: (202) 842-8465

Email:

Jeffrey.Lopez@dbr.com

Counsel for Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh

CERTIFICATE OF CONFERENCE I hereby certify that on this 22nd day of September, 2014, the parties met and conferred with regard to the present motion:

/s/ Jeffrey J. Lopez

Jeffrey J. Lopez

DRINKER BIDDLE & REATH LLP

1500 K Street, N.W., Suite 1100

Washington, D.C. 20005-1209

Telephone: (202) 842-8800

Facsimile: (202) 842-8465

Email:

Jeffrey.Lopez@dbr.com

Counsel for Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh

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Case 1:14-cv-01043-GBL-IDD Document 19 Filed 09/22/14 Page 1 of 19 PageID# 81

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

PRO-FOOTBALL, INC.,
Plaintiff,
v.
AMANDA BLACKHORSE, MARCUS BRIGGS-CLOUD, PHILLIP GOVER, JILLIAN PAPPAN and COURTNEY TSOTIGH,
Defendants.

Civil Action No.: 1:14-cv-1043-GBL-IDD

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS
In June 2014, the Trademark Trial and Appeal Board (“TTAB”), a component of the
United States Patent and Trademark Office (“USPTO”), decided that the USPTO acted contrary
to federal trademark law when it issued six trademark registrations to Plaintiff Pro-Football, Inc.
(“PFI”), the owner of the Washington NFL team. The TTAB concluded that the marks were not
eligible for registration under 15 U.S.C. § 1502(a) because they contain matter that “may
disparage” Native Americans.1 Accordingly, the TTAB scheduled the registrations for
1 The trademarks contain the term “redskin,” an ethnic slur used to refer to Native Americans. See, e.g., The American Heritage Dictionary of the English Language, http://ahdictionary.com/word/search.html?q=redskin (accessed September 17, 2014) (“Offensive Slang. Used as a disparaging term for a Native American”); Merriam-Webster Online Dictionary, http://merriam-webster.com/dictionary/redskin (accessed September 17, 2014) (“usually offensive: American Indian”); Dictionary.com Unabridged. Based on the Random House Dictionary, http://dictionary.reference.com/ browse/redskin (accessed September 17, 2014) (“Slang: Often disparaging and offensive. A North American Indian”); Oxford
(Continued)

Case 1:14-cv-01043-GBL-IDD Document 19 Filed 09/22/14 Page 2 of 19 PageID# 82
cancellation by the Director of the USPTO. The TTAB acted after five Native American individuals, the defendants in this action (“Blackhorse Defendants”), petitioned it to cancel the registrations.
PFI could have appealed to the Federal Circuit, where the USPTO could have defended the TTAB decision, but PFI declined to do so. See 15 U.S.C. § 1071(a). Instead, PFI filed this civil action against the Blackhorse Defendants, under 15 U.S.C. § 1071(b)(4).
PFI’s dispute, however, is with the USPTO, not with the Blackhorse Defendants. PFI alleges that the TTAB – not the Blackhorse Defendants – acted unlawfully by scheduling its registrations for cancellation. Likewise, PFI seeks relief only against the USPTO – a declaratory judgment to prevent the Director of the USPTO from carrying out the cancellations. PFI alleges no conduct on the part of the Blackhorse Defendants other than filing a petition with the TTAB. It does not allege that they acted unlawfully or tortiously. Nor does PFI allege that the Blackhorse Defendants claim any interest in PFI’s trademarks or in similar trademarks. This lawsuit will not affect the legal rights or obligations of the Blackhorse Defendants in any way. As a result, the Complaint should be dismissed for the following two reasons:
• The Blackhorse Defendants are not “parties in interest” who may be sued under 15 U.S.C. § 1071(b)(4); and
(Continued)
Dictionaries, http://oxforddictionaries.com/us/ definition/american_english/redskin (accessed September 17, 2014)(“dated, offensive: An American Indian”); The New Lexicon Webster’s Dictionary of the English Language (vol. 2, Lexicon Publications, Inc., 2004) (“North American Indian (usually construed as offensive)”); http://vocabulary.com/dictionary/Redskin (accessed September 17, 2014) (“(slang) offensive term for Native Americans”); http://education.yahoo.com/reference/ dictionary/entry/redskin (accessed September 17, 2014) (“Offensive Slang. Used as a disparaging term for a Native American”).
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• This Court lacks subject matter jurisdiction because there is no “Case or Controversy” under Article III of the Constitution as between PFI and the Blackhorse Defendants. BACKGROUND A. Trademark Registrations and the USPTO/TTAB A trademark is a word, name, symbol or combination thereof that is used in commerce to
identify and distinguish the goods or services of one entity from the goods or services of others. 15 U.S.C. § 1127; Microstrategy, Inc. v. Motorola, Inc., 245 F.3d 335, 341 (4th Cir. 2001). Trademark rights arise from use of a mark in commerce; government action is not required to create protectable rights. See id.; see also Virginia Polytechnic Inst. v. Hokie Real Estate, 813 F. Supp. 2d 745, 756 (W.D. Va. 2011).
The Lanham Act, 15 U.S.C. §§ 1501 et seq., establishes a mechanism for owners of trademarks to obtain federal registration for their marks. Registration creates certain evidentiary presumptions and additional remedies in trademark enforcement actions, among other benefits, that are not available for unregistered trademarks. See Complaint (“Compl.”) §§ 40-48.2 To be eligible for registration, a trademark must satisfy the criteria of Section 2 of the Lanham Act, 15 U.S.C. § 1052. These criteria include, among others, that the mark not consist of merely descriptive or generic matter, not comprise wholly functional matter, not so resemble a third
2 The benefits of registering a mark include: (i) registration serves as prima facie evidence of the validity of a mark, and of the registrant’s ownership of and exclusive right to use the mark (15 U.S.C. §§ 1057(b), 1115(a)) and after five years, these presumptions become “incontestable” (id. §§ 1065, 1115(b)); (ii) in a federal infringement action, the owner of a registered mark may be able to recover treble profits and attorneys’ fees (id. § 1117); (iii) registration of a mark is a factor to consider in whether a mark is “famous” and therefore enjoys protection under the Lanham Act’s anti-dilution provision (id. § 1125(c)); (iv) a registration may be filed with the U.S. Customs Service to prevent importation of infringing foreign goods (id. § 1124); and (v) the owner of a registered trademark can use the ® symbol (id. § 1111).
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party’s mark as to likely cause consumer confusion, and – as relevant here – not contain matter that “may disparage” persons or “bring them into contempt or disrepute.” 15 U.S.C. § 1052.
A trademark owner seeking registration must submit an application to the USPTO, which is reviewed by a USPTO examining attorney. 15 U.S.C. § 1051. The examining attorney is required to refuse registration of applications that do not meet the registration criteria of 15 U.S.C. § 1052. See 15 U.S.C. § 1062(b).
If an examining attorney refuses an application, the applicant may ask the agency to reconsider by appealing to the TTAB. See 15 U.S.C. § 1070; Trademark Manual of Examining Procedure (“TMEP”) §§ 705, 714, 715.03.3 As noted, the TTAB is a component of the USPTO, and consists of the Director of the USPTO, the Commissioner for Patents, the Commissioner for Trademarks, and administrative judges appointed by the Director. 15 U.S.C. § 1067(b). The TTAB sits in three-member panels to make its decisions. 37 C.F.R. §§ 2.129(a) & 2.142(e)(1).
The Lanham Act also creates a process for competitors and others to ask the USPTO to review an examining attorney’s decision to issue a registration that they believe is contrary to 15 U.S.C. § 1052. For example, after the USPTO publishes notice (under 15 U.S.C. § 1062(a)) that a trademark has been approved for registration by an examining attorney but before the registration is final, “[a]ny person who believes he would be damaged by the registration” may file an opposition to prevent the registration from being issued. 15 U.S.C. § 1063. Likewise – as occurred here – “any person who believes that he is or will be damaged” by a registration that has already been issued may petition the USPTO to cancel the registration. 15 U.S.C. § 1064. The Lanham Act provides that the TTAB shall review oppositions and petitions to cancel
3 The TMEP is available on the USPTO’s web site, www.uspto.gov.
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Case 1:14-cv-01043-GBL-IDD Document 19 Filed 09/22/14 Page 5 of 19 PageID# 85
registrations on behalf of the USPTO. 15 U.S.C. § 1067(a) (“In every case of … opposition to registration … or application to cancel the registration of a mark, the Director [of the USPTO] shall give notice to all parties and shall direct a Trademark Trial and Appeal Board to determine and decide the respective rights of registration.”).
B. The TTAB Decides That The USPTO Must Cancel PFI’s Registrations Because Its Marks Are Disparaging.
Between 1967 and 1990, the USPTO granted registrations to six trademarks owned by PFI that contain the term “Redskins” or a derivation of that term. Compl. ¶ 21. In 1992, pursuant to 15 U.S.C. § 1064, Suzan Shown Harjo and six other Native American leaders filed a petition with the TTAB to cancel the registrations. Id. ¶ 16. In 1999, after reviewing the evidence submitted by PFI and the Harjo petitioners, the TTAB decided that the USPTO should never have issued the registrations in the first place because, contrary to 15 U.S.C. § 1052, PFI’s trademarks contain matter (i.e., the term “redskins”) that “may disparage” Native Americans or “bring them into contempt or disrepute.” Harjo v Pro-Football, Inc., 50 U.S.P.Q.2d 1705, 1999 WL 375907, at *48 (T.T.A.B. 1999); Compl. ¶ 17.
PFI then filed a civil action in the United States District Court for the District of Columbia, challenging the TTAB’s Harjo decision. The Harjo federal litigation featured two trips to the D.C. Circuit, which ultimately held that the petition was barred by laches because the Harjo petitioners waited too long after turning 18 years old to file their petition. See ProFootball, Inc. v. Harjo, 415 F.3d 44, 49-50 (D.C. Cir. 2005) (holding that Harjo petition was barred by laches as to six petitioners and remanding for further consideration of laches as to the remaining petitioner); Pro-Football, Inc. v. Harjo, 565 F.3d 880 (D.C. Cir. 2009) (final petitioner also subject to laches), cert. denied, 558 U.S. 1025 (2009); Compl. ¶¶ 19, 25.
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In 2006, while the Harjo federal litigation was pending, five younger Native Americans - Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh (the “Blackhorse Defendants”)4 – filed a new petition with the TTAB to cancel PFI’s registrations, Blackhorse et al. v. Pro-Football, Inc., 111 U.S.P.Q.2d 1080, 2014 WL 2757516 (T.T.A.B. 2014). The TTAB suspended action on Blackhorse until the federal proceedings in Harjo concluded. Compl. ¶ 22, 27.
On June 18, 2014, in Blackhorse, “[f]ollowing several years of discovery, motion practice, submissions of evidence, final briefing, and oral argument,” the TTAB once again concluded that the USPTO acted contrary to law between 1967 and 1990 when it granted registrations to PFI for the six trademarks that contain “Redskins” or a derivative. Compl. ¶ 33. As it had in 1999 in Harjo, the TTAB found that “redskin” was an ethnic slur during the relevant time periods, and that the trademarks were ineligible for registration because they contain matter that “may disparage” Native Americans or “bring them into contempt or disrepute.” Blackhorse, 111 U.S.P.Q.2d 1080, 2014 WL 2756516, at *1 (T.T.A.B. 2014). Accordingly, the TTAB scheduled the registrations for cancellation by the USPTO. Compl. ¶ 33.
PFI’s trademark registrations have not yet been cancelled. Cancellation requires a separate action by the Director of the USPTO. The Director does not cancel a registration until
4 Ms. Blackhorse is a member of the Navajo Nation; Mr. Briggs-Cloud is a member of the Muscogee Nation of Florida; Mr. Gover is a member of the Paiute Indian Tribe of Utah; Ms. Pappan is a member of the Omaha Tribe of Macy, Nebraska; and Ms. Tsotigh is a member of the Kiowa Tribe of Oklahoma.
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Case 1:14-cv-01043-GBL-IDD Document 19 Filed 09/22/14 Page 7 of 19 PageID# 87
any ensuing federal action has been resolved (or until after the time to file a federal action has expired).5
PFI contends that if the Director cancels its registrations, it will lose the benefits of federal registration. See Compl. ¶¶ 40-48. PFI does not contend that it will forfeit its common law rights to bring infringement and other enforcement actions to protect its unregistered trademarks after its federal registrations are cancelled. See id.6
C. PFI Files This Action. PFI had a right to appeal the TTAB decision to the United States Court of Appeals for the Federal Circuit, but opted not to do so. See 15 U.S.C. § 1071(a). Instead, on August 14, 2014, PFI filed this civil action, purportedly pursuant to 15 U.S.C. § 1071(b). Compl. § 2. Under § 1071(b), following a TTAB proceeding that involved adverse parties, a party “dissatisfied” with the TTAB decision may file a new civil action against “the party in interest as shown by the records of the United States Patent and Trademark Office.” 15 U.S.C. §§ 1071(b)(1) &(4). An action under § 1071(b) is not an appeal, but a new civil action in which the parties may introduce evidence with the district court conducting a de novo trial on the same issues raised in the TTAB proceeding. Compl. ¶ 56; see also Swatch AG v. Beehive Wholesale, LLC, 739 F.3d 150, 156 (4th Cir. 2014) (explaining that actions under 15 U.S.C. §
5 See Trademark Trial and Appeal Board Manual of Procedure (“TBMP”) § 806, available at www.uspto.gov. 6 To the contrary, according to a statement issued by PFI, the TTAB decision “simply addresses the team’s federal trademark registrations and the team will continue to own and be able to protect its marks without the registrations.” Bart Hubbach, “Trademark Cancellation a Major Blow to Redskins Nickname,” New York Post (June 18, 2014), available at http://nypost.com/2014/06/18/trademark-cancellation-a-crushing-blow-to-redskins-nickname.
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1071(b) are not appeals, but are new civil actions). The Director is not made a defendant to an action under 15 U.S.C. § 1071(b)(4).7
Here, PFI does not allege any wrongdoing on the part of the Blackhorse Defendants. PFI does not allege that they breached a contract, committed a tort, or violated any law. Instead, PFI’s allegations are directed solely against the USPTO and PFI seeks relief only against the USPTO:
• Counts I and II allege that the cancellation by the USPTO would be contrary to the Lanham Act because the trademarks allegedly do not disparage Native Americans or bring them into contempt or disrepute. Compl. ¶¶ 130-33.
• Counts III and IV allege that cancellation by the USPTO would violate the Constitution either because 15 U.S.C. § 1502(a) violates the First Amendment or because it is unduly vague. Id. ¶¶ 134-39.
• Counts V and VI allege that cancellation by the USPTO would violate the Fifth Amendment either as a deprivation of property without due process or as a taking without compensation. Id. ¶¶ 140-46.
• Count VII alleges that cancellation by the USPTO would violate the Lanham Act because the TTAB should not have entertained the Blackhorse petition because it was allegedly not timely filed. Id. ¶¶ 147-48.
For relief, PFI seeks declaratory judgment that the TTAB’s action was either contrary to the Lanham Act or unconstitutional, and an order preventing the USPTO from carrying out the scheduled cancellation. Id. at 34-35 (Prayer For Relief).
7 In addition, following TTAB decisions that do not involve adverse parties, a “dissatisfied” party may file a civil action against the Director of the USPTO. See 15 U.S.C. § 1701(b)(1), (3). This might occur, for example, if the TTAB affirms the decision of an examining attorney to refuse registration of a mark. See, e.g., Shammas v. Rea, 978 F. Supp. 2d 599 (E.D. Va. 2013).
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Case 1:14-cv-01043-GBL-IDD Document 19 Filed 09/22/14 Page 9 of 19 PageID# 89
ARGUMENT Although PFI and the Blackhorse Defendants sharply disagree over the USPTO’s decision to cancel PFI’s registrations, they have no justiciable dispute. PFI does not allege a trademark ownership or infringement dispute or assert any other cause of action against the Blackhorse Defendants. Rather, PFI’s dispute is with the USPTO. PFI alleges that it is the USPTO – not the Blackhorse Defendants – that violated the Lanham Act and the Constitution, and the relief PFI seeks is to prevent USPTO action. PFI seeks no relief against the Blackhorse Defendants; this action will not affect any of the Blackhorse Defendants’ legal or economic interests, regardless of its outcome. As a result, this action should be dismissed because the Blackhorse Defendants are not “parties in interest” against whom an action may be filed under 15 U.S.C. § 1071(b)(4). In addition, there is no Article III “Case or Controversy” between PFI and the Blackhorse Defendants and this action should be dismissed for lack of jurisdiction. PFI could have avoided these problems by appealing to the Federal Circuit under 15 U.S.C. § 1071(a), where the USPTO could have defended its decision on appeal. See, e.g., In re Bose Corp., 180 F.3d 1240, 1243 (Fed. Cir. 2009). PFI apparently made a strategic decision not to appeal to the Federal Circuit, presumably because that Court has already rejected PFI’s Constitutional arguments. See In re Fox, 702 F.3d 633, 634 (Fed. Cir. 2012) (“Because a refusal has no bearing on the applicant’s ability to use the mark, we have held that [15 U.S.C.] § 1052(a) does not implicate the First Amendment rights of trademark applicants”); Georgalis v. U.S. Patent and Trademark Office, 296 F. Appx. 14, 16 (Fed. Cir. 2008) (holding that USPTO’s cancellation and refusal to reinstate patent was not a Taking under the Fifth Amendment); In re Boulevard Entm’t, Inc., 334 F.3d 1336, 1343 (Fed. Cir. 2003) (rejecting First Amendment challenge); In re Mavety Media Gr. Ltd., 33 F.3d 1367, 1374 (Fed. Cir. 1994) (same); In re
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McGinley, 660 F.2d 481, 484-85 (C.C.P.A. 1981) (rejecting argument that “scandalous” as used in 15 U.S.C. § 1052(a) was unconstitutionally vague).
Whatever PFI’s reasons for avoiding the Federal Circuit, this action should be dismissed. I. The Complaint Should Be Dismissed Because The Defendants Are Not
“Parties In Interest” Under 15 U.S.C. § 1071(b)(4). This action should be dismissed for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or, alternatively, for failure to state a claim under Rule 12(b)(6). An action under 15 U.S.C. § 1071(b)(4) may be brought only against the “party in interest as shown by the records of the United States Patent and Trademark Office,” but the Blackhorse Defendants are not “parties in interest.” Indeed, the Blackhorse Defendants have no economic or legal interest in the subject matter of this lawsuit. The Court’s ruling in this case will not affect any of their economic or legal rights or obligations. They stand to gain nothing or lose nothing. PFI has not alleged that the Blackhorse Defendants claim an ownership interest in PFI’s trademarks or in any other potentially infringing trademarks. Although the Blackhorse Defendants might be pleased or disappointed with the outcome of this case, that does not make them “parties in interest.” A patent case, 3V, Inc. v. CIBA Specialty Chems. Corp., 587 F. Supp. 2d 641 (D. Del. 2008), illustrates that the Blackhorse Defendants are not “parties in interest.” See Swatch AG v. Beehive Wholesale, LLC, 739 F.3d 150, 155-56 (4th Cir. 2014) (using case law interpreting patent law to interpret similar provisions of the Lanham Act). In 3V, the Board of Patent Appeals and Interference (now known as the Patent Trial and Appeals Board) decided that CIBA was the first to invent an invention claimed in both CIBA’s and 3V’s patents, but that certain claims in CIBA’s patent were unpatentable. Id. at 642. CIBA and 3V were both “dissatisfied”
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with different aspects of the Patent Board’s decisions, and each brought action under 35 U.S.C. § 146, the patent parallel to 15 U.S.C. § 1071(b)(4).
3V subsequently disclaimed all ownership rights to its potentially conflicting patent and moved to dismiss; CIBA opposed dismissal because it continued to seek reversal of the Patent Board’s ruling that some of its claims were unpatentable and wanted a defendant against whom it could litigate this issue. The Court, however, dismissed the action for lack of a Case or Controversy under Article III, as a result of 3V’s disclaimer of interest in the patent. In its decision, the Court explained that to be a “party in interest” under 35 U.S.C. § 146, a party must have an actual economic interest in the patent or an allegedly infringing patent:
[35 U.S.C.] § 146 provides that ‘suit may be instituted against the party in interest’…. Referring to parties “in interest,” the language of the statute suggests that parties to a § 146 action must have some articulable reason to participate in the dispute…. 3V’s disclaimer has resulted in dedication of all interest in the patent to the public. Thus, there is no possibility that 3V retained some unknown equitable interest that would justify it remaining in the case as a ‘proper’ party…. Id. at 647. Likewise, although PFI seeks reversal of the TTAB’s ruling that its trademarks are unregistrable, it cannot maintain an action under 15 U.S.C. § 1071(b)(4) against the Blackhorse Defendants who have no actual or alleged economic or legal interest in the trademarks. See also Consumer Watchdog v. Wis. Alumni Research Found., 753 F.3d 1258 (Fed. Cir. 2014) (holding that consumer group, with no economic or legal interest in disputed patent, lacked a sufficient interest to litigate in federal court the PTAB’s decision not to invalidate a patent); Nachtman v. Toulmin, 196 F. Supp. 367, 369 (S.D. Ohio 1961) (holding that “party in interest as shown by the records of the United States Patent and Trademark Office” refers to the owner or assignee of the patent at issue or a similar patent, and not the adverse party to proceedings before the Board of Patent Interferences (precursor to the PTAB)).
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Similarly, in Hans C. Bick, Inc. v. Watson, 253 F.2d 344 (D.C. Cir. 1958), the Court found that parties with no interest in a trademark whose registration was cancelled were not “parties in interest” even though they had filed the petition to cancel. In Bick, three companies successfully petitioned the Commissioner of Patents to cancel the registration of a certain trademark-owner (Bick). Dissatisfied with the Commissioner’s decision, Bick filed an action in district court against the Commissioner under 35 U.S.C. § 145 (1952), the precursor to currentday 15 U.S.C. § 1071(b)(3).8 Bick, 253 F.2d at 344. The Commissioner moved to dismiss, arguing that Bick should instead have brought action against the cancellation petitioners under 35 U.S.C. § 146 (1952), the precursor to current-day 15 U.S.C. § 1071(b)(4). Id. at 345.
The D.C. Circuit disagreed. It held that Bick could not have brought action against the cancellation petitioners because they were not a “party in interest” under 35 U.S.C. § 146 (1952). The Court explained that the dispute over whether Bick’s trademark is eligible for registration is a dispute between Bick and the agency:
[T]he only issue presented by the Commissioner’s decision and the complaint is whether the initial registrations of [Bick’s] mark were erroneously granted as a matter of law…. Such a dispute clearly is primarily between [Bick] and the Commissioner….
8 At the time of Bick, the Lanham Act provided that a party to a cancellation proceeding dissatisfied with a decision by the Commissioner could file an appeal with the Court of Customs and Patents (predecessor to the Federal Circuit) or could file a civil action in district court under 35 U.S.C. §§ 145 and 146 (1952) against either the Commissioner (§ 145) or “the party in interest as shown by the records of the Patent Office at the time of the decision complained of” (§ 146). See 15 U.S.C. § 1071 (1952) (citing and incorporating 35 U.S.C. §§ 145 and 146 (1952) (creating civil action to challenge patent rulings of the Patent Office)). In 1962, Congress struck 15 U.S.C. § 1071 and replaced it with language substantively similar to today’s version. See Pub. Law 87-772 § 12 (1962). Thus, 35 U.S.C. §§ 145 and 146 (1952) are precursors to current 15 U.S.C. § 1071(b).
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Id. at 346. And further, the Court explained, a party dissatisfied with a cancellation decision could bring action under 35 U.S.C. § 146 (1952) (precursor to current 15 U.S.C. § 1071(b)(4)) only against “the party interest,” but the “[t]he petitioners for cancellation have never used or registered [Bick’s] mark or a mark claimed to be similar.” Id. As with the Bick petitioners, the Blackhorse Defendants “have never used or registered [PFI’s] mark or a mark claimed to be similar,” and accordingly are not “parties in interest.”
Ordinarily, the adverse parties in an opposition or cancellation proceeding before the TTAB are two businesses claiming rights to the same or similar trademarks. Thus, when a party dissatisfied with a decision of the TTAB brings actions under 15 U.S.C. § 1071(b)(4), it is usually involved in a dispute with a business that uses a similar trademark, with the parties often joining claims for trademark infringement, unfair competition and other causes of action. See, e.g., Swatch, 739 F.3d at 154 (noting that plaintiff joined claims for trademark infringement and unfair competition against defendant); Zao Odessky Konjatschnyi Zawod v. SIA “Baltmark Invest,” No. 1:12cv515 (JCC/JDD), 2014 WL 785295 (E.D. Va. Feb. 21, 2014) (describing dispute between two claimants to same or similar marks); Vaad L’Hafotzas Sichos, Inc. v. Kehot Publication Soc’y, 935 F. Supp. 2d 595 (E.D.N.Y. 2013) (same); The Coryn Group II, LLC v. O.C. Seacrets, Inc., 868 F. Supp. 2d 468 (D. Md. 2012) (same); Tovaritch Spirits Int’l SA v. Luxco, Inc., No. 4:11CV950JCH, 2012 WL 6652949 (E.D. Mo. Dec. 21, 2012) (same). Under such typical circumstances, it is clear that the other entity using a similar and possibly infringing trademark is a “party in interest.” This case is not the ordinary case. Here, the petition to cancel was not filed by a business with a trademark dispute, but by five individuals who sought cancellation on public interest grounds based on a “sparingly used statutory provision … which is rarely invoked to cancel any registered trademarks….” Compl. ¶ 3.
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Accordingly, under the facts and circumstances of this case, the Blackhorse Defendants are not “parties in interest” under 15 U.S.C. § 1071(b)(4), and the statute therefore does not give PFI the right to file suit against them.9 II. This Court Lacks Jurisdiction Because There Is No “Case or Controversy.”
Even if the Blackhorse Defendants are considered “parties in interest” under 15 U.S.C. § 1071(b)(4), this action should be dismissed because there is no “Case or Controversy” as required for this Court to exercise jurisdiction under Article III of the Constitution. Rather, PFI’s “Case or Controversy” is with the USPTO. As noted, PFI alleges that the USPTO acted unlawfully under the Lanham Act and the Constitution, and PFI seeks declaratory judgment relief directed towards the USPTO only. PFI seeks no relief against the Blackhorse Defendants, and this action does not implicate any legal interests of the Blackhorse Defendants.
“Article III of the Constitution confines the judicial power of federal courts to deciding actual ‘Cases’ or ‘Controversies.’” Hollingsworth v. Perry, 133 S. Ct. 2652, 2656 (2013). Absent a case or controversy, the Court lacks jurisdiction and must dismiss. In a declaratory judgment action such as this one, to satisfy the “actual controversy” requirement, a court must determine “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549
9 Whether PFI’s failure to file suit against a “party in interest” is a jurisdictional failure or a failure to state a claim, the result is the same, dismissal. See Morrison v. Nat’l Australia Bank, Ltd., 561 U.S. 247, 254 (2010). If viewed as a failure to state a claim, then the following “Case or Controversy” argument should be considered first. See Steel Co. v. Citizens For A Better Environment, 523 U.S. 83, 98-102 (2010) (stating that jurisdictional issues should be considered first in a motion to dismiss).
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U.S. 118, 127 (2007). PFI bears “the burden of establishing the existence of an actual case or controversy.” Cardinal Chem. Co. v. Morton Int’l, 508 U.S. 83, 95 (1993).
To satisfy this burden, PFI must show that “the dispute ‘is definite and concrete, touching the legal relations of parties having adverse legal interests.’” White v. Nat’l Union Fire Ins. Co. of Pittsburgh, 913 F.2d 165, 167 (4th Cir. 1990) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937)) (emphasis added). “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.” Diamond v. Charles, 476 U.S. 54, 62 (1986). Both parties must have a judicially cognizable interest in the disagreement. See id. at 56, 64-69 (pediatrician lacked sufficient interest to defend constitutionality of state anti-abortion laws). Here, the dispute does not touch upon the “legal relations” of PFI and the Blackhorse Defendants, and they do not have “adverse legal interests.” White, 913 F.2d at 167. PFI and the Blackhorse Defendants have no legal relations with one another, just a disagreement as to whether PFI’s trademarks may disparage Native Americans.
The Federal Circuit’s recent decision in Consumer Watchdog v. Wis. Alumni Research Found., 753 F.3d 1258 (Fed. Cir. 2014) (“WARF”), makes plain that this action does not present a case or controversy. In WARF, a consumer group requested reexamination by the Patent Trial and Appeal Board of a patent for embryonic stem cells owned by the Wisconsin Alumni Research Foundation, seeking to cancel the patent on grounds that it was not patentable (analogous to the Blackhorse TTAB petition to cancel PFI’s registrations as ineligible for registration). The PTAB disagreed with the consumer group, finding patentability. See 753 F.3d. at 1259. The consumer group appealed to the Federal Circuit, which then dismissed the appeal for lack of jurisdiction. The Court ruled that there was no Article III case or controversy due to the consumer group’s lack of legal or economic interest in the patent. See id. at 1261-62.
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The consumer group did “not allege that it is engaged in any activity involving human embryonic stems cells that could form the basis for an infringement claim. It [did] not allege that it intends to engage in such activity. Nor [did] it allege that it is an actual or prospective licensee, or that it has any other connection to the … patent or the claimed subject matter.” Id. at 1261. Rather, the consumer group raised the issue with the PTAB solely on public interest grounds, concerned that the patent could deter scientific and medical stem cell research. Id. at 1260. Accordingly, the Federal Circuit ruled that consumer group did not suffer a sufficient injury to a legally protectable interest for it to have standing to appeal. See id. at 1261-63.
Just as the consumer group in WARF sought cancellation of a patent on public interest grounds, the Blackhorse Defendants sought to cancel trademark registrations for public interest reasons. The Blackhorse Defendants’ legal and economic interests are not affected by the registration cancellations and they will not be affected by this litigation. Moreover, it makes no difference that the consumer group in WARF was seeking federal court review, while the Blackhorse Defendants have been hauled involuntarily into Court. There is no “Case or Controversy” if a party lacks a stake in the outcome, regardless of which side of the “v.” it is found. If there is no case or controversy when Party “A” sues Party “B” over a given matter, there is no case or controversy if Party “B” were to sue Party “A” over the same matter. Like plaintiffs, defendants must also have a cognizable interest to create a case or controversy. “Standing to sue or defend is an aspect of the case or controversy requirement.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). And, “standing to defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess a direct stake in the outcome.” Id. (internal quotation omitted); see also Diamond, 476 U.S. at 56 (“Because a private party whose own conduct is neither implicated nor threatened by a criminal
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statute has no judicially cognizable interest in the statute’s defense, we dismiss the appeal for want of jurisdiction”).
Indeed, in 3V, Inc. v. CIBA Specialty Chems. Corp., 587 F. Supp. 2d 641 (D. Del. 2008), the parties were aligned in the same way as PFI and the Blackhorse Defendants, and the Court dismissed due to lack of a Case or Controversy. As summarized above, in 3V, the Board of Patent Appeals and Interference (now the PTAB) decided that CIBA was the first to invent an invention claimed in both CIBA’s and 3V’s patents, but that certain claims in CIBA’s patent were unpatentable. Id. at 642. 3V and CIBA then filed action against each other under 35 U.S.C. § 146 seeking to overturn the parts of the Patent Board’s decision with which they were “dissatisfied.” Thereafter, 3V disclaimed all interests in its allegedly infringing patent and moved to dismiss for lack of a Case or Controversy. CIBA opposed the motion to dismiss because, although there was no longer a dispute as to priority of invention, CIBA continued to want to litigate the Patent Board’s decision regarding patentability. See id. at 643-47.
The Court held that, with 3V’s disclaimer, there was no case or controversy and dismissed: “CIBA fails to explain why 3V, or anyone else, should continue to oppose CIBA in its efforts to demonstrate [patentability], or what 3V’s ‘legally cognizable’ interest is in this issue.” Id. at 645. Further, “[a]t this stage, CIBA merely asks the Court to correct what it perceives to be an erroneous decision on the part of the Board, which is not a party to any of the actions before the Court.” Id. at 646. The Blackhorse Defendants are in the same position as 3V. They have no interest in any potentially infringing trademark, and therefore lack a cognizable legal interest as to the registrability of PFI’s trademarks.
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Accordingly, even if the Court holds that the Blackhorse Defendants are “parties in interest” under 15 U.S.C. § 1071(b)(4), it should dismiss this action for lack of jurisdiction because there is no case or controversy under Article III.
CONCLUSION For the foregoing reasons, Defendants’ Motion To Dismiss should be granted, and the Complaint should be dismissed.

Dated: September 22, 2014.

Respectfully submitted,
/s/ Jeffrey J. Lopez Jesse A. Witten (pro hac vice pending) Jeffrey J. Lopez (Va. Bar No. 51058) Adam Scott Kunz (VA Bar No. 84073) Tore T. Debella (VA Bar No. 82037) Jennifer Criss (VA Bar No. 86143) DRINKER BIDDLE & REATH LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 Telephone: (202) 842-8800 Facsimile: (202) 842-8465 Email: Jesse.Witten@dbr.com
Jeffrey.Lopez@dbr.com Adam.Kunz@dbr.com Tore.DeBella@dbr.com Jennifer.Criss@dbr.com
Counsel for Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh

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Case 1:14-cv-01043-GBL-IDD Document 19 Filed 09/22/14 Page 19 of 19 PageID# 99

CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of September, 2014, the foregoing pleading or paper was filed and served electronically by the Court’s CM/ECF system upon all registered users in this action:

/s/ Jeffrey J. Lopez

Jeffrey J. Lopez

DRINKER BIDDLE & REATH LLP

1500 K Street, N.W., Suite 1100

Washington, D.C. 20005-1209

Telephone: (202) 842-8800

Facsimile: (202) 842-8465

Email:

Jeffrey.Lopez@dbr.com

Counsel for Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh

ACTIVE/ 76922754.3

 
 Case 1:14-cv-01043-GBL-IDD Document 40 Filed 11/25/14 Page 1 of 17 PageID# 343

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION
PRO-FOOTBALL, INC.,
Plaintiff,

v.
AMANDA BLACKHORSE, et al.

Case No. l:14-cv-01043-GBL-IDD

Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants Amanda Blackhorse, Marcus Briggs-
Cloud, Philip Grover, Jillian Pappan and Courtney Tsotigh's ("Defendants") Motion to Dismiss
(Doc. 18). This action involves a review of the Trademark Trial and Appeal Board ("TTAB")'s
cancellation of Plaintiff Pro-Football Inc. ("Pro-Football")'s REDSKINS trademarks on the
grounds that they are scandalous, disparaging, and may bring Native Americans into contempt or disrepute in violation of the Lanham Act. Defendants move to dismiss the Complaint.
Specifically, Defendants allege that there is no judicially cognizable dispute between them and Pro-Football because Defendants do not have a direct stake in the outcome ofthe case. Further, Defendants allege that they are not "parties in interest" because they have no actual economic or
legal interest in the marks. The issues before the Court are (i) whether a "case or controversy" exists between Pro-Football and Defendants and (ii) whether Defendants constitute "parties in
interest" under 15 U.S.C. § 1071 giving the Court subject matter jurisdiction over the case. The Court denies Defendants' Motion to Dismiss for four reasons. First, the legitimate
interests of the parties in the registration, or cancellation, of the mark are sufficient to establish

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jurisdiction under Article III of the Constitution. Second, 15 U.S.C. § 1071 provides review of a TTAB's decision in the Federal Circuit or a United States District Court, and the alleged harm or controversies decided in such administrative proceedings must carry over into the review of the proceeding. Third, Defendants' cancellation petition demonstrated that they have a sufficient interest in the registration to constitute § 1071 "adverse parties" and "parties in interest." Finally, the prior proceeding before the TTAB was an inter partes proceeding where Defendants were the sole adverse parties. Therefore, the Court finds that a judicially cognizable dispute exists between Pro-Football and Defendants and 15 U.S.C. § 1071 provides the Court with
jurisdiction over this case.

I.

BACKGROUND

The team name, "REDSKINS" has been a part of the National Football League franchise

for over eighty years. (Doc. 1 at 10.) George Preston purchased the team now known as the

REDSKINS in 1932. (Id.) When the team adopted the name REDSKINS, there were four

players on the team that identified as Native Americans. (Id. at 11.) Since 1933, the

REDSKINS marks have had a longstanding fame and recognition within the industry and

amongst the public. (Id.) This recognition is evidenced by the team following through various

media outlets and widely sold team paraphernalia. (Id.) As a result, the REDSKINS marks are

valuable communicative symbols through which the public identifies the team and its players.

(Id. at 12.)

II.

PROCEDURAL HISTORY

In September 1992, a group of Native American Defendants filed a petition with the

TTAB to cancel the REDSKINS marks on the grounds that they are scandalous, may disparage

Native Americans, and may bring Native Americans into contempt or disrepute in violation of

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the Lanham Act. (Doc. 1 at 6.) On April 2, 1999, the Board canceled the federal registrations for the REDSKINS marks. See Harjo, 1999 WL 375907, at *38-48 (T.T.A.B. 1999). However, the United States District Court for the District of Columbia on September 30, 2003 reversed the TTAB decision because there was insufficient evidence to support the Board's findings. (Doc. 1
at 6-7.) The D.C. Circuit remanded the case back to the district court to determine the facts surrounding the laches defense on July 15, 2005. On August 11, 2006, Defendants filed a petition with the TTAB to cancel the federal registration of the REDSKINS marks on the same grounds as the Harjo petitioners. (Id. at 7.)
On September 26, 2006, Pro-Football filed an answer denying all allegations. (Id. at 8.) Two days later, the Board decided to suspend the proceedings in Blackhorse pending the final disposition of the Harjo case. (Id.) The Harjo court ruled in favor of Pro-Football on June 25, 2008 based on the laches defense on the grounds that the youngest plaintiff improperly delayed
its petition for cancellation. The D.C. Circuit upheld this decision, and the United States Supreme Court denied certiorari on November 16, 2009. (Id.)
The Blackhorse proceedings resumed in March 2010. (Id.) By interlocutory order, the
TTAB decided that it was not empowered to entertain Pro-Football's constitutional defenses.
(Id. at 9.) The Board also made the following rulings: (1) disparagement is measured by a substantial composite of the targeted group and not the public; (2) the time frame for assessing disparagement is the date of issuance of the registration; (3) the standard of proof is preponderance ofthe evidence; and (4) the operative date for calculating laches is the registration date and the court's inquiry must balance the reasonableness ofthe delay with the resulting harm.
(Id. at 10.)

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On June 18, 2014, the TTAB issued a decision scheduling the cancellation of the
registrations for the REDSKINS marks finding that a "substantial composite of Native
Americans found the term REDSKINS to be disparaging" during the requisite time frame. (Id.)
On August 8, 2014, Pro-Football filed a Complaint against Defendants before this Court
seeking a de novo judicial review of the final TTAB decision. (Doc. 1.) The Complaint consists
of the following causes of action:
1. Declaration of Non-Disparagement: Requests a review of the TTAB's ruling that the REDSKINS marks disparage Native Americans in violation of Section 2(a) of the
Lanham Act.
2. Declaration of Non-Contempt or Disrepute: Requests a review of the TTAB's ruling that Pro-Football's REDSKINS marks bring Native Americans into contempt or disrepute in violation of § 1052(a).
3. Declaration that Section 2(a) of the Lanham Act Violates the First Amendment: Requests an analysis as to whether Section 2(a) violates the First Amendment, a legal determination that was not considered by the TTAB.
4. Declaration that Section 2(a) of the Lanham Act is Void for Vagueness: Requests an analysis as to whether Section 2(a) is unconstitutionally void for vagueness.
5. Declaration that the TTAB Order Violates the Due
Process Clause of the Fifth Amendment: Requests a
determination that the TTAB's Order to cancel the REDSKINS marks violates Pro-Football's Fifth
Amendment rights by depriving Pro-Football of long-held
property rights.
6. Declaration that the TTAB Order Violates the Takings Clause of the Fifth Amendment: Requests a
determination that the TTAB's Order to cancel the REDSKINS marks violates the Taking Clause of the Fifth
Amendment because it unconstitutionally takes ProFootball's property withoutjust compensation.

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7. Declaration that Defendant's Petition Was Barred by the Doctrine of Laches: Requests a determination that Defendants' petition before the TTAB was barred by the
doctrine of laches.
(Id. at 32-34.)
Defendants filed their Motion to Dismiss on September 22, 2014. (Doc. 18.) ProFootball filed its Opposition on October 3, 2014, (Doc. 25), and Defendants filed their Reply on
October 9, 2014, (Doc. 27-28.) The Courtheld a hearing on October 31, 2014.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for dismissal when
the court lacks jurisdiction over the subject matter of the action. Fed. R. Civ. P. 12(b)(1). In considering a 12(b)(1) motion to dismiss, the burden is on the plaintiff to prove that federal subject matter jurisdiction is proper. See United States v. Hays, 515 U.S. 737, 743 (1995) (citing
McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)); Adams v. Bain, 697 F.2d
1213, 1219 (4th Cir. 1982). There are two ways in which a defendant may present a 12(b)(1) motion. First, a defendant may attack the complaint on its face when the complaint "fails to
allege facts upon which subject matter jurisdiction may be based." Adams, 697 F.2d at 1219. In such a case, all facts as alleged by the plaintiff are assumed to be true. Id.
Alternatively, a 12(b)(1) motion to dismiss may attack the existence of subject matter jurisdiction over the case apart from the pleadings. See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (citing Mortensen v. First Fed. Sav. &Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)); White v. CMA Constr. Co., 947 F.Supp. 231, 233 (E.D. Va. 1996). In such a case,
the trial court's "very power to hear the case" is at issue. Mortensen, 549 F.2d at 891. The
district court is then free to weigh the evidence to determine the existence of jurisdiction. Adams, 697 F.2d at 1219. "No presumptive truthfulness attaches to the plaintiffs allegations,
5

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and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits ofjurisdictional claims." Mortensen, 549 F.2d at 891.
Section 1071(b) of the Lanham Act "permits a party in a trademark suit to initiate a civil action in the place of an appeal of the TTAB's determination to the Federal Circuit." SwatchAG v. Beehive Wholesale, LLC, 739 F.3d 150, 155 (4th Cir. 2014). The district court will act as a finder of fact and will review the TTAB record in addition to new evidence brought before the court de novo. See Id (citing 15 U.S.C. § 1071(b); Durox Co. v. Duron Paint Mfg. Co., 320 F.2d 882, 883-84 (4th Cir. 1963)). Independent of the PTO's decision, the district court has authority to grant or cancel trademark registrations and may decide any related matters. See Swatch, 739
F.3datl55.
Here, Defendants request that the Court grant their Motion to Dismiss Pro-Football's complaint brought under 15 U.S.C. § 1071(b). Accordingly, the overarching issue is whether, considering the entire record and drawing all reasonable inferences in Pro-Football's favor, the Court should grant Defendants' Motion to Dismiss because Pro-Football cannot bring an action against Defendants who have no commercial interest in the mark under § 1071(b) of the Lanham
Act. IV. ANALYSIS
The Court DENIES Defendants' Motion to Dismiss Pro-Football's Complaint because 15 U.S.C. § 1071(b) plainly affords this Court with Article III jurisdiction over the case and all parties in the case to review and receive new evidence on the TTAB decision.
A. Background on 15 U.S.C. § 1071
The suit before this Court is brought under 15 U.S.C. § 1071, which provides that any
"party to ... a [trademark] cancellation proceeding . . . who is dissatisfied with the decision of
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the Director or Trademark Trial and Appeal Board," may contest this decision in one of two ways. First, the party may "appeal to the United States Court of Appeals for the Federal Circuit." § 1071(a)(1). The Federal Circuit "shall review the decision from which the appeal is taken on the record before the United States Patent and Trademark Office." § 1071(a)(4). Put another way, the Federal Circuit "is limited to the record before the TTAB" when reviewing the case. See Swatch, 888 F. Supp. 2d at 745 (quoting J. Thomas McCarthy, McCarthy on
Trademarks &Unfair Competition § 21:20 (4th ed. 2013) (hereinafter, "McCarthy")). Second, the party "may . . . [seek] remedy by a civil action" by filing in a United States
district court. § 1071(b)(1). The Court "may adjudge that an applicant is entitled to a registration upon the application involved, that a registration should be canceled, or such other matters as the issues in the proceeding require." § 1071(b)(1). "[A] civil action in district court affords 'litigants the option of producing new evidence in a trial court.'" See Swatch, 888 F. Supp. 2d at 745 (quoting McCarthy § 21.20). Remedy by civil action is available to "a person
authorized by subsection (a) of this section to appeal to the [Federal Circuit] . . . unless appeal
hasbeen taken to said [Federal Circuit]." § 1071(b)(1). Congress has amended the Lanham Act many times since its enactment in 1946. As a
result, the relevant language of § 1071 is different today from its original construction. The
Lanham Act has always provided that an applicant for the registration of amark and a party to an interference proceeding, opposition proceeding, cancellation proceeding or a party to an application to register as alawful concurrent user who is unsatisfied with a decision regarding a mark may appeal. 35 U.S.C. § 1071(a); Ch. 540, 66 Stat. 435 (July 5, 1946). In 1946, Section
21 of Title I read as follows:
The Commissioner of Patents shall not be a necessary party to an
inter partes proceeding under Revised Statutes 4915, but he shall
7

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be notified of the filing of the bill by the clerk of the court in which it is filed and the Commissioner shall have the right to intervene in
the action.

Id. (emphasis added). Between the enactment of the Lanham Act in 1946 and the 1962

amendment that enacted the language of today's 15 U.S.C. § 1071, the Patent Act was amended.

The 1952 amendment to the Patent Act laid out the modern structure of patent law; it also

delineated 35 U.S.C. § 145 and § 146, which mirror the language of 15 U.S.C. § 1071(a) and (b).

Referencing civil actions in the case of a patent interference, the 1952 Patent Act Amendment

provided in part:

Such suit may be instituted against the party in interest as shown

by the records of the Patent Office at the time the decision

complained of, but any party in interest may become a party to the

action

The Commissioner shall not be a necessary party but

he shall be notified of the filing of the suit by the clerk of the

court in which it is filed and shall have the right to intervene.

35 U.S.C. § 146 (emphasis added); Pub.L. 82-593, 66 Stat. 792 at 803 (July 19, 1952). Ten

years later, the Lanham Act amendment of 1962 reflected the language of today's 15 U.S.C. §

1071. In reference to remedy by civil action, the statute provides:

The Director shall not be made a party to an inter partes proceeding under this subsection. . . . Where there is an adverse party, such suit may be instituted against the party in interest as shown by the records of the [USPTO] at the time of the decision complained of, but any party in interest may become a party to the
action.

15 U.S.C. § 1071(b)(2) and (4) (emphasis added); Pub.L. 87-772, 76 Stat. 771. The language of

the current Patent Act still provides that the Commissioner shall not be a necessary party.

Defendants contest the Court's Article III jurisdiction over this case on substantive

grounds. Accordingly, this Court is free to weigh the evidence to determine the existence of

jurisdiction over the claims. See Adams, 697 F.2d at 1219. This Court has Article III

Case 1:14-cv-01043-GBL-IDD Document 40 Filed 11/25/14 Page 9 of 17 PageID# 351
jurisdiction over this case and all of its parties for three reasons. First, § 1071(b) provides this Court with statutory jurisdiction over a TTAB determination. Second, the case before this Court is an inter partes proceeding. Third, Defendants' meritorious petition and participation in the TTAB proceeding demonstrates that they are parties in interest pursuant to § 1071(b).
B. Article III Case or Controversy Defendants recognize that § 1071(b) provides this Court with statutory jurisdiction to hear this action. Nonetheless, Defendants contend that Pro-Football's dispute is with the USPTO and not them; and therefore, there is no "case or controversy" for this Court to exercise jurisdiction under Article III of the Constitution. (Doc. 19 at 14.) The Court rejects this assertion and finds that there is a sufficient case or controversy between Defendants and ProFootball for two reasons. First, Pro-Football's successful petition for cancellation sufficiently constitutes Article III standing. Second, Defendants' personal stake in the outcome of this case sufficiently establishes a case or controversy between the parties. First, Defendants have demonstrated standing to bring the petition for cancellation before the TTAB. Defendants standing before the TTAB necessarily establishes sufficient interest in an appeal or review of the TTAB's determination of the petition. See Jewelers Viligance Comm., Inc. v. Ullenberg Corp., 823 F.2d 490, 492 (Fed. Cir. 1987) (recognizing that requisite standing
to file petition to oppose trademark registration "is in harmony with the standing requirements for maintaining a law suit in an Article III Court"). Sufficient standing before the TTAB requires the petition to demonstrate a real interest in the outcome of the case and a reasonable belief that the mark has caused or will cause damage to the petitioner. See Ritchie v. Simpson, 170 F.3d 1092, 1095 (Fed. Cir. 1999).

Case 1:14-cv-01043-GBL-IDD Document 40 Filed 11/25/14 Page 10 of 17 PageID# 352
Second, a personal stake in the outcome of a case constitutes a sufficient case or
controversy. See Sierra Club v. Morton, 92 S. Ct. 1361, 1364 (1972) (recognizing a sufficient "case" or "controversy" where a party has "a personal stake in the outcome of the controversy as to ensure that the dispute sought to be adjudicated will be presented in an adversary context. . . capable of judicial resolution"); Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 128 S. Ct. 2531, 2543 (2008) (recognizing a personal stake, and Article III standing, "are flip sides of the same coin" that are "different descriptions of the same judicial effort").
Further, a litigant who seeks remedy for an administrative decision only needs to demonstrate injury to warrant Article III jurisdiction. See Consumer Watchdog v. Wis. Alumni Research Found, 753 F.3d 1258, 1261 (Fed. Cir. 2014) (citing Mass.v. E.P.A., 549 U.S. 497, 517-518 (2007)). "[W]here Congress has accorded a procedural right to a litigant, such as the right to appeal an administrative decision," the "immediacy and redressability" requirements of
Article III justiciability are "relaxed." See Id.
The TTAB initiated a cancellation proceeding in response to Defendants' petition for cancellation of the REDSKINS marks. By proceeding with the cancellation proceeding, the TTAB recognized that Defendants had standing before the TTAB. The TTAB's recognition of Defendants' standing necessarily means that Defendants sufficiently demonstrated that they have
a real interest in the outcome of the case and a reasonable belief that the mark has caused them
harm. Because sufficient standing before the TTAB implicates sufficient Article III standing of an appeal or review of a TTAB's determination, this Court finds that Pro-Football has standing
before this Court to review the TTAB's cancellation of its REDSKINS marks.
There is no dispute that Pro-Football will be injured by the cancellation of the marks. Therefore, it is undisputed that Pro-Football has a personal stake in the outcome of the case
10

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sufficient to establish Article III jurisdiction. Defendants, however, assert that despite ProFootball's stake in the outcome, there is no case or controversy in this case because Defendants do not have a personal stake in this case. Defendants rely on Watchdog, to support their
assertion.
In Watchdog, a consumer group appealed the Patent Trial and Appeal Board's determination that the subject matter of the claimed invention, was patent eligible. See id. at 1259. The Federal Circuit dismissed the appeal for lack ofjurisdiction, finding that the plaintiffs had no standing to appeal because the plaintiffs did not engage in activity involving the claimed subject matter and therefore had no "particularized, concrete stake in the outcome of the
reexamination". See id. at 1261-63.
Watchdog is distinguishable from the instant case because Defendants in this action allege, and the TTAB found, that each Defendant has a "personal stake in the outcome" of the TTAB proceeding. Order at *7. As was previously stated, the TTAB's decision to proceed with the cancellation proceeding necessarily recognizes Defendants' personal stake in the outcome of the case. Further, a reversal of the TTAB decision and dismissal of Defendants' petition will cause them injury. Defendants' professed interest in the cancellation of the registrations and Pro-Football's interest in the reversal of these cancellations demonstrate that each party has a "personal stake" in this case to guarantee the issues before this Court will be presented in an adversarial context capable of judicial resolution. Accordingly, Defendants' Motion to Dismiss
is DENIED.
C. Applicability of § 1071 to Defendants Defendants recognize that § 1071(b) provides this Court with statutory jurisdiction to
hear this action. However, Defendants contend that a case under § 1071 cannot be brought
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against them because they have not used the REDSKINS marks and therefore they do not have a legal or economic interest in the marks to constitute them as "parties in interest." The Court rejects this assertion and finds that Pro-Football properly brought this suit under §1071 against Defendants for two reasons. First, this is an inter partes proceeding of which Defendants are the only proper adversarial party against whom Pro-Football can bring suit. Second, Defendants' interest in the outcome of the TTAB proceeding necessarily makes them parties in interest before
this Court.
i. Inter Partes Proceeding
The Court finds that the civil case in question is an inter partes proceeding. A cancellation proceeding is necessarily an inter partes proceeding. See Rosenruist-Gestao E Servicos LDA v. Virgin Enters. Ltd., 511 F.3d 437, 443 n.4 (4th Cir. 2008) ("[a]n inter partes
proceeding ... is an adversarial action between parties" that "can take the form of ... a cancellation proceeding"); The United States Trademark Law Rules of Practice & Federal
Statutes § 2.145 ("[a]n applicant for registration, or any party to an interference, opposition, or cancellation proceeding or any party to an application to register as a concurrent user, [are]
hereinafter referred to as inter partes proceedings"). Section 1071(b)(2) of the Lanham Act provides that "[t]he Director shall not be made a
party to an inter partes proceeding under this subsection." Section 1071(b)(4) provides "[w]here there is an adverse party, such suit may be instituted against the party in interest as shown by the
records of the [USPTO] at the time of the decision complained of." Therefore, it can be inferred
that when a party brings a civil suit to review an inter partes proceeding, an adversarial party in
interest and not the Director is the properdefendant in such a suit.
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Defendants contend that because they and Pro-Football are not ordinary "adverse parties ... claiming rights to the same or similar trademarks," they are not parties in interest in this case. (Doc. 19 at 13.) Defendants therefore imply that the instant case is not adversarial in nature and is thus more akin to an ex parte proceeding than a inter partes proceeding. Id.
The Court is not persuaded by this argument. There is little room to argue that a cancellation proceeding is ex parte. This assertion is clearly contrary to the generally accepted definition of an inter partes proceeding. Further, Defendants were the sole representatives on behalf of the petition for cancellation, were listed as the adverse parties, and were heavily involved in the proceedings before the TTAB. (Doc. 25 at 16.) Defendants "produced

discovery, sat for depositions, participated in TTAB conferences, submitted more than 7,000 pages of purported evidence with their Notice of Reliance, filed trial briefs, filed and opposed

motions, and appeared at an oral hearing before the TTAB." Id. Based on these facts Defendants are clearly adverse parties listed as "the partpes] in interest as shown by the records of the [USPTO]."
Interpreting the clear language of § 1071, Pro-Football properly brought this case against Defendants. A cancellation proceeding is necessarily an inter partes proceeding; and the proper defendant in a review of such proceeding is the adverse and interested party recognized by the USPTO. While this should end the dispute, Defendants contend that they are not "parties in interest" and therefore a civil action under § 1071(b)(4) cannot be properly brought against them.

ii.

Parties in Interest

The Court finds that Defendants are "part[ies] in interest" in this proceeding. Section

1071(b)(4) of the Lanham Act provides that" [w]here there is an adverse party,... a suit may be

instituted against the party in interest as shown by the records of the [USPTO] at the time of the

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decision complained of, but any party in interest may become a party to the action." § 1071(b)(4). However, "where there is no adverse party, a copy of the complaint shall be served on the Director." § 1071(b)(3).
A party in interest does not have to demonstrate proprietary interests in the mark; it must only demonstrate a direct and personal stake in the outcome. See Jewelers, 823 F.2d at 493 (finding a "real interest" in a mark's registration can be shown "without proprietary rights in the mark or without asserting that it has a right or has an interest in using the alleged mark"); Ritchie, 170 F.3d at 1095 (finding "real interest" is shown by "a direct and personal stake in the outcome" or a "legitimate personal interest."); 15 U.S.C. § 1064 (delineating a petitioner for cancellation of a trademark must demonstrate that it has a real interest in the outcome, and reasonably believes that the mark has caused or will cause damage).
Relying heavily on inapplicable precedent, Defendants contend that they are not parties in interest in this suit. First, Defendants rely on, 3V, Inc. v. CIBA Specialty Chemicals Corporation, 587 F. Supp. 2d 641 (D. Del. 2008), patent law precedent. In this case, 3V and CIBA claimed the same invention in their patents. Id. at 642. The Board of Patent Appeals and Interferences found that CIBA established priority of invention over 3V on some patent claims and rendered other CIBA claims unpatentable. Id.
3V initiated a civil action against CIBA under 35 U.S.C. § 146 seeking review of the priority determination. Id. CIBA filed a cross-claim on the unpatentability determinations. Id As a result of negotiations, 3V dedicated "all interest in the patent to the public," by disclaiming its interest in the claimed invention. Id. at 645, 647. Accordingly, 3V moved to dismiss the claim; CIBA opposed this dismissal. Id. at 647. The Court dismissed the claim on the grounds that 3V was not a "party in interest" against which a civil action under 35 U.S.C. § 146 can be
14

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brought because it had no "articulable reason to participate in the dispute . . . where 3V's disclaimer [left 3V with] no possibility . . . [of] equitable interest that would justify it remaining in the case as a 'proper party.'" Id.
The Court is not persuaded by this precedent for two reasons. First, 3V, is a patent proceeding and therefore has no bearing on the trademark proceeding before this Court. Second, the court in 3V found that 3V was not a party in interest on the grounds that 3V disclaimed its interest in the claimed subject matter, therefore rendering its interest to the public. Here, Defendants maintain their interest from the TTAB proceeding. They have not withdrawn their petition for cancellation and continue to allege that they are damaged by the registration of the
REDSKINS marks.
Second, Defendants rely on trademark precedent, Hans C. Bick, Inc. v. Watson, 253 F.2d 344 (D.C. Cir. 1958), to support their assertion that they are not parties in interest and claim that
Pro-Football's dispute is actually with the Director of the USPTO. In Bick, three companies petitioned for the cancellation of Bick's trademark granted by the Commissioner of Patents. Bick filed a civil action against the Commissioner under 35 U.S.C. § 145. The Commissioner
moved to dismiss the complaint under § 146. Id. at 345. The D.C. Circuit denied the motion and
found that the petitioners were not a "party in interest" under § 146 because "such a dispute
clearly is primarily between [Bick] and the Commissioner." Id. at 346. The Court is also not persuaded by this precedent. The D.C. Circuit decided Bick under
the Patent Act, which permitted the Commissioner of Patents to be named a party to a civil action. Bick was decided before the 1962 amendment to the Lanham Act which provides that the Director cannot be made a party to an inter partes proceeding. Therefore, the Bick court's
interpretation of the statutory language cannot be applied to this case where that Court made its
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determination in consideration of the Commissioner being a statutorily acceptable alternative to
the adverse party in the case. See McCarthy §21:24 (describing Bick as "aberrational" where "the court strove mightily to classify the case as review of an ex parte decision, such a result probably [being] impossible [today] since the 1962 amendment").
The Court finds that Defendants' claim of disparagement before the TTAB constitutes a direct and personal stake in the outcome of the appeal before this Court. Defendants have not provided a sufficient reason why they should not be considered parties of interest in this case. Merely pointing out that Defendants have not used the registered marks and have no legal or economic interest in the marks does not absolve them of any interest in the case. Further, the TTAB's finding that Defendants presented a legitimate personal interest sufficient to proceed with the cancellation proceeding presents a legitimate personal interest sufficient to satisfy 15 U.S.C. § 1071. Defendants show no reason why their interest would cease to exist considering reversal of the TTAB's cancellation of the REDSKINS marks would subject Defendants to the very harm they sought to eliminate by filing the petition. Accordingly, Defendants' Motion to
Dismiss Pro-Football's claim is DENIED.
Were the Court to grant Defendants' Motion to Dismiss and allow their dismissal from this action, four improper implications would result. First, granting Defendant's motion would deprive Pro-Football of the opportunity to review the TTAB's decision, therefore, evading review by an Article III court. Second, granting Defendant's motion would be contrary to the statutory scheme provided by 15 U.S.C. § 1071 which gives either party in a cancellation proceeding the opportunity to review a TTAB decision before a United States District Court. Third, a grant of Defendant's motion would mean that the Director is the only proper party for any judicial review of a TTAB cancellation proceeding contrary to the explicit terms in the
16

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statute. Finally, granting Defendant's Motion to Dismiss will improperly make the cancellation

proceeding before the TTAB a final decision. The Court therefore finds that it would be contrary

to the law to dismiss this case and allow Defendants' dismissal from this action.

V.

CONCLUSION

The Court DENIES Defendants' Motion to Dismiss in its entirety. First, 15 U.S.C. §

1071 provides review of a Trademark Trial and Appeals Board's decision in the Federal Circuit
or a District Court, and any meritorious interest brought before an administrative proceeding,

must carry over into a review of said proceeding. Second, the prior proceeding before the TTAB was an inter partes proceeding where Defendants were the sole adverse parties. Third, Defendants' petition for cancellation evidenced that Defendants have a legitimate direct and

personal interest in the registration.

For the foregoing reasons, it is hereby

ORDERED that Defendant Blackhorse's Motion to Dismiss (Doc. 18) is DENIED.
ENTERED this 25th day ofNovember 2014.

Alexandria, Virginia
11/ 25 /2014

/s/
Gerald Bruce Lee
United States District Judge

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 Case 1:14-cv-01043-GBL-IDD Document 161 Filed 07/08/15 Page 1 of 70 PageID# 6097

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION

PRO-FOOTBALL, INC., Plaintiff,
v.
AMANDA BLACKHORSE, eta/., Defendants.

)

)

)

)

)

Case No. I: 14-cv-01 043-GBL-IDD

)

)

)

)

MEMORANDUM OPINION AND ORDER

THIS MATIER is before the Court on two sets of cross-motions for summary judgment.

First, Plaintiff Pro-Football, Inc. ("PFI"), Defendants Amanda Blackhorse, Marcus Briggs-

Cloud, Phillip Gover, Jillian Pappan, and Courtney Tsotigh ("Blackhorse Defendants"), and the

United States of America filed cross-motions for summary judgment on PFI's claims challenging

the constitutionality of Section 2(a) of the Lanham Act (Counts III-VI) (Docs. 54, I05, and I08).

Second, Blackhorse Defendants and PFI filed cross-motions for summary judgment on PFI's

claims contesting the Trademark Trial and Appeal Board's ("TTAB") Order cancelling the

registrations of six of PFI's trademarks on the grounds that they consisted of matter that "may

disparage" Native Americans and bring them into contempt or disrepute, and that the defense of

laches does not bar the claims (Counts I, II, and VII) (Docs. 69 and 79). This case concerns

Blackhorse Defendants' petition to cancel the registration of six trademarks owned by PFI on the

grounds that the marks consisted of matter that "may disparage" a substantial composite of

Native Americans and bring them into contempt or disrepute under Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), at the time of their registrations (1967, 1974, 1978, and 1990).

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There are two issues before the Court. The first issue is whether the Court should grant PFI's Motion for Summary Judgment on Constitutional Claims and deny the cross-motions for summary judgment filed by Blackhorse Defendants and the United States of America. PFI makes the following arguments: (1) Section 2(a) of the Lanham Act violates the First Amendment by restricting protected speech, imposing burdens on trademark holders, and conditioning access to federal benefits on restrictions of trademark owners' speech; (2) Section 2(a) of the Lanham Act is unconstitutionally vague in violation of the Fifth Amendment because it does not provide notice as to which marks "may disparage," it authorizes arbitrary and discriminatory enforcement, and it is impermissibly vague as-applied to PFI; and (3) the TIAB Order violates the Due Process and Takings Clauses of the Fifth Amendment because it deprives PFI of its property without due process and constitutes an unconstitutional taking of PFI's property.
The second issue is whether the Court should grant PFI's Cross-Motion for Summary Judgment on Claims I, II, and VII, and deny Blackhorse Defendants' Motion for Summary Judgment on Counts I, II, and VII of Complaint where PFI argues that (I) the record does not establish by a preponderance of the evidence that a substantial composite of Native Americans believe that the Redskins Marks consisted of matter that "may disparage" them at the time of their registrations (1967, 1974, 1978, and 1990), and (2) the defense of laches bars Blackhorse Defendants' claims.
The Court DENIES PFI's Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment filed by Blackhorse Defendants and the United States of America. With regard to PFI's First Amendment challenge, the Court DENIES PFI's Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions
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for summary judgment filed by Blackhorse Defendants and the United States of America for two reasons. First, Section 2(a) of the Lanham Act does not implicate the First Amendment. Second, the federal trademark registration program is government speech and is therefore exempt from First Amendment scrutiny.
With regard to PFI's Fifth Amendment challenge, the Court DENIES PFI's Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment filed by Blackhorse Defendants and the United States of America for two reasons. First, Section 2(a) of the Lanham Act is not void for vagueness because (1) PFI cannot show that Section 2(a) is unconstitutional in all of its applications; (2) Section 2(a) gives fair warning of what conduct is prohibited; (3) Section 2(a) does not authorize or encourage "arbitrary and discriminatory enforcement"; and (4) Section 2(a) is not impermissibly vague as applied to PFI. Second, the Takings Clause and Due Process Clause claims fail because a trademark registration is not considered property under the Fifth Amendment.
The Court DENIES PFI's Cross-Motion for Summary Judgment on Claims I, II, and VII, and GRANTS Blackhorse Defendants' Motion for Summary Judgment on Counts I, II, and VII of Complaint. With regard to PFI's "may disparage" claim, the Court DENIES PFI's CrossMotion for Summary Judgment on Claims I, II, and VII, and GRANTS Blackhorse Defendants' Motion for Summary Judgment on Counts I, II, and VII of Complaint because the (I) dictionary evidence; (2) literary, scholarly, and media references; and (3) statements of individuals and groups in the referenced group show that the Redskins Marks consisted of matter that "may disparage" a substantial composite of Native Americans during the relevant time period.
With regard to PFI's laches claim, the Court DENIES PFI's Cross-Motion for Summary Judgment on Claims I, II, and VII, and GRANTS Blackhorse Defendants' Motion for Summary
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Judgment on Counts I, 11, and VII of Complaint for two reasons. First, the "may disparage" claim is not barred by laches because Blackhorse Defendants did not unreasonably delay in petitioning the ITAB. Second, laches does not apply because of the public interest at stake.
BACKGROUND
The "Washington Redskins" are a well-known professional football team. The "Redskins" mark was first used by the "Washington Redskins" National Football League ("NFL") franchise in 1933 when then-owner George Preston Marshall selected the name while the team was located in Boston, Massachusetts. "Redskins" was chosen to distinguish the football team from the Boston Braves professional baseball team. 1 (Compl. ~ 35.) The team has used the name ever since. (Id. ~ 34; Doc. 41 ~ 34.) The United States Patent and Trademark Office ("PTO") approved and registered the mark in 1967. (Doc. 56 at 1.) Five additional variations of "Redskins" trademarks were approved and registered between 1974 and 1990 (collectively "Redskins Marks"). The registrations of the Redskins Marks have been renewed repeatedly since 1967, with the most recent renewal occurring in 2015.2 (Doc. 51 ~ 8(a)--(t)). PFI owns, and has always owned, the Redskins Marks. (Id.) The Redskins Marks are:
I. Registration No. 0836122 (registered September 26, 1967) for the mark THE REDSKINS (stylized), shown below, for "entertainment services-namely, football exhibitions rendered in stadia and through the media of radio and television broadcasts," in Class 41;
1 "At the time the name 'Redskins' was chosen for the team, four players-Louis Weller, John Orien Crow, David Ward and Larry Johnson-and the team's head coach William "Lone Star" Dietz identified themselves as Native Americans." (Compl. ~ 34.) 2 Renewal is not a meritorious review of the registmbility of trademark; instead it is merely an administrative mechanism to ensure that the trademark is current. To renew a trademark, the mark's owner must file a combined declaration of use and application for renewal with the PTO under Sections 8 and 9 ofthe Lanham Act, IS U.S.C. §§ 1058-1059.
4

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2. Registration No. 0978824 (registered February 12, 1974) for the mark WASHINGTON REDSKINS, in typed drawing form, for "entertainment services- namely, presentations of professional footba ll contests," in C lass 4 1;
3. Registration No. 0986668 (registered June 18, 1974) for the mark WASHINGTON REDSKINS and design, shown below, for "entertainment services- namel y, presentations of professional football contests," in Class 41;
ASBJIIGIOH
BED SilKS
4. Registration No. 0987 127 (registered June 25, 1974) for the mark THE R EDSKINS and design, shown below, for "entertainment services- namely, presentations of professional football contests," in C lass 41;
5. Registration No. I085092 (registered February 7, 1978) for the mark REOSKINS, in typed drawing form, for ·'entertainment services- namely, presentations of professional football contests,·· in Class 41; and
5

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6. Registration No. 1606810 (registered July 17, 1990) for the mark REDSKINEITES, in typed drawing form, for "entertainment services, namely, cheerleaders who perform dance routines at professional football games and exhibitions and other personal appearances," in Class 41. The Redskins Marks have not evaded controversy. See Walker v. Tex. Div., Sons of
Confederate Veterans, Inc., 135 S. Ct. 2239, 2262 (2015) (Alito, J., dissenting) (describing the '"Washington Redskins" as a controversial team name). For example, in 1971 and 1972, there were a host of newspaper articles detailing opposition to the name "Redskins" by some Native Americans. (Docs. 73-12-73-14; 73-29-73-38.) Similarly, in 1972 Leon Cook, President of the National Congress of American Indians ("NCAI''), among others, met with Edward Bennett Williams, the president of PFI, to explain that the team name was a slur; Williams reported the meeting to the NFL Commissioner the following day. (Doc. 71-3 at 5-6; Doc. 73-24 at 12-14; Doc. 73-25.) Also, a 1972 official game program referenced the controversy surrounding the team's name. (Doc. 72-5 at 6.)
The registrability of the Redskins Marks has been litigated for over two decades. In 1992, Susan Harjo and six other Native Americans filed a petition to cancel the registrations of the Redskins Marks under Section 2(a) of the Lanham Act. Seven years later, the ITAB ruled that the Redskins Marks "may disparage" Native Americans when registered and ordered that the registrations of the marks be cancelled. Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d 1705, 1999 WL 375907 (T.T.A.B. 1999). On appeal, the United States District Court for the District of Columbia reversed the ITAB, holding that (1) the ITAB's finding of disparagement was unsubstantiated, and (2) the doctrine of laches precluded consideration of the case.
The case traversed back and forth between the district court and the D.C. Circuit, with the final outcome being that D.C. Circuit affirmed the district court's ruling that laches barred the
6

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claim.3 Pro-Football, Inc. v. Harjo, 565 F.3d 880 (D.C. Cir. 2009). The D.C. Circuit never addressed the TTAB' s finding of disparagement on the merits.
On August 11, 2006, while Harjo was pending, Amanda Blackhorse, Marcus BriggsCloud, Phillip Cover, Jillian Pappan, and Courtney Tsotigh ("Blackhorse Defendants") filed a petition to cancel the same six registrations of the Redskins Marks. The TTAB suspended action in the Blackhorse case until the Harjo litigation concluded in 2009. The parties here have agreed that the entire Harjo record could be entered into evidence in the case before the TTAB. The parties also waived all non-relevance evidentiary objections to that evidence.
On June 18, 2014, the TTAB scheduled the cancellation of the registrations of the Redskins Marks under Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), finding that at the time of their registrations the marks consisted of matter that both "may disparage" a substantial composite of Native Americans and bring them into contempt or disrepute. See Blackhorse v. Pro-Football, Inc., 111 U.S.P.Q.2d 1080,2014 WL 2757516 (T.T.A.B. 2014). This action seeks a de novo review, pursuant to 15 U.S.C. § 1071(b), of the TTAB's decision, based on the TTAB Blackhorse record and the additional evidence the parties have submitted to this Court.
PFI asserts the following seven causes of action. In Count I, PFI seeks a declaration of non-disparagement. In Count II, PFI seeks a declaration of non-contempt or disrepute. Count III concerns PFI's claim that Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), violates the First Amendment. Count IV is PFI's claim that Section 2(a) of the Lanham Act is void for vagueness. Count V is PFI's claim that the TTAB Order violates the Due Process Clause of the Fifth Amendment. In Count VI, PFI claims that the TTAB Order violates the Takings Clause of the 3 See Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96 (D.D.C. 2003), for the district court case initially reversing the 1TAB; Pro-Football, Inc. v. Harjo, 415 F.3d 44 (D.C. Cir. 2005), for the D.C. Circuit case holding that the district court applied the wrong laches standard to at least one defendant; and ProFootball, Inc. v. Harjo, 567 F. Supp. 2d 46 (D.D.C. 2008), for the district court case holding that laches barred the disparagement claim.
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Fifth Amendment. Lastly, Count VII is PFrs claim that Blackhorse's petition to cancel the registrations of the Redskins Marks was barred by the doctrine of laches.
PFI and Blackhorse Defendants filed cross-motions for summary judgment on PFPs constitutional claims (Counts III-VI) (Docs. 54 & 105). The United States of America intervened and filed a motion for summary judgment on PFI's constitutional claims (Doc. 108), defending the constitutionality of Section 2(a) of the Lanham Act. Additionally, PFI and Blackhorse Defendants filed cross-motions for summary judgment on PFI's Lanham Act and laches claims (Counts I, II, and VII) (Docs. 69 & 79). Each motion is now before the Court.
STANDARDS OF REVIEW A. Summary Judgment
Under Federal Rule of Civil Procedure 56, the Court must grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. FED. R. Ctv. P. 56(c).
In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the non-moving party. Boitnott v. Corning, Inc., 669 F.3d 172, 175 (4th Cir. 20 12) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine issue of material fact for trial exists. 1\t/atsushita E/ec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bouchat v. Bait. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (citations omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008) (quoting Anderson, 477 U.S. at 247-48).
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A "material fact" is a fact that might affect the outcome of a party's case. Anderson, 477 U.S. at 248; JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459,465 (4th Cir. 2001). Whether a fact is considered to be "material" is determined by the substantive law, and "(o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001).
A "genuine" issue concerning a "material" fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631,635 (4th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Rule 56(e) requires the nonmoving party to go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
B. Review of TTAB Decision 15 U.S.C. § 107l(b)(l) "permits a party in a trademark suit to initiate a civil action in the
place of an appeal of the TTAB's determination to the Federal Circuit." Swatch AG v. Beehive Wholesale, LLC, 739 F.3d 150, 155 (4th Cir. 2014). "In a § I07l(b) action, the district court reviews the record de novo and acts as the finder of fact. The district court has authority independent of the PTO to grant or cancel registrations and to decide any related matters such as infringement and unfair competition claims." Id (citing 15 U.S.C. § 1071(b)(l); Durox Co. v. Duron Paint Mfg. Co., 320 F.2d 882, 883-84 (4th Cir. 1963)). Where a party to such an action exercises its right to supplement the TTAB record, the Court gives no deference to the TTAB's findings. Swatch, 739 F.3d at 156.
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ANALYSIS The Court DENIES PFI's Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment filed by Blackhorse Defendants and the United States of America. With regard to PFI's First Amendment challenge, the Court DENIES PFI's Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment filed by Blackhorse Defendants and the United States of America for two reasons. First, Section 2(a) of the Lanham Act does not implicate the First Amendment. Second, the federal trademark registration program is government speech and is therefore exempt from First Amendment scrutiny. With regard to PFI's Fifth Amendment challenge, the Court DENIES PFI's Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment filed by Blackhorse Defendants and the United States of America for two reasons. First, Section 2(a) of the Lanham Act is not void for vagueness because (I) PFI cannot show that Section 2(a) is unconstitutional in all of its applications; (2) Section 2(a) gives fair warning of what conduct is prohibited; (3) Section 2(a) does not authorize or encourage "arbitrary and discriminatory enforcement"; and (4) Section 2(a) is not impermissibly vague as applied to PFI. Second, the Takings Clause and Due Process Clause claims fail because a trademark registration is not considered property under the Fifth Amendment. The Court DENIES PFI's Cross-Motion for Summary Judgment on Claims I, II, and VII, and GRANTS Blackhorse Defendants' Motion for Summary Judgment on Counts I, II, and VII of Complaint. With regard to PFI's "may disparage" claim, the Court DENIES PFI's CrossMotion for Summary Judgment on Claims I, II, and VII, and GRANTS Blackhorse Defendants' Motion for Summary Judgment on Counts I, II, and VII of Complaint because the (I) dictionary
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evidence; (2) literary, scholarly, and media references; and (3) statements of individuals and groups in the referenced group show that the Redskins Marks consisted of matter that "may disparage" a substantial composite of Native Americans during the relevant time period.
With regard to PFI's laches claim, the Court DENIES PFI's Cross-Motion for Summary Judgment on Claims I, II, and VII, and GRANTS Blackhorse Defendants' Motion for Summary Judgment on Counts I, II, and VII of Complaint for two reasons. First, the "may disparage" claim is not barred by laches because Blackhorse Defendants did not unreasonably delay in petitioning the TTAB. Second, laches does not apply because of the public interest at stake.
A. Trademark Registration vs. Trademarks Themselves As a threshold matter, throughout the pleadings the parties conflated the legal principles
surrounding trademarks with those surrounding trademark registration. Just as Allen Iverson once reminded the media that they were wasting time at the end of the Philadelphia 76ers' season "talking about practice" and not an actual professional basketball game,4 the Court is similarly compelled to highlight what is at issue in this case-trademark registration, not the trademarks themselves. It is the registrations of the Redskins Marks that were scheduled for cancellation by the TTAB' s decision, not the trademarks. In fact, the TTAB itself pointed out that it is only empowered to cancel the statutory registration of the marks under Section 2(a); it cannot cancel the trademarks themselves. See Blackhorse v. Pro-Football, Inc., Ill U.S.P.Q.2d 1080, 2014 WL 2757516, at *1 (T.T.A.B. 2014) (citation omitted). Thus, regardless of this Court's ruling, PFI can still use the Redskins Marks in commerce.
It is also important to identify the effect of federal trademark registration. A trademark is "any word, name, symbol, or device or any combination thereof used by any person to identify
4 See ESPN, Original Allen Iverson Practice Rant, YOUTUBE (May 7, 2012), https://www.youtube.com/ watch?v= d29VsG3SDQM (emphasis in original).
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and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown." Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992). Federal law does not create trademarks. See In re Trade-Mark Cases, 100 U.S. 82, 92 (1879). Regardless of whether a mark is registered, the "right to a particular mark grows out of its use, not its mere adoption ...." United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97 (1918) (citation omitted); see also Emergency One, Inc. v. Am. Fire Eagle Engine Co., 332 FJd 264, 267 (4th Cir. 2003) ("To acquire ownership of a trademark it is not enough to have invented the mark first or even to have registered it first; the party claiming ownership must have been the first to actually use the mark in the sale of goods or services." (emphasis added) (citation and internal quotation marks omitted)); 2 J. McCARTHY, TRADEMARKS AND UNFAIR COMPETITION § 16:1 (4th ed. 2014) (same). Thus, use of a mark in commerce, by itself, creates a host of common law rights. See Hanover Star Milling Co. v. Metcalf, 240 U.S. 403 (1916) (explaining scope of common law trademark rights); Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 230 (4th Cir. 2002) ("Generally speaking, trademark protection is a common law right that arises from the use of a mark to identify the source of certain goods or services." (citation omitted)); see also Spartan Food Sys. v. HFS Corp., 813 F.2d 1279, 1282 (4th Cir. 1987); Armand's Subway, Inc. v. Doctor's Assocs., 604 F.2d 849, 849 (4th Cir. 1979). The Lanham Act does, however, contain a cause of action for the enforcement of unregistered trademarks. See 15 U.S.C. § 1125(a).
The owner of a trademark can apply to register it with the PTO under the Lanham Act. See 15 U.S.C. § 1051. After reviewing an application, "[if] a trademark examiner believes that registration is warranted, the mark is published in the Official Gazette of the PTO" as well as the Principal Register. B & B Hardware, Inc. v. Hargis Indus., 135 S. Ct. 1293, 1300 (2015) (citing
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15 U.S.C. § 1062); see also 15 U.S.C. § 1057. Registration confers several benefits upon the
owner of a mark in addition to those available at common law:
(1) constructive notice of the registrant's claim of ownership of the trademark; (2) prima facie evidence of the validity of the registration, of the registrant's ownership of the mark, and of his exclusive right to use the mark in commerce as specified in the certificate; (3) the possibility that, after five years, registration will become [incontestable] and constitute conclusive evidence of the registrant's right to use the mark; (4) the right to request customs officials to bar the importation of goods bearing infringing trademarks; (5) the right to institute trademark actions in federal courts without regard to diversity of citizenship or the amount in controversy; and (6) treble damage actions against infringing trademarks and other remedies.
Georator Corp. v. United States, 485 F.2d 283,285 (4th Cir. 1973) (citing 15 U.S.C. § 1051 et
seq.), abrogated on other grounds by NCNB Corp. v. United States, 684 F.2d 285 (4th Cir.
1982). Incontestability and proof of ownership are among the most significant advantages of
registration. See Brittingham v. Jenkins, 914 F.2d 447, 452 (4th Cir. 1990); see also B & B
Hardware, 135 S. Ct. at 1300 ("The Lanham Act confers important legal rights and benefits on
trademark owners who register their marks." (citation and internal quotation marks omitted)).
What is at issue here is the registration of the Redskins Marks and the benefits associated
with registration, not the use of the marks.
B. Constitutional Challenges
1. PFI's First Amendment Challenge Fails
With regard to PFI's First Amendment challenge (Count Ill), the Court DENIES PFI's
Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for
summary judgment filed by Blackhorse Defendants and the United States of America for two
reasons. First, Section 2(a) of the Lanham Act does not implicate the First Amendment. Second,
under the Supreme Court's decision in Walker v. Tex. Div., Sons ofConfederate Veterans, Inc.,
135 S. Ct. 2239 (2015), the Fourth Circuit's mixed/hybrid speech test, and Rust v. Sullivan, 500 13

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U.S. 173 (1991), the federal trademark registration program is government speech and ts therefore exempt from First Amendment scrutiny.
a. Cancellation of Trademark Registration Does Not Implicate PFI's First Amendment Rights
The Court GRANTS Blackhorse Defendants and the United States' cross-motions for summary judgment on the constitutional claims and DENIES PFI's Motion for Summary Judgment on Constitutional Claims as to PFI's First Amendment claim (Count III) because Section 2(a) of the Lanham Act does not implicate the First Amendment. Section 2(a) provides, in pertinent part, that a trademark shall be refused registration if it "consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute ...." 15 U.S.C. § 1052(a) (emphasis added).
The Federal Circuit and Fifth Circuit have both held that the PTO's refusal to register an applicant's mark does not infringe upon the mark owner's First Amendment rights as "[no] conduct is proscribed[] and no tangible form of expression is suppressed." In re McGinley, 660 F.2d 481, 484 (C.C.P.A. 1981 ); see Test Masters Educ. Servs. v. Singh, 428 F.3d 559, 578 n.9 (5th Cir. 2005); see also In re Fox, 702 F.3d 633, 640 (Fed. Cir. 2012) (affirming refusal to register mark under Section 2(a) because it was vulgar); In re Boulevard Ent., Inc., 334 F.3d 1336, 1343 (Fed. Cir. 2003) (affirming refusal to register marks under Section 2(a) because they were immoral or scandalous); Ritchie v. Simpson, 170 F.3d 1092, 1099 (Fed. Cir. 1999) ("denial of federal registration of a mark does not prohibit the use of that mark"); In re Mavety Media Grp., 33 F.3d 1367, 1374 (Fed. Cir. 1994).
Nothing about Section 2(a) impedes the ability of members of society to discuss a trademark that was not registered by the PTO. Simply put, the Court holds that cancelling the
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registrations of the Redskins Marks under Section 2(a) of the Lanham Act does not implicate the First Amendment as the cancellations do not burden, restrict, or prohibit PFI's ability to use the marks.
In support of its contention that Section 2(a) of the Lanham Act restricts speech, PFI cited a panoply of First Amendment cases in varying degrees of depth. The Court finds that many of the cases are distinguishable from the issue presented here as they involved a situation where speech was prohibited or burdened. For example, in Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013), the Fourth Circuit held that a city ordinance which prohibited individuals from begging for money on Charlottesville's Downtown Mall was an unconstitutional restriction of protected speech. The present case does not concern a statute that prohibits or penalizes any speech as Section 2(a) of the Lanham Act does not restrict one's ability to engage in a particular fonn of speech.
PFI also cited Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (20 11 ), to argue that Section 2(a) burdens the speech of trademark holders. At issue in that case was a Vermont statute that prohibited, absent the prescriber's consent, pharmacies from selling prescriber-identifying information, pharmacies from disclosing that information for marketing purposes, and pharmaceutical manufacturers from using the information for marketing purposes. See id at 2359-61. The Supreme Court found the statute was unconstitutional because the restrictions were content and speaker-based burdens on protected expression. This case is distinguishable from Sorrell for the same reason that is distinguishable from Clatterbuck: Section 2(a) does not restrict any protected expression.
PFI argues that the cancellation of the registrations of the Redskins Marks "affects PFI's message in the ongoing public debate about the Washington Redskins' team name," and what
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PFI has to say in the debate is entitled to special protection under the First Amendment. (Doc. 56 at 7) (citing Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011)). Snyder is inapposite. Snyder involved a question of whether the First Amendment protected Westboro Baptist Church's ("Westboro") notorious picketing of soldiers' funerals. A jury had previously found Westboro liable under several state tort law claims for its picketing. The issue was whether the First Amendment shielded Westboro from tort liability. The Court held that the First Amendment precluded liability, explaining that Westboro's speech was in a public place on a matter of public concern and that the First Amendment prohibited finding Westboro liable for its speech. Here, there is no tort suit against PFI finding it liable for its speech. Section 2(a) does not so authorize. The only remedy being sought is the cancellation of the registrations of the Redskins Marks. An owner's ability to use the unregistered mark is unaffected.
PFI further contends that Section 2(a) of the Lanham Act should be closely scrutinized because although it may not prohibit speech outright, it may drive ideas from the marketplace. (Doc. 57 at 9) (citing Simon & Schuster. Inc. v. Members of N. Y. State Crime Victims Bd, 502 U.S. 105, 116 (1991 )). Simon & Schuster is distinguishable from this case as it involved a New York statute that required publishers to pay a fee to the State Crime Victims Board for any monies derived from the sales of books where criminals spoke of their conduct. See Simon & Schuster, 502 U.S. at 116. Because statutes that impose a financial burden on a speaker based on the content of their speech are unconstitutional, see Leathers v. Medlock, 499 U.S. 439, 447 (1991 ), the Supreme Court declared this New York Son of Sam law unconstitutional. The Court finds PFI's unsuccessful attempt to map incongruent First Amendment jurisprudence onto the Lanham Act unpersuasive as Section 2(a) imposes no financial penalty on speech-it simply cancels a trademark's registration; the speech itself is uninhibited.
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Explaining the importance of the First Amendment, the Supreme Court declared:
The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment . . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.
Thornhill v. Alabama, 310 U.S. 88, I01 (1940) (emphasis added). In this nation under our
Constitution, there is a "profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open ...." N.Y. Times v. Sullivan, 376 U.S. 254,
270 (1964) (emphasis added) (citations omitted). It is axiomatic that the "constitutional right of
free expression is . . . intended to remove governmental restraints from the arena of public
discussion, putting the decision as to what views shall be voiced largely into the hands of each of
us ...." Leathers, 499 U.S. at 448-49 (citation and internal quotation marks omitted). Section
2(a) does nothing to offend these core constitutional principles.
Cancelling the registration of a mark under Section 2(a) of the Lanham Act does not
restrict the public debate on public issues as the mark owner is still able to use the mark in commerce. 5 Accordingly, the Court agrees with the Federal Circuit and Fifth Circuit and holds
that Section 2(a) of the Lanham Act does not implicate the First Amendment.
5 The United States compared this issue to the common-law right to call one's self by a name of one's own choosing. (See Doc. 110 at 10-11.) Courts in California and New Mexico have both held that the denial of a name change request does not implicate the First Amendment as the petitioner may continue to call themselves whatever they please, regardless of whether the name warrants official approval. See Petition of Variable for Change of Name v. Nash, 144 N.M. 633, 635 (N.M. Ct. App. 2008); Lee v. Superior Court, 9 Cal. App. 4th 510 (Cal. 1992). The United States also cited another state court case, In re Bacharach, 344 N.J. Super. 126 (200 I), where the court held that courts may reject name change requests on the ground that the name may be considered racist. Jd at 132. While certainly not binding, the Court finds these cases persuasive.
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b. The Federal Trademark Registration Program is Government Speech and is Exempt from First Amendment Scrutiny
The Court GRANTS Blackhorse Defendants and the United States' cross-motions for summary judgment on the constitutional claims and DENIES PFI's Motion for Summary Judgment on Constitutional Claims as to PFI's First Amendment claim (Count III) because the federal trademark registration program is government speech and is thus exempt from First Amendment scrutiny.
As an initial matter, the Court finds that the federal trademark registration program is not commercial speech. Commercial speech is defined as "speech that does no more than propose a commercial transaction." Harris v. Quinn, 134 S. Ct. 2618, 2639 (2014) (citations and internal quotation marks omitted); see also City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423 (1993) (noting that the proposal of a commercial transaction is "the test for identifying commercial speech" (citation and internal quotation marks omitted)); Briggs & Stratton Corp. v. Baldrige, 128 F.2d 915, 917-18 (7th Cir. 1984) (explaining that the "hallmark of commercial speech" is that it "pertains to commercial transactions," including those "facilitated through the use of a trademark"). Marks approved through the federal trademark registration program are published in the Official Gazette of the PTO and the Principal Register in order to inform the public of marks registered with the federal government. The Principal Register does not propose a commercial transaction and therefore is not commercial speech.6
Both Blackhorse Defendants and the United States argue that the federal trademark registration program is government speech, while PFI contends that the program is a restriction of private speech. The Court holds that the program is government speech for three reasons. 6 A trademark, however, is commercial speech. Because trademarks are source-identifiers that "reduce the customer's cost of shopping and making purchasing decisions," Daslar Corp. v. Twenlielh Cenlury Film Corp., 539 U.S. 23, 34 (2003), they necessarily pertain to commercial transactions and are thus commercial speech under Cily ofCincinnali v. Discovery Ne/Work, Inc., 507 U.S. 410, 423 (1993).
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The Court finds that the factors articulated in the Supreme Court's decision in Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), and the Fourth Circuit's mixed/hybrid speech test in Sons ofConfederate Veterans, Inc. v. Comm 'r of Va. Dep 't ofMotor Vehicles (SCV), 288 F.3d 610, 616 (4th Cir. 2002), weigh in favor of a finding that the federal trademark registration program is government speech. Furthermore, under Rust v. Su/Uvan, 500 U.S. 173 (1991 ), the federal trademark registration program is constitutional because the federal government may determine the contents and limits of programs that it creates and manages.
i. Walker Test The Court finds that the federal trademark registration program is government speech under the Supreme Court's decision in Walker. Walker involved Texas' specialty license plate program. Groups may propose license plate designs with a slogan, graphic, or both, to the Department of Motor Vehicles Board ("the Board"). Walker, 135 S. Ct. at 2243. The Board "may refuse to create a new specialty license plate" for many reasons, including "if the design might be offensive to any member of the public ... or for any other reason established by rule." TEX. TRANSP. CODE ANN. § 504.80I(c). If approved, the license plate design becomes available for Texans to select and place on their vehicles. See Walker, 135 S. Ct. at 2243. In 2009, the Sons of Confederate Veterans, Texas Division ("S.C.V. Texas"), applied to sponsor a specialty plate with a design that included a picture of the Confederate flag. /d. at 2245. The Board rejected the design because many members of the general public found the Confederate flag portion of the design to be offensive. /d. In 2012, S.C.V. Texas filed a federal lawsuit against the Board, claiming that its decision violated the First Amendment's Free Speech Clause. The district court entered judgment for the Board, while a Fifth Circuit panel held that
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license plate designs are private speech and by rejecting S.C.V. Texas' design, the Board engaged in constitutionally forbidden viewpoint discrimination. See id.
The Supreme Court reversed the Fifth Circuit and held that Texas' specialty license plate program is government speech. The Court found that the program was government speech for three reasons. First, history shows that "insofar as license plates have conveyed more than state names and vehicle identification numbers, they long have communicated messages from the States." /d. at 2248 (citation omitted). Second, the public closely associates official state license plate designs with the state. /d. The Court further explained that Texas license plates "are[] essentially government IDs" and issuers of IDs "'typically do not permit' the placement on their IDs of 'messages with which they do not wish to be associated."' /d. at 2249 (quoting Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 471 (2009)). Third, Texas maintains "direct control" over the message conveyed on the plates as the Board must approve every specialty plate design. The Board has "actively exercised this authority" by rejecting designs. Walker, 135 S. Ct. at 2249. "This final approval authority allows Texas to choose how to present itself and its constituency." /d.
Here, the federal trademark program is government speech under the Supreme Court's analysis in Walker. The first Walker factor weighs in favor of government speech as registry ·with the federal trademark registration program communicates the message that the federal government has approved the trademark. See 15 U.S.C. §§ 1072, 1127. The second Walker factor weighs in favor of government speech because the public closely associates federal trademark registration with the federal government as the insignia for federal trademark
registration, ®,1 is a manifestation of the federal government's recognition of the mark.
7 The owner ofa federally registered trademark is not required to display the ® symbol with the trademark. See IS U.S.C. § III I.
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Finally, the third Walker factor weighs in favor of government speech because the federal
government exercises editorial control over the federal trademark registration program. Section
2 of the Lanham Act empowers the PTO to deny or cancel a mark's registration, and thus control
what appears on the Principal Register, on a number of grounds, including any mark that:
(b) Consists of or comprises the flag or coat of anns or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof;
(c) Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States ...;
(d) Consists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States by another and not abandoned, as to be likely ... to cause confusion ... ;
(e) Consists of a mark which (I) when used on or in connection with the goods of the applicant is merely descriptive or deceptively misdescriptive of them, (2) when used on or in connection with the goods of the applicant is primarily geographically descriptive .... (4) is primarily merely a surname, or (5) comprises any matter that, as a whole, is functional.
15 U.S.C. § 1052(b)-(e).8 Parties constantly litigate whether the TTAB properly exercised its
discretion in cancelling or denying a mark's registration under § 1052. See, e.g., Princeton
Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960 (Fed. Cir. 2015); In re Trivita, Inc., 783
F.3d 872 (Fed. Cir. 2015); In re Geller, 751 F.3d 1355 (Fed. Cir. 2014).
Sitting en bane, the Fifth Circuit held that, "[T]he First Amendment does not prohibit the
government, itself, from speaking, nor require the government to speak. Similarly, the First
Amendment does not preclude the government from exercising editorial discretion over its own
8 Section 2(a) allows the PTO to cancel the registration of a mark that, among other things, "[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute ...." Because the constitutionality of Section 2(a) is at issue, it was omitted from the Court's analysis.
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medium of expression." A1uir v. Ala. Educ. Television Comm 'n, 688 F.2d 1033, 1044 (5th Cir.
1982) (citations omitted). By approving or denying registrations under Section 2(a) of the Lanham Act, the government is merely exercising editorial discretion over what is published in the Official Gazette of the PTO and in the Principal Register. Accordingly, the Court finds that
the third Walker factor weighs in favor of finding that the federal trademark registration program
is government speech.
Because all three Walker factors weigh in favor of government speech, the Court finds
that the federal trademark registration program is government speech. ii. Fourth Circuit's Mixed/Hybrid Speech Test
The federal trademark registration program also qualifies as government speech under the Fourth Circuit's mixed/hybrid speech test. In SCV, 288 F.3d 610 (4th Cir. 2002), the Fourth Circuit identified four instructive factors courts should look to in determining whether speech is that of the government:
(1) "the central purpose of the program in which the speech in question occurs"; (2) "the degree of editorial control exercised by the government or private entities over the content of the speech"; (3) "the identity of the literal speaker"; and (4) "whether the government or the private entity bears the ultimate responsibility for the content of the speech[.]" SCV, 288 F.3d at 618 (citations and internal quotation marks omitted). The Court finds that the first factor, the central purpose of the program in which the speech in question occurs, weighs in favor of finding that the speech at issue here is government
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speech. The government has long played a role in protecting trademarks.9 See B & B Hardware,
Inc. v. Hargis Indus., 135 S. Ct. 1293, 1299 (2015). In 1946, Congress created the Lanham Act
in order to protect trademarks used in interstate and foreign commerce. See Park 'N Fly. Inc. v.
Dollar Park & Fly, Inc., 469 U.S. 189, 193 (1985) (citation omitted). The Lanham Act's federal
trademark registration program was created to help protect marks. See B & B Hardware, 135 S.
Ct. at 1299-1300.
The Fourth Circuit's analysis of the "central purpose" factor in ACLU v. Tala, 742 F.3d
563 (4th Cir. 2014), vacated, Berger v. ACLU ofN.C., No. 14-35, 2015 WL 2473457 (U.S. June
29, 20 15}, is particularly instructive. Tala concerned a question of whether North Carolina's
specialty license plate program, including a "Choose Life" license plate, was government or
private speech. The court found that because the central purpose of the program was "to allow
North Carolina drivers to express their affinity for various special interests," the purpose of the
program weighed in favor of finding the speech at issue private. /d. at 572-73 (emphasis added);
see also SCV, 288 F.3d at 619-20 (reasoning that the Virginia specialty plate program was in-
part private speech because it allowed for "the private expression of various views" (emphasis
9 Describing the government's role in administering the federal trademark registration program, the Court of Customs and Patent Appeals explained:
Once a registration is granted, the responsibilities ofthe government with respect to a mark are not ended. The benefits of registration, in part with government assistance, include public notice of the mark in an official government publication and in official records which are distributed throughout the world, maintenance of permanent public records concerning the mark, availability of the Customs Service for blocking importation of infringing goods, access to federal courts where there is a presumption of validity of the registration (e.g., that the mark is not immoral or scandalous), notices to the registrant concerning maintenance of the registration, and, to some extent, direct government protection of the mark in that the PTO searches its records and refuses registrations to others of conflicting marks. Apart from nominal fees, these costs are underwritten by public funds.
In re McGinley, 660 F.2d 481,486 (C.C.P.A. 1981). 23

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added)); cf Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 789-93 (4th Cir. 2004) (finding that the central purpose of South Carolina's "Choose Life" license plate program was to "promote [South Carolina's] preference for the pro-life position," rendering it government speech).
Here, the purpose of the program is not for the expression of private views or interests. Such expression would lay in the creation of the mark itself, which is done by the owner by using the mark in commerce. Instead, the purpose of the federal trademark registration program is to provide federal protection to trademarks, in part achieved by providing notice to the public of what trademarks are registered through the Principal Register. See 15 U.S.C. §§ 1072, 1127. When the symbol for a federally registered trademark,®, is affixed to a mark, it is a declaration by the federal government that it has approved that mark. Accordingly, the Court finds that the purpose of the program weighs towards it being considered government speech.
The Eighth Circuit's decision in Knights ofthe KKK v. Curators ofthe Univ. ofMo., 203 F.3d 1085 (8th Cir. 2000), supports this conclusion. That case involved an effort by the KKK to be recognized during the local National Public Radio ("NPR") station's underwriting acknowledgements. In finding that the underwriting acknowledgements are government speech, the court held that the acknowledgments are the station "speaking" by "airing its acknowledgments of funds received from certain parties to pay for specific" broadcasts. /d. at I 093. Just as the NPR station spoke by airing its acknowledgements, here the federal government speaks by declaring what trademarks it deems registrable.
The Court finds that the second factor, the degree of editorial control exercised by the government or private entities over the content of the speech, also weighs in favor of government speech. SCV is instructive here. In SCV, the Fourth Circuit found that Virginia did not assert
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editorial control over the content of specialty plates because the Commissioner of the Virginia Department of Motor Vehicles rarely exercised his statutory discretion to reject a given plate design. 288 F.3d at 620-21. Also, courts have found that companies did not exercise editorial control over a sign erected by a city that thanked them, individually by name, for their sponsorship; the court instead found that editorial control was asserted by the city because the city decided which companies to place on the sign. See Wells v. City & Cnty. of Denver, 257 F.3d 1132, 1142 (lOth Cir. 2001).
As explained above in the editorial control analysis under Walker, the PTO regularly rejects applications for registration on grounds enumerated in Section 2 of the Lanham Act. Accordingly, the Court finds that the second SCV factor weighs in favor of government speech.
The Court finds that the third factor, the identity of the literal speaker, weighs in favor of government speech. The Official Gazette of the PTO and the Principal Register are published by the PTO. Because the government is the literal speaker, this factor weighs in favor of finding the federal trademark registration program to be government speech.
The Court finds that the fourth factor, whether the government or the private entity bears the ultimate responsibility for the content of the speech, weighs in favor of private speech. When a trademark's federal registration is challenged, it is the mark owner, not the government, who must defend it. Moreover, in deciding this factor courts have considered whether the private entity had to apply or pay to avail itself to the benefits of a program. See, e.g., ACLU v. Tala, 742 F.3d 563, 574 (4th Cir. 2014), vacated, Berger v. ACLU of N.C., No. 14-35, 2015 WL 2473457 (U.S. June 29, 2015); Planned Parenthood ofS.C. Inc. v. Rose, 361 F.3d 786, 793-94 (4th Cir. 2004); cf Wells, 257 F.3d at 1142 (finding that the fourth factor weighed in favor of a
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sign being government speech because the city paid for security guards and video cameras to guard the display).
Here, the mark owners file an application for registration with the PTO. 15 U.S.C. § 1051. An application to register a mark must include, among other things, "the date of the applicant's first use of the mark, the date of the applicant's first use of the mark in commerce, the goods in connection with which the mark is used, and a drawing of the mark." § 1051(a)(2). If a party petitions to cancel the registration of a mark, it is the mark owner who must defend it in the subsequent litigation. See Wells, 257 F.3d at 1142 ("As to the final ... factor, this litigation is itself an indication that the City bears the ultimate responsibility for the content of the display.").
Because the mark owners apply to avail themselves of the benefits of the federal trademark program and defend the registration of their marks in any subsequent litigation, the Court finds that the fourth factor weighs in favor of finding private speech.
Applying SCJI's instructive factors, the Court concludes that because three of the four factors weigh in favor of finding government speech, the federal trademark registration program is government speech. Cf ACLU v. Tara, 742 F.3d 563, 574 (4th Cir. 2014) (concluding that speech was private after finding that three of the four SCV factors weighed in favor of finding the speech at issue to be private speech).
iii. Government May Determine Contents and Limits of Its Programs The Court holds that the federal trademark registration program is constitutional because under Rust v. Sullivan, 500 U.S. 173 ( 1991 ), the government may determine the contents and limits of its programs. In Rust, the Supreme Court considered whether regulations restricting the use of funds by grantees under Title X of the Public Health Act, 42 U.S.C. §§ 300-300a-6 violated the First Amendment. Id The regulations prohibited doctors from engaging in abortion counseling, referral, and activities advocating abortion as a means of family planning in Title X
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projects. See 42 U.S.C. § 300a-6. They were free to perform abortions and engage in abortion advocacy through programs that were independent from their Title X projects. 42 C.F.R. § 59.9
(1989). After considering a viewpoint discrimination challenge to the regulations, the Court
upheld them because they were "designed to ensure that the limits of the federal program are
observed." 10 Rust, 500 U.S. at 193. The Court explained that "when the Government
appropriates public funds to establish a program it is entitled to define the limits of that program." /d. at 194. The Government can "selectively fund a program to encourage certain
activities it believes to be in the public interest, without at the same time funding an alternative program" without violating the Constitution. !d at 193 (emphasis added). Moreover, a
"legislature's decision not to subsidize the exercise of a fundamental right does not infringe the
right." /d. (quoting Regan v. Taxation with Representation of Wash., 461 U.S. 540, 549 (1983)
(internal quotation marks omitted)). "A refusal to fund protected activity, without more, cannot
be equated with the imposition of a 'penalty' on that activity." Rust, 500 U.S. at 193 (quoting Harris v. McRae, 448 U.S. 297, 317 n.19 (1980) (internal quotation marks omitted)).
According to the Fourth Circuit, "Rust stands for the principle that when the government
creates and manages its own program, it may determine the contents and limits of that program"
without violating the First Amendment. Planned Parenthood ofS.C. Inc. v. Rose, 361 F.3d 786,
796 (4th Cir. 2004) (''There is no First Amendment problem, for example, when a public school makes content-based decisions about its curriculum [] or when a public museum decides to display one work of art as opposed to another[.)" (citations omitted)). This is so because when
10 "In Rust the Court 'did not place explicit reliance on the rationale that the counseling activities of the doctors ... amounted to government speech; when interpreting the holding in later cases, however, [it] .. . explained Rust on this understanding.'" Planned Parenthood of S.C. Inc. v. Rose, 361 F.Jd 786, 796 (4th Cir. 2004)(quoting Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001 )).
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the government speaks to promote its own policies or advocate for a particular idea, it is ultimately the electorate who holds the government accountable. See Bd ofRegents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217,235 (2000).
The Supreme Court's decision in Agency for lnt'/ Dev. v. Alliance for Open Soc y lnt 'I,
Inc. (Open Society), 133 S. Ct. 2321 (2013), also provides this Court with guidance. Open Society involved a federal grant program to help fund the fight against HIV/AIDS. Distribution of grant funds was contingent upon applicants adopting a "policy explicitly opposing prostitution and sex trafficking." ld at 2324. In holding that requirement unconstitutional under the First Amendment, the Court stated that the mandate required the grantee to "pledge allegiance to the Government's policy of eradicating prostitution," even during times when grant funds were not being used. /d. at 2332. Because the requirement affected "protected conduct outside the scope ofthe federally funded program," Rust, 500 U.S. at 197, it was ruled unconstitutional.
Here, the federal trademark registration program's requirement that a mark cannot receive federal trademark protection if it "may disparage" is well within the constitutional boundaries set forth in Rust and reaffirmed in Open Society. PFI's suggestion that this requirement is beyond the scope of the program demonstrates a fundamental misunderstanding of the Supreme Court's decision in Rust and the Fourth Circuit's opinion in Planned Parenthood: when the government creates and manages its own program, it may determine the contents and limits of that program. 11 Congress has decided that marks that "may disparage" shall not receive the benefits of federal registration. It is well within its power to do so. Affirming the denial of federal registration of a mark under Section 2(a), the United States Court of Customs and Patent Appeals, the Federal Circuit's predecessor, stated:
11 See supra n.9 (describing the responsibilities of the government in the trademark registration program).
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In providing that marks compnsmg scandalous matter not be registered, Congress expressed its will that such marks not be afforded the statutory benefits of registration. We do not see this as an attempt to legislate morality, but, rather, a judgment by the Congress that such marks not occupy the time, services, and use of funds ofthefederal government. In re McGinley, 660 F.2d 481, 486 (C.C.P.A. 1981) (emphasis added); see also In re Fox, 702 F.3d 633, 640 (Fed. Cir. 2012) (observing that the denial of registration means that the applicant will not be able to "to call upon the resources of the federal government in order to enforce that mark"). Similar to how the doctors in Rust could engage in abortion related-activities through programs independent of their Title X projects, mark owners are free to use marks that "may disparage" outside of the federal trademark registration program. Participation in the program is not compulsory. As stated earlier, the right to trademark protection arises in common law and is not a creature of the federal government. See Harrods Ltd v. Sixty Internet Domain Names, 302 F.3d 214, 230 (4th Cir. 2002). Accordingly, the Court holds that it is within the discretion of the federal government to deny registration to marks that "may disparage." In conclusion, the Court holds that the federal trademark registration program ts government speech under the government speech tests set forth by the Supreme Court in Walker and the Fourth Circuit in SCV, and the Supreme Court's decision in Rust. The Free Speech clause does not regulate government speech, see Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009), and government speech is exempt from First Amendment scrutiny. See Johanns v. Livestock Mktg. Assn., 544 U.S. 550, 553 (2005). Because the federal trademark registration program is government speech, it is exempt from First Amendment scrutiny. Accordingly, the Court holds that as to PFI's First Amendment claim (Count III), PFI's Motion for Summary Judgment on Constitutional Claims must be DENIED and Blackhorse Defendants
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and the United States' cross-motions for summary judgment on the constitutional claims must be GRANTED.
2. PFI's Fifth Amendment Challenge Fails With regard to PFI's Fifth Amendment challenge, the Court DENIES PFI's Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment on the constitutional claims filed by Blackhorse Defendants and the United States of America for two reasons. First, Section 2(a) of the Lanham Act is not void for vagueness because (1) PFI cannot show that Section 2(a) is unconstitutional in all of its applications; (2) Section 2(a) gives fair warning of what conduct is prohibited; (3) Section 2(a) does not authorize or encourage "arbitrary and discriminatory enforcement"; and (4) Section 2(a) is not impermissibly vague as applied to PFI. Second, the Takings Clause and Due Process Clause claims fail because a trademark registration is not considered property under the Fifth Amendment.
a. Section 2(a) of the Lanham Act is Not Void for Vagueness The Court holds that Section 2(a) of the Lanham Act is not void for vagueness. PFI asserts both a "facial" and an "as-applied" constitutional challenge to Section 2(a) on the basis that it is vague. A statute is void for vagueness under the Fifth Amendment's Due Process Clause when it "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." United States v. Williams, 553 U.S. 285, 304 (2008). The void-for-vagueness doctrine ensures that statutes and regulations give a "person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972); see also Hill v. Colorado, 530 U.S. 703, 732 (2000).
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"The degree of vagueness that the Constitution tolerates-as well as the relative importance of fair notice and fair enforcement-depends in part on the nature of the enactment." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). Economic regulation is "subject to a less strict vagueness test." ld Moreover, "[t]he Court has also expressed greater tolerance of enactments with civil, rather than criminal, penalties because the consequences of imprecision are qualitatively less severe." Id at 498-99; see Nat 'I Endowment for the Arts v. Finley, 524 U.S. 569, 589 (1998) (noting that criminal statutes are subject to more stringent void-for-vagueness reviews); Ridley v. Mass. Bay Transp. Auth., 390 FJd 65, 95-96 (1st Cir. 2004) (citations omitted) ("vagueness concerns are more pressing when there are sanctions (such as expulsion) attached to violations of a challenged regulation").
In this case, Section 2(a) of the Lanham Act does not prohibit speech, nor does it impose civil or criminal penalties. Accordingly, the Court now applies a relaxed vagueness review standard. See Finley, 524 U.S. at 589.
i. Facial Void-for-Vagueness Challenge The Court holds that PFI's facial void for vagueness challenge fails because PFI cannot show that Section 2(a) is unconstitutional in all of its applications. Under United States v. Salerno, 481 U.S. 739 ( 1987), a plaintiff can only succeed in a facial challenge by "establish[ing] that no set of circumstances exists under which the [statute] would be valid." /d. at 745; see also Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008). Because PFI cannot possibly demonstrate that every conceivable set of words, symbols, or combination thereof would be invalid under Section 2(a), PFI's facial void-for-vagueness challenge must fail.
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ii. Fair Warning The Court holds that Section 2(a) gives "people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits." Hill v. Colorado, 530 U.S. 703, 732 (2000). The Constitution does not require "perfect clarity and precise guidance." Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989). Courts will look to dictionary definitions to help determine whether a statute is impermissibly vague. See Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 371 (4th Cir. 2012). Section 2(a) states that a mark "shall be refused registration on the principal register" if it "consists of or comprises ... matter which may disparage ... persons." 15 U.S.C. § 1052(a). The Court holds that this language gives fair warning as to what it governs. Not only do the parties agree that at the time the Lanham Act was enacted, multiple dictionaries contained "materially identical definitions of 'disparage,"' (Doc. 56 at 19 n.14), but the Supreme Court has used the term in its Establishment Clause jurisprudence. Setting forth the test under the Establishment Clause to determine the scope of prayer permitted to commence a legislative session, the Court held, "The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." Marsh v. Chambers, 463 U.S. 783, 794-95 (1983) (emphasis added); see also Town of Greece v. Galloway, 134 S. Ct. 1811, 1823-24 (2014) (applying Marsh disparagement test). If the Supreme Court found "disparage" to be an appropriate term to use in a test for the Establishment Clause as recently as last year, the Court declines PFI's invitation to now find the term vague in the context of trademark registration.
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iii. Arbitrary and Discriminatory Enforcement The Court holds that the Lanham Act does not authorize or encourage "arbitrary and discriminatory enforcement" of Section 2(a). A statute authorizes or encourages arbitrary and discriminatory enforcement when there are minimal guidelines that indicate what the law applies to. See Ko/ender v. Lawson, 461 U.S. 352, 358 (1983) (citation and internal quotation marks omitted); Grayned v. City ofRockford, 408 U.S. 104, 108 (1972). Contrary to PFI's contention, the Court finds that the PTO sets forth sufficient guidelines that identify which matters "may disparage" under Section 2(a). Among other things, the PTO publishes the letters of Examining Attorneys' decisions to approve or deny registration on its website. The PTO has also published instructions for Examining Attorneys in its Trademark Manual of Examining Procedure ("T.M.E.P."). (See Doc. 106 at 23.) T.M.E.P. § 1203(b) addresses the "may disparage" portion of Section 2(a). Furthermore, the PTO has published a definition of its test for disparagement in a precedential decision. 12 See Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d 1705, 1999 WL 375907, at *35 (T.T.A.B. 1999). The Court finds that these guidelines are sufficient to identify which matters "may disparage" under Section 2(a) and thus do not authorize or encourage arbitrary and discriminatory enforcement.
iv. Vagueness as-applied to PFI The Court holds that Section 2(a) is not impermissibly vague as applied to PFI because PFI had reason to know that its marks "may disparage" when they were initially registered. PFI argues that "[w]ith only the vague text of Section 2(a) to guide it, PFI could not have reasonably understood that the Redskins Marks would fall within the purview of Section 2(a)." (Doc. 56 at
12 A trademark consists of matter that "may disparage" if the matter might "dishonor by comparison with what is inferior, slight, deprecate, degrade, or affect or injure by unjust comparison." Harjo v. ProFootball, Inc., 50 U.S.P.Q.2d 1705, 1999 WL 375907, at *35 (T.T.A.B. 1999).
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22.) However, when it applied to register the Redskins Marks, PFI was fully on notice that its marks contained matter that "may disparage." Several dictionaries before and during the time PFI obtained its registrations stated that "redskin" is an offensive tenn. (Doc. 56 at 2, ~ 1.) In fact, PFI's expert linguist, David Barnhart, stated that in 1967, 1975, and 1985 the term "redskin" "certainly might be offensive." (/d ~ 5.)
Further, the PTO has shown no inconsistency regarding "redskins" as a term that "may disparage." Since 1992, Examining Attorneys have refused at least twelve applications because "redskins" ••may disparage." See Thompson Decl. Exs. 1-12. Seven of the refusals involved PFI applications for registration. See id. Exs. 1-7.
Because PFI has known since 1967, based at least on contemporary dictionary definitions, that its marks using the tenn ••redskin" "may disparage" and because it has failed to show a pattern of inconsistency at the PTO, the Court holds that Section 2(a) is not impermissibly vague as-applied to PFI.
In sum, the Court holds that Section 2(a) of the Lanham Act is not void for vagueness for four reasons. First, because PFI has not supported a facial void-for-vagueness challenge. Second, because Section 2(a) gives fair warning to the conduct under its purview. Third, because the PTO's guidelines concerning what "may disparage" neither encourage nor authorize arbitrary and discriminatory enforcement. Fourth, because PFI has not supported an as-applied vagueness challenge.
Accordingly, regarding PFI's claim that Section 2(a) of the Lanham Act is void for vagueness (Count IV), the Court DENIES PFI's Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment on the constitutional claims filed by Blackhorse Defendants and the United States of America.
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b. PFI's Takings Clause and Due Process Clause Claims Fail The Court holds that PFI's Takings Clause and Due Process Clause claims fail because PFI has no property interest in the registration of its marks. "The Takings Clause prohibits the taking of private property for public use, without just compensation." Cherry v. Mayor of Baltimore City, 762 F.3d 366, 374 (4th Cir. 2014) (citing U.S. CONST. AMENDS. V, XIV). The Fifth Amendment's Due Process Clause guarantees that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law ...." U.S. CONST. AMEND. V. In In re lnt 'I Flavors & Fragrances Inc., 183 F.3d 1361, 1366 (Fed. Cir. 1999), the Federal Circuit held that a trademark registration (as opposed to the underlying trademark) does not constitute a property interest under the Fifth Amendment. 13 Because PFI has no property interest in the registration of its marks as the Redskins Marks' registrations are not property under the Fifth Amendment, PFI's Takings Clause and Due Process Clause claims must fail. Accordingly, as to PFI's Takings Clause (Count VI) and Due Process Clause (Count VII) claims, the Court DENIES PFI's Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment filed by Blackhorse Defendants and the United States of America. C. Lanham Act Challenges With regard to PFI's "may disparage" claim (Count 1), the Court DENIES PFI's CrossMotion for Summary Judgment on Claims I, II, and VII, and GRANTS Blackhorse Defendants' Motion for Summary Judgment on Counts I, II, and VII of Complaint because the (1) dictionary evidence, (2) literary, scholarly, and media references, and (3) statements of individuals and groups in the referenced group show that the Redskins Marks consisted of matter that "may
13 As has been repeated several times, mark owners retain ownership of their trademarks even once the registration has been cancelled. See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005).
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disparage" a substantial composite of Native Americans during the relevant time period (1967, 1974, 1978, and 1990).
Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), provides that registration should be denied to any mark that "[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute ...." Id The TTAB has established a two-part test to determine whether a mark contains matter that •;may disparage." The parties agree that the test in this case is as follows:
1. What is the meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the goods and services identified in the registrations?
2. Is the meaning of the marks one that may disparage Native Americans?
See Blackhorse v. Pro-Football, Inc., Ill U.S.P.Q.2d 1080, 2014 WL 2757516, at *4 (T.T.A.B. 2014) (citations omitted); see also In re Geller, 751 F.3d 1355, 1358 (Fed. Cir. 2014). This inquiry focuses on the registration dates of the marks at issue. Blackhorse, 2014 WL 2757516, at *4 (citations omitted). Here, the registration dates are 1967, 1974, 1978, and 1990.
When answering the second question, whether the term ''redskins" "may disparage" Native Americans, courts should look to the views of Native Americans, not those of the general public. /d Moreover, Blackhorse Defendants are only required to show that the marks "may disparage" a "substantial composite" of Native Americans. See Geller, 751 F.3d at 1358 (citations omitted). A substantial composite is not necessarily a majority. See In re Boulevard Ent., Inc., 334 F.3d 1336, 1340 (Fed. Cir. 2003) (citing In re McGinley, 660 F.2d 481, 485 (C.C.P.A. 1981)); In re Mavety Media Grp., 33 F.3d 1367, 1370 (Fed. Cir. 1994) (citation omitted).
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Courts consider dictionary evidence when determining whether a tenn "may disparage" a substantial composite of the referenced group. In In re Boulevard, the Federal Circuit held that when a mark has only "one pertinent meaning[,] a standard dictionary definition and an accompanying editorial designation alone sufficiently demonstrate[] that a substantial composite of the general public" considers a term scandalous. 334 F.3d 1336, 134~1 (Fed. Cir. 2003) (emphasis added) (citing 15 U.S.C. § 1052(a)) (finding that a mark had one "pertinent meaning" when all of the dictionaries consulted contained usage labels characterizing a term as "vulgar").
Courts can use usage labels to decide whether a term "may disparage" a specific referenced group, as opposed to the general public in Section 2(a) "scandalous" actions, because usage labels denote when words are disparaging or offensive to the group referenced in the underlying term. See, e.g., Symbols and Labels Used in Oxford Learner's Dictionaries, OXFORD LEARNER's DICTIONARIES, http://www.oxfordleamersdictionaries.com/us/about/labels (last visited July 6, 2015) ("offensive expressions are used by some people to address or refer to people in a way that is very insulting, especially in connection with their race, religion, sex or disabilities").
Thus, using a dictionary's usage labels to determine whether a tenn "may disparage" a substantial composite ofNative Americans during the relevant time period is consistent with the Federal Circuit's holding in Boulevard. See In re Fox, 702 F.3d 633, 635 (Fed. Cir. 2012) (';But where it is clear from dictionary evidence that the mark as used by the applicant in connection with the products described in the application invokes a vulgar meaning to a substantial composite of the general public, the mark is unregistrable." (citation and internal quotation marks omitted)); In re Heeb !vfedia, LLC, 89 U.S.P.Q.2d 1071, 2008 WL 5065114, at *5 (T.T.A.B. 2008) ("It has been held that, at least as to offensive matter, dictionary evidence alone
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can be sufficient to satisfy the USPTO's burden, where the mark has only one pertinent meaning." (citing Boulevard, 334 F.3d at 1340-41)).
However, when dictionaries are not unanimous m their characterization of a term, additional evidence must be adduced to satisfy the PTO's burden. Reversing the TTAB's finding that a mark was scandalous based solely on discordant dictionary characterizations, the Federal Circuit explained:
In view of the existence of such an alternate, non-vulgar definition, the Board, without more, erred in concluding that in the context of the adult entertainment magazine, the substantial composite of the general public would necessarily attach to the mark BLACK TAIL the vulgar meaning of "tail" as a female sexual partner, rather than the admittedly non-vulgar meaning of "tail" as rear end. In the absence ofevidence as to which ofthese definitions the substantial composite would choose, the PTO failed to meet its burden of proving that Mavety's mark is within the scope of § 1052(a) prohibition. Mavety Media Grp., 33 F.3d at 1373-74 (emphasis added). I. The Meaning of the Matter in Question is a Reference to Native Americans The Court finds that the meaning of the matter in question in all six Redskins Marks-the term "redskins" and derivatives thereof-is a reference to Native Americans. PFI admits that "redskins" refers to Native Americans. The team has consistently associated itself with Native American imagery. First, two of the Redskins Marks contain an image of a man in profile that alludes to Native Americans, including one that also has a spear14 that alludes to Native Americans. Registration No. 0986668 (left) and Registration No. 0987127 depict:
14 See generally How Native American Spears Have Been Used Through History, INDIANS.ORG, http://www. indians.orglarticleslnative-american-spears.html (last visited July 6, 2015).
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Second. the team 's football helmets contain an image or a Nat ive American in profile:
See 8/ackhorse v. Pro-Football, Inc., Ill U.S.P.Q.2d I 080, 20 14 WL 27575 16, at *8 (T.T.A.B. 20 14) (citation omitted). Third, the team's marching band wore Native American headdresses as part o r their uni forms from at least 1967- 1990:
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!d. ; see also Criss Decl. Ex. 11 8 at 0:5 1-1:30; Ex. 130, 132-37. Fourth, as shown below, the Rcdskins cheerleaders, the "Redskinettes," also dressed in Native Ameri can garb and wore stereotypical black braided-hair wigs: 15
DANCING INDIANS

r: ,. _.,,. .,... ::. ~·.. .. u.n ' .. ' ' ""' , Jr .:L.a· r. r; arJ 411 J1 ' L-tr.!"4J L:d

w.- ..- .... ; .. '1'14 "':t t 'A

t tH[ .-· ~1':...r..t.-P\ J 11" t~.n.t c;,.a..t t.u:. • rl.a'

B/ackhorse, 20 14 WL 275751 6, at *8. Last ly, Washington Redsk ins ' press guides disp layed Nati ve American imagery:

1967 REDSKIN PRESS GUIDE

/d.
As stated by the TTAB in Hw:jo and confi1med by the D.C. District Court:
15 See generally M AUREEN TRUNDLE S CIIWARZ, FIGIIT!NG COLOI\IALISM WITH H EGEMON IC C ULTURE: NATIVE AMERICAN APPROPRIATION OF INDIAN STEREOTYPES (20 13).
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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. Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96, 127 (D.D.C. 2003) (quoting Harjo v. ProFootball, Inc., 50 U.S.P.Q.2d 1705, 1999 WL 375907, at *41 (T.T.A.B. 1999)). The Court agrees and finds that because PFI has made continuous efforts to associate its football team with Native Americans during the relevant time period, the meaning of the matter in question is a reference to Native Americans.
2. The Redskins Marks "May Disparage" a Substantial Composite of Native Americans During the Relevant Time Period
The Court finds that the meaning of the marks is one that "may disparage" a substantial composite ofNative Americans in the context of the "Washington Redskins" football team. The relevant period for the disparagement inquiry is the time at which the marks were registered. Blackhorse, 2014 WL 2757516, at *4 (citations omitted). Here, the Court focuses on the time period between 1967 and 1990. When reviewing whether a mark "may disparage," the PTO does not, and practically cannot, conduct a poll to determine the views of the referenced group. See In re Loew's Theatres, Inc., 769 F.2d 764,768 (Fed. Cir. 1985). Instead, three categories of evidence are weighed to determine whether a term "may disparage": (1) dictionary definitions and accompanying editorial designations; (2) scholarly, literary, and media references; and (3) statements of individuals or group leaders of the referenced group regarding the term. See Am. Freedom Def Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571, 585 (1st Cir. 2015) (dictionaries); In re Geller, 751 F.3d 1355, 1358 (Fed. Cir. 2014) (dictionaries and news
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reports/articles); In re Lebanese Arak Corp., 94 U.S.P.Q.2d 1215, 2010 WL 766488, at *5 (T.T.A.B. 2010) (dictionary); In re Heeb Media, LLC, 89 U.S.P.Q.2d 1071, 2008 WL 5065114, at *5 (T.T.A.B. 2008) (dictionaries and individual and group sentiment); In re Squaw Valley Dev. Co., 80 U.S.P.Q.2d 1264, 2006 WL 1546500, at *10-*14 (T.T.A.B. 2006) (dictionaries, literary and media references, and individual and group statements).
Furthermore, by using the term "may disparage," Section 2(a) does not require that the mark holder possess an intent to disparage in order to deny or cancel a registration. See Harjo, 284 F. Supp. 2d at 125; Blackhorse, 2014 WL 2757516, at *9-*10 (citing Heeb Media, 2008 WL 5065114, at *8; Squaw Valley, 2006 WL 1546500)). Also, in order to be cancelled or denied registration, the marks must consist of matter that "may disparage" in the context of the goods and services provided. See In re McGinley, 660 F.2d 481,485 (C.C.P.A. 1981).
a. Dictionary Evidence First, the record evidence contains dictionary definitions and accompanying designations of "redskins" that weigh in favor of finding that the Redskins Marks consisted of matter that "may disparage" a substantial composite of Native Americans when each of the six marks was registered. Dictionary evidence is commonly considered when deciding if a tenn is one that "may disparage." See Am. Freedom Def Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571, 585 (1st Cir. 2015); In re Geller, 751 F.3d 1355, 1358 (Fed. Cir. 2014); In re Lebanese Arak Corp., 94 U.S.P.Q.2d 1215, 2010 WL 766488, at *5 (T.T.A.B. 2010); In re Heeb Media. LLC, 89 U.S.P.Q.2d 1071,2008 WL 5065114, at *5 (T.T.A.B. 2008); In re Squaw Valley Dev. Co., 80 U.S.P.Q.2d 1264,2006 WL 1546500, at *10-*14 (T.T.A.B. 2006). The record contains several dictionaries defining "redskins" as a tenn referring to North American Indians and characterizing "redskins" as offensive or contemptuous:
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1. Webster's Collegiate Dictionary 682 (1898) ("often contemptuous"); 2. The Random House Dictionary of the English Language 1204 (1966) ("Often
Offensive"); 3. Random House Dictionary ofthe English Language 1204 (1967) ("Often Offensive"); 4. Random House Dictionary ofthe English Language 1204 (1973) ("Often Offensive"); 5. Thorndike-Barnhart Intermediate Dictionary 702 (2d ed. 1974) ("a term often considered
offensive"); 6. Oxford American Dictionary 564 (1980) ("contemptuous"); 7. The American Heritage Dictionary of the English Language: Second College Edition
1037 ( 1982) ("Offensive Slang"); 8. Webster's Ninth New Collegiate Dictionary 987 (1983) ("usu[ally] taken to be
offensive"); 9. Merriam-Webster Collegiate Dictionary (1983) ("usu[ally] taken to be offensive"); 10. Collier's Dictionary (1986) ("considered offensive"); and 11. Oxford English Dictionary 429 (2d ed. 1989) ("Not the preferred term").
PFI attempts to rebut Blackhorse Defendants' dictionary evidence by arguing that (1) that the usage label evidence is not relevant because none of the usage labels use the word "disparage"; (2) the modifiers "usually" or "often" make the labels conditional and thus irrelevant under Section 2(a); (3) usage labels are chosen at the dictionary editor-in-chiefs discretion with no industry standards for selection; and (4) many dictionaries considered "redskin" a neutral term and only began affixing negative usage labels to it within the last few decades. These arguments fail as they ignore the great weight the Federal Circuit affords to dictionary usage labels.
The Court finds that PFI's argument that dictionary usage labels such as "offensive" and "contemptuous" do not implicate Section 2(a) because they do not label the term "disparaging" is unpersuasive for two reasons. First, the Federal Circuit and the TTAB use "offensive" and
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"disparage" interchangeably when deciding whether a mark consists of matter that "may disparage." See, e.g., In re Geller, 751 F.3d 1355 (Fed. Cir. 2014); In re Lebanese Arak Corp., 94 U.S.P.Q.2d 1215, 2010 WL 766488 (T.T.A.B. 2010); In re Heeb Media, LLC, 89 U.S.P.Q.2d 1071, 2008 WL 5065114 (T.T.A.B. 2008); In re Squaw Valley Dev. Co., 80 U.S.P.Q.2d 1264, 2006 WL 1546500 (T.T.A.B. 2006). Furthermore, because the parties conceded that the test for "contempt or disrepute" under Section 2(a) is the same as the "may disparage" test, the distinction between "disparage" and "contemptuous" is one without a difference.
Second, the Court rejects PFI's argument that the modifiers on the usage labels made them conditional and thus irrelevant. In In re Tinseltown, Inc., 212 U.S.P.Q. 863, 1981 WL 40474 (T.T.A.B. 1981 ), an applicant attempted to register the mark BULLSHIT for personal accessories. The Examiner relied dictionaries unanimously characterizing the mark as "usu[ally] considered vulgar" to conclude that it consisted of scandalous matter under Section 2(a). See In re Mavety Media Grp., 33 F.3d 1367, 1372 (Fed. Cir. 1994) (citing Tinseltown, 1981 WL 40474, at *2). The TTAB affirmed the Examiner's decision.
The Federal Circuit cited Tinseltown with approval on the unanimous usage label issue in In re Mavety Media Grp., 33 F.3d 1367 (Fed. Cir. 1994). Notably, that case involved Section 2(a)'s scandalous provision, which requires a showing that the mark consists of or comprises immoral or scandalous matter. Section 2(a)'s "may disparage" prohibition sets a lower bar as it only requires a showing that the mark consists of or comprises matter that "may disparage." Because the Federal Circuit cited Tinseltown with approval in Mavety Media Grp. and Section 2(a) only requires that a mark "may disparage," the Court finds PFI's argument regarding the relevance of usage labels unpersuasive.
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Moreover, in the context of Section 2(a) scandalous actions, the Federal Circuit has found that dictionary definitions and their accompanying usage labels alone, if unanimous in their characterizations, sufficiently demonstrate that a substantial composite of the general public finds that a mark consists of or comprises scandalous matter. 16 Boulevard, 334 F.3d at 1340-41. The Federal Circuit finds usage labels probative, and even dispositive, on that issue. The TTAB has recognized that the Federal Circuit's approach to usage labels in scandalous matter actions is instructive when weighing usage labels in the "may disparage" context. See In re Heeb Media, LLC, 89 U.S.P.Q.2d 1071, 2008 WL 5065114, at *5 (T.T.A.B. 2008). Moreover, the TTAB looks to dictionary definitions and usage labels when determining whether a mark "may disparage" under Section 2(a). See, e.g., In re Lebanese Arak Corp., 94 U.S.P.Q.2d 1215, 2010 WL 766488, at *5 (T.T.A.B. 2010).
Furthermore, Dr. David Barnhart, one of PFI's linguistics experts, said that characterizing "redskins" as "disparaging" from 1967 to 1985 is too strong a term to apply. Criss Decl. Ex. 14 at 181 :9-12. However, he did declare that in that same time period, the term "certainly might be offensive." /d. This weighs in favor of finding that "redskins" "may disparage" for two reasons. First, Dr. Barnhart stated that "disparage" required intent, Criss DecI. Ex. 14 at 181 :13-182:3, and both parties agree that "may disparage," which is the standard posed by Section 2(a)-no/ does disparage-does not require intent. Second, as explained above, in Section 2(a) "may disparage" cases both the Federal Circuit and the TTAB use "disparage" and derivatives of "offend" interchangeably. Thus, the Court finds that Dr. Barnhart's declaration that "redskins"
16 The Court acknowledges that under the ..immoral, deceptive, or scandalous" part of Section 2(a), the determination must be made "in the context of contemporary attitudes." See Boulevard, 334 F.3d at 1340. While this is a different standard than what is required when determining whether a mark consists of or comprises matter that "may disparage," the Court holds that this difference is immaterial because in "may disparage" actions, the Court can only consider evidence regarding the referenced group's perception of a tenn that is contemporaneous with the mark's registration.
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"certainly might be offensive" is highly probative and weighs in favor of finding that "redskins" "may disparage" a substantial composite of Native Americans during the relevant time period.
Finally, the expert linguists from both parties, Dr. Geoffrey Nunberg for Blackhorse Defendants and Ronald Butters for PFI, both agree that dictionaries tend to lag in updating usage labels for ethnic slurs. (Doc. 71 at 70.) This shows that Webster's Collegiate Dictionary (1898) ("often contemptuous"), The Random House Dictionary ofthe English Language (1966) ("Often Offensive"), and The Random House Dictionary of the English Language (1967) ("Often Offensive") were not inaccurate in recognizing that the term was "often contemptuous" or "often offensive." Instead, it suggests that the term "redskin" may have been viewed as offensive or contemptuous well in advance of the 1898 entry.
Because both Federal Circuit and TTAB precedent establish that usage labels are relevant, the Court rejects PFI's challenges and finds that the record evidence of eleven dictionary definitions and their usage labels describing "redskins" as "offensive" or "contemptuous," along with Dr. Barnhart's testimony that "redskins" "might be offensive," weigh towards finding that between 1967 and 1990, the Redskins Marks consisted of matter that "may disparage" a substantial composite of Native Americans.
b. Scholarly, Literary, and Media References Second, the record evidence contains scholarly, literary, and media references that weigh in favor of finding that "redskins" "may disparage" a substantial composite of Native Americans when each of the six Redskins Marks was registered. 17 Scholarly, literary, and media references evidence is often considered when evaluating whether a mark consists of or comprises matter that "may disparage." See In re Geller, 751 F.3d 1355, 1358 (Fed. Cir. 2014) (citing articles
17 See Criss DecI. Exs. 29-55 for newspaper articles discussing the controversy surrounding the team name "Washington Redskins."
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from the Chicago Tribune and the Courier News to show that associating Islam with terrorism
"may disparage" Muslims); In re Heeb Media, LLC, 89 U.S.P.Q.2d 1071, 2008 WL 5065114, at
*5 (T.T.A.B. 2008) (referencing an article in the New York Observer to demonstrate that "heeb"
"may disparage" the Jewish community); In re Squaw Valley Dev. Co., 80 U.S.P.Q.2d 1264,
2006 WL 1546500, at *10-*14 (T.T.A.B. 2006) (holding that the record evidence, including
articles from more than ten newspapers and periodicals, sufficiently demonstrated that "squaw"
"may disparage" Native Americans).
Here, there are several examples of scholarly, literary, and media references, including:
I. Encyclopedia Britannica 452 (1911) ("Other popular tenns 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 Gennan RouthaUte, or French Peaux-rouges, which have scientific standing.");
2. Erdman B. Palmore, Ethnophau/isms and Ethnocentrism, 67 AM. J. SOCJ. 442, 442 (1962) (noting that "redskin" is an ethnophaulism18 used for Native Americans); 19
3. Alan Dundes and C. Fayne Porter, American Indian Student Slang, 38 AM. SPEECH 270, 271 (1963) (stating that "[a]lmost all the students" at the Haskell Institute, a federallyoperated post-secondary coeducational vocational training school for Native Americans, "resent being called redskins");20
4. Tom Quinn, Redskins/Rednecks, WASH. DAILY NEWS, Nov. 5, 1971 ("John Parker, ... a Choctaw from Oklahoma who works for the Bureau of Indian Affairs, was indignant. 'They should change the name,' he said. 'It lacks dignity, a haphazard slang word that refers to Indians in general but on a lower scale. It is the white people's way of making a mockery, like they used to do to the blacks in the South."');
18 An ethnophaulism is a word used as an ethnic slur to refer to out-groups in hate speech. See Tirza Leader el a/., Complexity and Valence in Ethnophaulisms and Exclusion ofEthnic Out-Groups: What Puts the "Hate" Into Hate Speech?, 96 J. PERS'Y & Soc. PSYCHOL. 170, 170 (2009) (citations omitted). 19 See generally American Journal ofSociology, U. CHI. PRESS J., http://www.press.uchicago.edu/ucp/ journals/ journallajs.html (last visited July 6, 2015) ("Eslab/ished in 1895 as the first U.S. scholarly journal in itsfield, American Journal of Sociology remains a leading voice for analysis and research in the social sciences." (emphasis added)). 20 About the American Dia/ecl Society, AM. DIALECT SOC'Y, http://www.american dialect.orgl (last visited July 6, 2015) ("The American Dialect Society, founded in 1889, is dedicated to the study of the English language in North America" and publishes the American Speech as a quarterly journal).
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5. Tom Quinn, Indians Are Starting to Fight Back, WASH. DAILY NEWS, Jan. 26, 1972, at 72 (reporting that Hal Gross, director of the Indian Lega l Information Development Service ("'ILIDS"), wrote a letter to PFI president Edward Bennett Williams decrying the team name as "derogatory" and a "racial epi thet"; noting that Laura Wittstock, a Seneca leader in IUDS, described a newspaper adverti sement depicting former-coach George Allen in Native headdress, with the caption "Hail to the Redskins: Washington has gained pride .. . even if we lost a little scalp out west" as "degrading" and ..insulting");
(Y.W~U'I-...... ,... ....... _ . . , tl. . . . . a>A-....tJ
~,J.'1
6. Russ White, Williams ' Answer: What's in a Name?, WASI·l. PosT, Jan. 27, 1972, at C I (" Particularly annoying to 750,000 American Indians is the word ' redskin.' To them the word is a racist slur, no more acceptable than the word ' nigger' is to a black man and no more acceptable than the term 'white trash' is among the poor in the South.");
7. Tom Quinn, Redskins Face Suit, WASI-l. DAILY NEWS, feb. 18, 1972, at 107 (quoting Laura Wittstock calling the "Washington Redskins" team name an ethnic slur);
8. Shelby Coffey lll, Indians Open War on Redskins, WASH. PosT, Mar. 30, 1972 (noting that a delegation of eleven people "representing a variety of Indian organizations" met with team president Edward Bennett Williams, including LaDonna Harris, president of Americans for Indian Opportunity ("AIO") and wife of Senator fred Harris; the group sought to have Williams change the team name from the ··derogatory"' racial epithet ··washington Redskins");
9. Editorial , The Double Eagle Ticker, BALT. SUN, July 20, 1972, at A 14 ("(F]or several yea rs Indian organizations have been tryin g to get [the Redskins] to change thei r nameD.");
I0. Paul Kaplan, lvfora/ Question: Do We Defame Native Americans?, WASH. SUNDAY STAR & DAILY NEWS, Aug. 13, 1972, at C6 (recognizing that the team name ·'Redskins ... is considered offensive by many Indians"; quoting a Native American woman protesting the
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team name because Native Americans arc the only "li ving ethnic group ... used as a symbol"); II . George Solomon, Redskins Keep Name, Will Change Lyrics, WASH. PosT, July 18, I972 (explaining that the Washington Rcdskins would retain their name but would change lyrics to their fight song, including references to "scalp 'em,'· because Native Ameri cans groups had convinced the owner that the lyrics were offensive); 12. In 1972, the Uni versity of Utah dropped the nickname "Redskins·• out of concern that it disparaged Native Americans. (See Doc. 71 at 20); I3. Alden Vaughan, From White Man to Redskin: Changing Anglo-American Perceptions of the American Indian , 87 AM. I-liST. R EV. 917, 942, 949 (I 982) ("redskins" is an "epithet"); 14. Hai g Bosmajian, Defining the 'American Indian ': A Case Study in the Language of Suppression, in EXPLORING LANGUAGE 295 (3d ed. 1983) ("'Our language includes various phrases and words which relegate the Indian to an inferior status," including " Redsk in s''); 15. Robert Keller, Hostile Language: Bias in Historical Writing About American Indian Resistance, 9 J. AM. CULTURE 9, I5 ( I986) (using "redskin" as an example of "deprecatory language"); 16. Rose Gutfeld , II Native American Group Lobbies NFL 's Redskins to Change Name, WALL ST. J., 1987 (Phil St. John, a Sioux and leader of a Minneapolis group called ''Concerned American Indian Parents," described '·Redskins" as "probably the most racist Indian-related team name."). The group used the following poster:
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"Pittsburgh Negroes, Kansas City Jews, San Diego Caucasians, Cleveland Indians. Maybe Now You Know How Native Americans Feel."21
17. Don Boxmeyer, Humboldt Urged to Leave Indians in Peace, ST. PAUL PIONEER DISPATCH, Nov. 29, 1987 ("'The Washington Redskins are the worst,' said Fred Veilleux, an Ujibway Indian .... 'There is nothing more disrespectful or demeaning than to call an Indian a redskin. It would be like calling a black man a nigger."');
18. Mark Grossman, 'Redskins Irks Indians; Protests Planned, FAIRFAX J., Jan. 21, 1988 (Russell Sacks of NCAI said the team name "Washington Redskins" is "blatantly racist" and provides a negative image of Native Americans);
19. Clarence Page, It'// Be the Broncos v. a Racial Slur, CHI. TRIB., Jan. 24, 1988 ("To Native Americans, 'redskin' is as offensive as ... 'wetback [is to Mexicans] .... [G]ood intentions are no excuse for insulting the offspring of this land's original people.");
20. Paul Sand, Do Not Continue to Smear American Indians in Team Names, ST. PAUL PIONEER PRESS DISPATCH, Jan. 28, 1988, at 17A ("In American folklore the redskin was a savage who was believed to possess animal-like prowess, who killed innocent white settlers, who raped white women, who kidnapped white children. To white supremists, red-pigmented skin was synonymous with subhuman brutality. The richness of Indian culture . . . can never be communicated by the symbolic gesture of naming a team the Redskins ....");
21. Editorial, 'Redskins' is Racist, STANFORD DAILY, Feb. 2, 1988 (explicating the derogatory nature of the "Washington Redskins" name);
22. Pat Heimberger, Consider Religious Significance, BEMIDJI PIONEER, Feb. 5, 1988 ("Why then is it so difficult to understand the feelings of Native American people? Why do we say, 'How ridiculous!' when we are asked to change the name of a team from the 'Redskins' to something that is non-offensive?");
23. Tim Giago,22 Op-Ed., If the Name Redskins Doesn't Bother Team Owner, How About
Blackskins, LAKTOA TIMES, reprinted in SIOUX FALLS ARGUS LEADER, Feb. 21, 1988 ("Redskins is, and was intended to be, a very strong racial epithet against American Indians . . . . A common usage in ... newspaper history was Redskinned nigger.");
24. Erik Brady, Indians: A People, Not a Nickname, USA TODAY, Aug. 15, 1988 (Phil St. John and Susan Harjo (Cheyenne and Hodulgee Muscogee, respectively) explain how offensive "Washington Redskins" is to Native Americans);
25. Sam Thorp, Mascot Could Be Part of a Bigger Problem, THE PENN, Dec. 8, 1989, at 7 ("There have been groups that have tried to stop the professional sports teams [from using Native Americans as mascots]. The private owners have so far just been successful
21 Bob Bemotas, D.C. Group Tackles the Redskins, BALT. JEWJSH TJMES, Feb. 12, 1988, at 64-65.
22 Author is an Oglala Lakota and served as the publisher of the Lakota Times.
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at blocking their attempts. Let me say one thing about the word 'redskin.' It is the most derogatory word that can be used to describe an Indian. By actually calling an Indian a redskin you might get the same reaction from them as you would get if you called a black a nigger."); 26. JAY COAKLEY, SPORTS IN SOCIETY: ISSUES AND CONTROVERSIES 206 (1990) ("The use of the name Redskins cannot be justified under any conditions. To many Native Americans, redskin is as derogatory as 'nigger' is for black Americans."); and 27. IRVING LEWIS ALLEN, UNKIND WORDS: ETHNIC LABELING FROM REDSKIN TO WASP 3, 18 ( 1990) (identifying "redskin" as a slur for Native Americans). Here, based on the evidence presented in Geller, Heeb Media, and Squaw Valley, the Court finds that the scholarly, literary, and media references evidence weighs in favor of finding that the Redskins Marks consisted of matter that "may disparage" a substantial composite of Native Americans between 1967 and 1990. For example, as early as 1911, sources such as Encyclopedia Britannica contemplated the poor standing of the term "redskins." The Court finds that Encyclopedia Britannica is a well-respected source. The Supreme Court has referenced Encyclopedia Britannica entries approximately 40 times since 1846, with over 25 of those references occurring before the first Redskins Mark was registered in 1967. See, e.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 187 (1963) ("Magna Carta"); Gaines v. Herman, 65 U.S. 553, 581, 589 (1860) ("Inquisition"); Moore v. Am. Transp. Co., 65 U.S. I, 25 (1860) ("Navigation, Inland"). The Supreme Court has repeatedly relied on Encyclopedia Britannica as an authoritative source and this Court shall do the same. Prior to the first mark's registration in 1967, there were two renowned journals and an Encyclopedia Britannica reference that illustrate the term's disfavor among Native Americans. Taken altogether, the Court finds that these three pieces of evidence establish that in 1967, the date of the first registration, evidence existed that showed that the Redskins Marks consisted of matter that "may disparage" a substantial composite of Native Americans during the relevant time period.
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c. Statements of Individuals or Group Leaders
Third, the record evidence contains statements of Native American individuals or leaders
of Native American groups that weigh in favor of finding that the Redskins Marks consisted of
matter that "may disparage" a substantial composite of Native Americans during the relevant
time period. The TTAB considers statements from individuals in the referenced group and
leaders of organizations within that referenced group when it makes its "may disparage" finding.
See In re Heeb Media, LLC, 89 U.S.P.Q.2d 1071,2008 WL 5065114, at *5 (T.T.A.B. 2008); In
re Squaw Valley Dev. Co., 80 U.S.P.Q.2d 1264,2006 WL 1546500, at* 10-*14 (T.T.A.B. 2006).
Blackhorse Defendants reference a 1972 meeting between PFI's president and a few
major Native American organizations about the "Washington Redskins" team name to show that
it "may disparage." In March 1972, a delegation of Native American leaders met with the then-
President of PFI, Edward Bennett Williams, to demand that the team change its name. The group included: (l) Leon Cook, President ofNCAI;23 (2) Dennis Banks, National Director of the American Indian Movement ("AIM");24 (3) Ron Aguilar, District Representative of the National Indian Youth Council ("NIYC");25 (4) LaDonna Harris, President of AI0;26 (5) Richard
23 NCAI was established in 1944 "in response to the tennination and assimilation policies that the U.S. government forced upon tribal governments in contradiction of their treaty rights and status of sovereign nations." The group is "one of the most important intertribal political organizations ofthe modem era. It has played a crucial role in stimulating Native political awareness and activism, provided a forum for debates on vital issues affecting reservations and tribes, overseeing litigation efforts, and organizing lobbying activities in Washington." See generally NATIONAL CONGRESS OF AMERICAN INDIANS, www.ncai.org (last visited July 6, 20 15). 24 AIM was founded in 1968 in response to police violence against Native Americans. By the early 1970s, AIM "had become the country's largest militant Indian organization with thousands of members, supporters and sympathizers from virtually all Indian tribes." (Doc. 71, Ex. C). See generally AMERICAN INDIAN MOVEMENT, www.aimovement.org (last visited July 6, 2015). 25 NIYC was founded in 1961 and claims to be the second oldest national American Indian organization. NrYC advocates diligently and continuously to ensure that every American Indian has equitable access to educational opportunities, health and social services, employment and civil rights. See generally NATIONAL INDIAN YOUTH COUNCIL, INC., www.niyc-alb.org/ (last visited July 6, 2015).
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LaCourse, News Director in the Washington Bureau of the American Indian Press Association ("AIPA");27 (6) Laura Wittstock, Editor of Legislative Review for ILIDS;28 (7) Hanay Geiogamah, Assistant to the Commissioner of Indian Affairs and the Youth Representative from the Bureau of Indian Affairs; and (8) Ron Petite, AIM. Criss Decl. Ex. 64 at 18:6-19:5; Ex. 66. Articles from the Washington Post and the Washington Daily News state that around the time of
the meeting, NCAI's membership was approximately 300,000-350,000 members. See Blackhorse, 2014 WL 275716, at *19-*20.
The next day, Williams wrote to NFL Commissioner Pete Rozelle to inform him about the meeting, noting that the "delegation of American Indian leaders ... vigorously object[ed] to the continued use of the name Redskins." Criss Decl. Ex. 3. Although Williams did not change the team name after the meeting, he did change the fight song and altered the cheerleaders' outfits so that they were less stereotypical. (Doc. 71 at 19.)
The Court finds this meeting probative on the issue of whether the mark consisted of matter that "may disparage" a substantial composite of Native Americans during the relevant time period. Representatives of several prominent Native American organizations protesting the "Redskins" name is strong evidence that the term "may disparage." Williams himself regarded the Native Americans he met with as "leaders," rather than a group of individuals representing their own interests. (!d.)
26 AIO was founded by LaDonna Harris in I970 to advance the cultural, political, and economic lives of indigenous peoples in the United States and around the word. See generally AMERICANS FOR INDIAN OPPORTUNITY, www.aio.org (last visited July 6, 2015). 27 AIPA was founded in 1970 to provide a news service and address issues common to Native American newspapers. See THEDA PERDUE eta/., NORTH AMERICAN INDIANS: A VERY SHORT INTRODUCTION 121 (2010). 28 ILIDS was an educational and legislative oversight organization run by Harold Gross. (Doc. 71 at I718.)
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In support of their argument that prominent Native American organizations and leaders in the Native American community have long opposed the use of the term "redskins" as the name of an NFL football team name, Blackhorse Defendants have submitted several declarations. Below are quotes from the declarations of four prominent Native Americans: Raymond Apodaca (former Area Vice President ofNCAI and Governor for the Yselta Del Sur Pueblo); Leon Cook (former NCAI President and former Council Member and Tribal Administrator for the Red Lake Nation); Kevin Gover (prominent attorney, former Assistant Secretary of the Interior for Indian Affairs, and current Director of the Smithsonian Institution's National Museum of the American Indian); and Suzanne Harjo (former Executive Director of the NCAI and 2014 recipient of the Presidential Medal of Freedom for her work on behalf of Native Americans). Each declaration affirms Blackhorse Defendants' argument that from 1967 to 1990, the Redskins Marks consisted of matter that "may disparage" a substantial composite of Native Americans.
Raymond Apodaca was born in 1946 and is a member of the Yselta Del Sur Pueblo. Apodaca DecI. ~ 2. Apodaca is a former Executive Director of the Texas Indian Commission, serving in that capacity from 1982-1989. /d. ~ 7. From 1991-1992, he was the Tribal Administrator for the Yselta Del Sur Pueblo. ld ~ 5. At the time, Tribal Administrator was the highest administrative role within the tribe. ld He also served as Tribal Governor for the same pueblo from 1990-1992. /d. Apodaca has been an active member of the NCAI since 1973. /d. ~ 6. Apodaca declared that "NCAI is the oldest and the preeminent Native American organization, representing the majority of Native Americans on a variety of political, cultural, and social policy issues." ld ~ 7.
He further stated that because NCAI represents the majority of Native Americans in federally recognized tribes, NCAI is the best organization to consult to discern an understanding
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of Native Americans' position on an issue. ld ~ 12. He held several leadership positions in NCAI, including Area Vice President. Apodaca has thought that "redskin," both the term and the professional football team name, was a racial slur against Native Americans since the 1960s. ld. ~~ 13-15.
Leon Cook was born in 1939 and is a member of the Red Lake Band of Chippewa Indians. Cook Decl. ~ 2. Between 1970 and 1971, Cook worked for the Bureau of Indian Affairs. ld. ~ 3. He has held various roles in the Red Lake Nation, including Tribal Council Representative, member of the tribal governing council, a Tribal Administrator, and Human Resources Director. ld. ~ 4.
Cook has been an active member of NCAI since 1966 and was elected its president in 1971. /d. ~~ 5-6. While Cook was president of NCAI, 100-150 tribes were members. Id. ~ 6. As president, Cook also served as the head ofNCAI's Executive Council. ld ~ 8. Its role was to identify "issues of concern to the Native American membership and develop[] strategies to address those issues." Jd. Cook invited representatives of AIM, NIYC, and AIO to a 1972 Executive Council meeting. At this meeting, the four groups concluded that they shared a common interest in opposing the "Washington Redskins" name as it was "bigoted, discriminatory, and offensive to Native Americans." ld ~ 10.
Cook further stated that in 1973, the NCAI General Assembly voted in favor of a resolution calling for the "Washington Redskins" to change the team name. Jd. ~ 14. According to Cook, NCAI has maintained its opposition to the name, formalizing the opposition with resolutions in the early 1990s. Jd ~ 15. Finally, Cook declared, "Throughout my life, I have maintained my opposition to the Washington football team's name. I believe the use of the term
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'redskin' in any context-professional athletics or otherwise-is derogatory, disparaging, and demeaning to Native Americans." /d. ~ 16.
Kevin Gover was born in 1955 and is a citizen of the Pawnee Indian Nation. Gover Decl. ~~ 2-3. Gover grew up thinking that "redskin" was a racial slur. ld. , 4. Gover was occasionally called a "redskin" during his upbringing. He stated:
I vividly recall a time when I was in fourth grade when another child called me a "dirty redskin" on the playground. In addition, when I played for my junior high school football team, members of opposing teams sometimes would call me a "redskin" as a form of bullying or "trash talking" on the field. ld , 5. Gover's parents moved to Washington, D.C. in 1971 so his father could work for the AIO. Gover claimed that he remembers his parents and other Native Americans in their social circle "expressing their dismay that the local NFL football team used an ethnic slur against Native Americans as its team name." !d. ~ 6. This helped motivate Gover to write a letter to Edward Bennett Williams. In his letter, Gover noted that several hundred thousand Native Americans find the team name "Redskins" offensive and suggested that Williams change the team name to the "Washington Niggers" in order to stick with his "ethnic theme." Gover Decl. Ex. A. Finally, Susan Harjo's declaration is also evidence of the disparaging nature of the "Washington Redskins" team name. Harjo was born in 1945 and is a citizen and enrolled member of the Cheyenne and Arapho Tribes of Oklahoma. Harjo Decl. ~ 3. Harjo currently serves as the President and Executive Director of The Morning Star Institute, "a Native American cultural organization that is dedicated to Native Peoples' traditional and cultural rights, historical research and arts promotion." /d. ~ 2. Growing up, Harjo and her family members often heard "redskin" being used as a slur. Harjo explained:
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In the 1950s, my brothers, cousins and Cheyenne friends were often called "redskins" by white children at school . . . and sometimes by their parents. On one especially upsetting and painful occasion, an elementary school teacher argued with me about our family history and the Battle of Little Big Hom, and he angrily called me names, including "redskin." He also slandered my great-great-grandfather, Chief Bull Bear, and called him a "redskin" and pushed me into a rosebush. I also remember shopkeepers calling me the epithet "redskin." Altogether, white people probably called me the slur "redskin," or called the group I was with "redskins," at least 100 times. /d.~ 5. In 1962, Harjo was selected by the Business Committee of the Cheyenne and Arapho Tribes of Oklahoma to be a part of a tribal delegation to federal meetings in Washington, D.C. /d. ~ 10. She recalled members of the delegation complaining about the "Redskins" signage and promotion in Washington, with tribal leaders saying something to the effect of, "No wonder such bad Indian policy comes out of D.C.; look what bad things they call us." /d. Harjo also served as the Executive Director of the NCAI from 1984-1989. While in that role, Harjo "reflected and carried out the position ofNCAI to oppose the name of the Washington NFL team and to call for its elimination." /d. ~ 13. Lastly, Harjo noted that she has always regarded "redskin" as a racial slur and deems it "the most awful slur that can be used to refer to Native American nations, tribes, and persons." /d. ~ 19.
The Court finds that the declarations from these prominent Native American individuals and leaders, replete with the actions of groups concerning the "Washington Redskins" football team and anecdotes of personal experiences with the term "redskin," show that the Redskins Marks consisted of matter that "may disparage" a substantial composite of Native Americans during the relevant time period.
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Additional evidence that the marks consisted of matter that "may disparage" is found in the NCAI Resolution. In 1993, the Executive Council of the NCAI passed a resolution on the ''Washington Redskins" team name. Founded in 1944, NCAI bills itself as "the oldest and largest intertribal organization nationwide representative of, and advocate for national, regional, and local tribal concerns." Criss DecI. Ex. 108. The resolution provided, in pertinent part, that, "(T]he tenn REDSKINS is not and has never been one of honor or respect, but instead it has always been and continues to be a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging and racist designation for Native American[s]." Criss Decl. Ex. 108 (emphasis added). The Court finds that this resolution is probative of NCAI's constituent members' collective opinion of the tenn "redskin" and PFI's marks for many years, including when the last Redskins Mark was registered. See In re Heeb Media LLC, 89 U.S.P.Q.2d 1071,2008 WL 5065114, at *1 (T.T.A.B. 2008) (affirming denial ofregistration of a mark based in part on excerpts from "individuals representing Jewish groups or in their individual capacity," which provided that they "consider the tenn HEEB to be a disparaging").
PFI objects to this evidence on relevancy grounds because the resolution was passed outside of the relevant time period. However, as suggested by the TTAB in Blackhorse, this is just like any other testimony from individuals that was taken after the fact: witnesses testify about what they perceived in the past. PFI may challenge the weight this evidence is afforded but the words of the resolution are indisputable: this national organization of Native Americans declared that the term "REDSKINS" has always been derogatory, offensive, and disparaging. Because this evidence tends to prove or disprove a matter, see FED. R. EVID. 40 I, the Court overrules PFI's objection and finds that the resolution is probative of whether a substantial
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composite of Native Americans thought "redskin" "may disparage" them during the relevant time period.
Throughout PFI's briefs it appears to suggest that the evidence of the 1972 meeting with fonner-PFI president Williams, NCAI's 1993 resolution on the team name, and any other evidence of Native American opposition is immaterial because "mainstream Native Americans" support the team name "Washington Redskins." Respondents in In re Heeb Media, LLC, 89 U.S.P.Q.2d 1071, 2008 WL 5065114 (T.T.A.B. 2008), and In re Squaw Valley Dev. Co., 80 U.S.P.Q.2d 1264, 2006 WL 1546500 (T.T.A.B. 2006), also tried to dismiss the views of those finding a tenn offensive as out of the mainstream. The TTAB rejected this argument both times. The Court agrees with the TTAB's approach and similarly rejects PFI's attempted characterization of some of Blackhorse Defendants' witnesses and their respective testimony. That a "substantial composite" is not necessarily a majority further compels this result. Assuming the Court accepted PFI's proffered dichotomy of "mainstream" versus "avant-garde" members of a referenced group, as a matter of principle it is indisputable that those with "nonmainstream" views on whether a tenn is disparaging can certainly constitute a substantial composite of a referenced group. The Court finds that to be the case here.
PFI sought to rebut Blackhorse Defendants' evidence multiple ways. First, PFI relies upon the 1977 All-Indian Half-Time Marching Band and Pageant and Native Americans naming their own sports teams "Redskins" to argue that the tenn is not disparaging. (Doc. 100 at 37.) Hundreds of Native Americans participated in the half-time program and several-hundred more applied but were ultimately not able to partake in the event. (!d.) PFI contends that the "positive tone" of the Native American press reports on the event, among other things, shows that the mark did not consist of matter that "may disparage" a substantial composite Native Americans
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during the relevant time period. (/d.) Additionally, PFI maintains that Native Americans' own

extensive use of the term "Redskins" for different nicknames and the names of over twenty local

sports teams precludes it from being considered as a term that "may disparage."

The Court finds these arguments unpersuasive because this evidence does not show that a

there is not a substantial composite of Native Americans who find the matter was one that "may

disparage." Heeb is again instructive. Heeb involved an effort to register the mark HEEB for

apparel and the publication of magazines. In re Heeb Media, LLC, 89 U.S.P.Q.2d 1071, 2008

WL 5065114, at *1 (T.T.A.B. 2008). The TTAB acknowledged that there was a movement

within the Jewish community to take command of the term "heeb" and not be offended by it. ld

at *5-*6. However, despite the fact that "many of this country's most established Jewish

philanthropies and cultural organizations have openly and actively supported Applicant's

magazine," id. at *3, the ITAB held that the evidence showed there was still a substantial

composite of Jewish individuals who would find the term "heeb" to be one that "may disparage."

In Heeb, the TTAB explained that disparate views within the community of the

referenced group countenance reliance on the rule that a substantial composite is not necessarily

a majority. The TTAB wrote:

/d. at *8.

With regard to applicant's argument that a minority opinion should not veto registration of a particular mark, this is not in keeping with the standard set forth by our primary reviewing court. While case law does not provide a fixed number or percentage, it is well established that a "substantial composite" is not necessarily a majority. Here we have clear evidence that a substantial composite of the referenced group considers HEEB to be a disparaging term. The examining attorney has presented evidence from various segments of the Jewish community, including the Anti-Defamation League, a university professor, rabbis, a talk-show host and ordinary citizens.

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The current case mirrors the circumstances in Heeb. Similar to Heeb, segments of the Native American community have decried "redskin" as disparaging, including the NCAI, a former tribal leader, and an author. The Court recognizes PFI's evidence that some members of the Native American community did not ever, and do not now, find "redskin" disparaging, whether in the context of the "Washington Redskins" or not. As reinforced in Heeb, the substantial composite rule does not require that a majority of the referenced group find that a mark consists of matter that "may disparage." /d. Accordingly, PFI's argument that the 1977 halftime show and the use of "Redskins" as a nickname by Native Americans means that the term is not one that "may disparage" must fail because, consistent with Heeb, the record evidence shows that a substantial composite of Native Americans find that the term is offensive.
Accordingly, the Court finds that the record evidence of statements from Native American leaders and groups weighs in favor of finding that between 1967 and 1990, the Redskins Marks consisted of matter that "may disparage" a substantial composite of Native Americans.
Through Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), Congress has made a judgment that the federal trademark registration program will not register marks that "may disparage" different groups. A denial or cancellation of registration simply signifies that because a mark does not meet the requirements of the federal trademark registration program, the mark owner will not be able "to call upon the resources of the federal government in order to enforce that mark." In re Fox, 702 F.3d 633, 640 (Fed. Cir. 2012).
The determination of whether a substantial composite of the referenced group believes that a mark consists of a term that "may disparage" is not a mathematical equation requiring the parties to argue over whether the evidence shows that a specific threshold was met. See Heeb,
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2008 WL 5065114, at *8 (citation omitted). Instead, courts consider (1) dictionary definitions and accompanying editorial designations; (2) scholarly, literary, and media references; and (3) statements of individuals or group leaders of the referenced group on the term.
Here, the Court finds that the record contains evidence in all three categories demonstrating that between 1967 and 1990, the Redskins Marks consisted of matter that "may disparage" a substantial composite of Native Americans. The dictionary evidence included multiple definitions describing the term "redskin" in a negative light, including one from 1898almost seventy years prior to the registration of the first Redskins Mark-characterizing "redskin" as "often contemptuous." The record evidence also includes references in renowned scholarly journals and books showing that "redskin" was offensive prior to 1967. Encyclopedia Britannica described its poor repute in 1911. The record evidence also shows that in 1972 NCAI, a national Native American organization founded in 1944, sent its president to accompany leaders of other Native American organizations at a meeting with the president of PFI to demand that the team's named be changed. NCAI also passed a resolution which provided that it has always found the term and team name "Redskins" to be derogatory, offensive, and disparaging.
PFI cites to no cases from either the Federal Circuit or the TTAB where the record contained evidence of (1) multiple dictionary definitions and usage labels showing that a term was "often offensive" and "often contemptuous"; (2) scholarly, literary, and media references in journals, books, newspaper articles and editorials, and encyclopedias referencing a term as "derogatory," "deprecatory," an "ethnophaulism," and a "racial epithet"; and (3) statements from individuals and organizations in the referenced group explaining how a mark consists of matter that is offensive to them, and the mark owner was still permitted to maintain a federal
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trademark registration. That is because the case law is clear: when all three categories contain evidence that a mark consists of matter that "may disparage" a substantial composite of the referenced group, the TTAB and the Federal Circuit have denied or cancelled the mark's registration.
This remains true even when there is also dictionary evidence that does not characterize the term as offensive, literary references using the term in a non-disparaging fashion, and statements from members of the referenced group demonstrating that they do not think the mark consists of matter that "may disparage." That is because Section 2(a) does not require a finding that every member of the referenced group thinks that the matter "may disparage." Nor does it mandate a showing that a majority of the referenced group considers the mark one that consists of matter that "may disparage." Instead, Section 2(a) allows for the denial or cancellation of a registration of any mark that consists of or comprises matter that "may disparage" a substantial composite of the referenced group.
The Court finds that Blackhorse Defendants have shown by a preponderance of the evidence that there is no genuine issue of material fact as to the "may disparage" claim: the record evidence shows that the term "redskin," in the context of Native Americans and during the relevant time period, was offensive and one that "may disparage" a substantial composite of Native Americans, "no matter what the goods or services with which the mark is used." In re Squaw Valley Dev. Co., 80 U.S.P.Q.2d 1264, 2006 WL 1546500, at *16 (T.T.A.B. 2006). "Redskin" certainly retains this meaning when used in connection with PFI's football team; a team that has always associated itself with Native American imagery, with nothing being more emblematic of this association than the use of a Native American profile on the helmets of each member of the football team.
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See supra. Accordingly, the Court finds that the Redskins Marks consisted of matter that amay disparage" a substantial composite of Native Americans during the relevant time period, 19671990, and must be cancelled. 1\lso, consistent with the parties' concession that Section 2(a) 's "may disparage" and ·'contempt or disrepute·· provisions use the same legal anal ys is, the Court further finds that the Redskins Marks consisted of matter that bring Nati ve Americans into "contempt or disrepute." Thus, Blackhorse Defendants are entitled to summary judgment on Count II. The Court so holds with the benefit of a supplemented record and post-2003 cases from the federal Circuit and TTAB applying Section 2(a) of the Lanham Act- items that the district court in f!aJjo was not privy to when it made its initial ruling. See Pro-Football, Inc. v. Harjo. 284 f. Supp. 2d 96 (D.D.C. 2003). Specifically, this record contained the following supplemental evidence: I. Evidence establishing that in I962, '·almost all the students at Haskell Institute resent[eel] being called redskins'" (at the time, Haske ll was a post-secondary vocational school for /\merican Indians, with 1,000 students); 2. Evidence establishing the NCA I, AIM, and other diverse Indian organ izations found common ground to fight the team name and met with PITs President in I 972 to demand that Pfl change the team name;
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3. Evidence establishing that in 1972, the University of Utah dropped the name "Redskins" due to concern that the term was offensive;
4. Evidence establishing further efforts by NCAI over several decades to bring about a change in PFI's team name;
5. Declarations from prominent Native Americans and representatives of Native American organizations regarding their own experiences with "redskin" used as a slur, their understanding of the term, and the basis of their understanding; and
6. Additional data analysis by Dr. Nunberg demonstrating the negative connotations of "redskin."
(See Doc. 71 at 2.) Also, the standard of review here is different than the standard in Harjo. In Harjo, the
court applied the APA's "substantial evidence" standard: "the Court will reverse the ITAB 's
findings of fact only if they are 'unsupported by substantial evidence."' Harjo, 284 F. Supp. 2d at 114 (citing 5 U.S.C. § 706). In Harjo, the TTAB made only limited findings of fact in two areas: linguists' testimony and survey evidence.29 Harjo, 284 F. Supp. 2d at 119. Thus, it was
only those two areas that were subjected to court scrutiny under the substantial evidence
standard. See id. Here, the ITAB made 39 findings of fact in two areas: "General Analysis of
the Word" and "Native American Objection to Use of the Word Redskins for Football Teams."
Blackhorse, 2014 WL 2757516, at *25-*28. Moreover, because the TTAB review in this case was brought pursuant to 15 U.S.C. § 1071(b), the Court reviews the entire record de novo-the
Court is not restricted to only reviewing the ITAB's findings of fact like the district court in
Harjo. Even if that was true, the ITAB's findings of fact in B/ackhorse were more thorough than the findings of fact in Harjo.
29 The survey was conducted by Harjo's survey expert Dr. Ivan Ross, President of Ross Research and a former Professor of Marketing and Adjunct Professor of Psychology with the Carlson School of Management of the University of Minnesota.
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D. Laches With regard to PFI's laches challenge, the Court DENIES PFI's Cross-Motion for
Summary Judgment on Claims I, II, and VII, and GRANTS Blackhorse Defendants' Motion for Summary Judgment on Counts I, II, and VII of Complaint for two reasons. The disparagement claim is not barred by laches because (1) Blackhorse Defendants did not unreasonably delay in petitioning the TTAB; and (2) the public interest at stake weigh against its application.
1. No Unreasonable Delay The laches defense, which PFI bears the burden of proving, requires proof of (I) "(a] lack of due diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Nat'/ R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121-22 (2002) (internal quotation marks omitted); see also Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 461 (4th Cir. 1996) (citation omitted) ("In a trademark case, courts may apply the doctrine of estoppel by laches to deny relief to a plaintiff who, though having knowledge of an infringement, has, to the detriment of the defendant, unreasonably delayed in seeking redress." (emphasis added)). The applicability of laches "depends upon the particular circumstances of the case." White v. Daniel, 909 F.2d 99, 102 (4th Cir. 1990) (citing Nat'/ Wildlife Fed v. Burford, 835 F.2d 305, 318 (D.C. Cir. 1987)). In order to prevail in its laches defense, PFI must prove that, after turning age 18, each Defendant unreasonably delayed in petitioning the TTAB to cancel the Redskins Marks. Brittingham v. Jenkins, 914 F.2d 447, 456 (4th Cir. 1990); see also Pro-Football, Inc. v. Harjo, 415 F.3d 44, 48-49 (D.C. Cir. 2005). Here, each of the Blackhorse Defendants was under the age of 18 in April 1999 when the TTAB granted the Harjo petition to cancel the Redskins Marks' registrations. (See Doc. 51 at 2; Doc. l ~ 17.) The Harjo proceedings in federal court
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concluded in 2009. Because Blackhorse Defendants filed their petition with the TTAB in 2006, while the Harjo proceedings were pending, the Court finds that they did not unreasonably or
unjustifiably delay in petitioning the TTAB. It was sensible for Blackhorse Defendants to see
how the cancellation proceedings in the district court progressed. As stated by Blackhorse Defendants, filing any earlier than 2006, one year after the district court's reversal of the
TTAB's finding that the Redskins Marks "may disparage," might have resulted in the filing of
unnecessary petitions. Thus, to the extent that Blackhorse Defendants did delay in filing their petition to cancel the Redskins Marks, the Court finds that the delay was not unreasonable. Accordingly, the Court holds that Blackhorse Defendants are entitled to summary judgment on Count VII.
2. Public Interest The Court holds that laches does not apply because of the public interest implicated. Public interest is a factor that weighs against the application of laches. See Resorts ofPinehurst, Inc. v. Pinehurst Nat'/ Corp., 148 F.3d 417, 423 (4th Cir. 1998). The Court agrees with the TTAB 's finding that there "is an overriding public interest in removing from the register marks that are disparaging to a segment of the population beyond the individual petitioners." Blackhorse, 2014 WL 2757516, at *32. The Court finds that the particular facts and circumstances of this case, namely that Blackhorse Defendants petitioned to cancel the Redskins Marks during other pending litigation seeking cancellation of the same marks on the same grounds (Harjo), demonstrate that the application of laches should be barred because of the public's interest in being free from encountering registered marks that "may disparage." Accordingly, the Court holds that the TTAB did not err in rejecting PFI's laches argument and Blackhorse Defendants are entitled to summary judgment on Count VII.
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CONCLUSION The Court DENIES PFI's Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment filed by Blackhorse Defendants and the United States of America. With regard to PFI's First Amendment challenge, the Court DENIES PFI's Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment filed by Blackhorse Defendants and the United States of America for two reasons. First, Section 2(a) of the Lanham Act does not implicate the First Amendment. Second, the federal trademark registration program is government speech and is therefore exempt from First Amendment scrutiny. With regard to PFI's Fifth Amendment challenge, the Court DENIES PFI's Motion for Summary Judgment on Constitutional Claims and GRANTS the cross-motions for summary judgment filed by Blackhorse Defendants and the United States of America for two reasons. First, Section 2(a) of the Lanham Act is not void for vagueness because (I) PFI cannot show that Section 2(a) is unconstitutional in all of its applications; (2) Section 2(a) gives fair warning of what conduct is prohibited; (3) Section 2(a) does not authorize or encourage ''arbitrary and discriminatory enforcement"; and (4) Section 2(a) is not impermissibly vague as-applied to PFI. Second, the Takings Clause and Due Process Clause claims fail because a trademark registration is not considered property under the Fifth Amendment. The Court DENIES PFI's Cross-Motion for Summary Judgment on Claims I, II, and VII, and GRANTS Blackhorse Defendants' Motion for Summary Judgment on Counts I, II, and VII of Complaint. With regard to PFI's "may disparage" claim, the Court DENIES PFI's CrossMotion for Summary Judgment on Claims I, II, and VII, and GRANTS Blackhorse Defendants' Motion for Summary Judgment on Counts I, II, and VII of Complaint because the (I) dictionary
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evidence; (2) literary, scholarly, and media references; and (3) statements of individuals and groups in the referenced group show that the Redskins Marks consisted of matter that amay disparage" a substantial composite of Native Americans during the relevant time period.
With regard to PFI's laches claim, the Court DENIES PFI's Cross-Motion for Summary Judgment on Claims I, II, and VII, and GRANTS Blackhorse Defendants' Motion for Summary Judgment on Counts I, II, and VII of Complaint for two reasons. First, the "may disparage" claim is not barred by laches because Blackhorse Defendants did not unreasonably delay in petitioning the TTAB. Second, laches does not apply because of the public interest at stake.
The Court has applied the Lanham Act to the issue presented in this trademark cancellation proceeding: whether a substantial composite of Native Americans deem the term "redskin" as one that "may disparage" in the context of PFI's Redskins Marks during the relevant time period. The evidence before the Court supports the legal conclusion that between 1967 and 1990, the Redskins Marks consisted of matter that "may disparage" a substantial composite of Native Americans. Section 2(a) of the Lanham Act requires cancellation of the registrations of PFI's Redskins Marks, resulting in their removal from the PTO's Principal Register.
To be clear, the Court's judgment is not an order that precludes PFI from using the marks in commerce. Nor does the Court's ruling that the Redskins Marks consisted of matter that "may disparage" a substantial composite of Native Americans during the relevant time period preclude sports fans from collecting, wearing, or displaying the Redskins Marks. Courts do not create trademarks; only businesses like PFI control their own destiny with respect to how the public discerns the source and origin ofPFI's goods and services. What actions, if any, PFI takes going forward with the marks are a business judgment beyond the purview of this Court's jurisdiction.
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Accordingly, it is hereby ORDERED that PFI's Motion for Summary Judgment on Constitutional Claims (Doc. 54) and Cross-Motion for Summary Judgment on Claims I, II, and VII (Doc. 79) are DENIED; it is further ORDERED that Blackhorse Defendants' Cross-Motion for Summary Judgment on Claims Ill-VI (Doc. 105), the United States of America's Motion for Summary Judgment on Constitutional Claims (Doc. I 08), and Blackhorse Defendants' Motion for Summary Judgment on Counts I, II, and VII of Complaint (Doc. 69) are GRANTED; it is further ORDERED that the TIAB's ruling in Blackhorse v. Pro-Football, Inc., Ill U.S.P.Q.2d 1080,2014 WL 2757516 (T.T.A.B. 2014), is AFFIRMED; and it is further ORDERED that the United States Patent and Trademark Office is DIRECTED to schedule the cancellation of the registrations for the following six marks: Registration No. 0836122, Registration No. 0978824, Registration No. 098666, Registration No. 0987127, Registration No. 1085092, and Registration No. 160681 0. IT IS SO ORDERED.
ENTERED this j/1<- day of July, 2015.

Alexandria, Virginia 7/ y/2015

/S/
Gerald Bruce Lee United States District Judge

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

PRO-FOOTBALL, INC., Plaintiff,
v. AMANDA BLACKHORSE, et al.,
Defendants.

) ) ) ) ) Civil Action No. 1:14-cv-1043 (GBL/IDD) ) ) ) ) )

NOTICE OF INTERVENTION BY THE UNITED STATES OF AMERICA TO DEFEND THE CONSTITUTIONALITY OF A FEDERAL STATUTE Pursuant to Federal Rules of Civil Procedure 5.1(c) and 24(a)(1), and in accordance with the authorization of the Solicitor General of the United States, the United States hereby intervenes in this case for the limited purpose of defending the constitutionality of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a). Plaintiff, Pro-Football, Inc., asserted in its Complaint, ECF No. 1, and in its Notice of Constitutional Question, ECF No. 17, that it is asserting a facial and as-applied challenge to the constitutionality of Section 2(a). Specifically, Plaintiff claims that Section 2(a) violates the First Amendment to the U.S. Constitution. The United States will engage the current parties with the aim of developing a schedule for the briefing of dispositive motions on the constitutional question, which will include the United States’s memorandum in response to the constitutional challenge. The United States is entitled to intervene in this case as of right pursuant to the Federal Rules of Civil Procedure and statute. Federal Rule of Civil Procedure 5.1(c) permits the Attorney General to intervene in an action as of right when, as here, the constitutionality of a
1

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federal statute has been challenged. Federal Rule of Civil Procedure 24(a)(1) further permits a non-party to intervene when the non-party “is given an unconditional right to intervene by a federal statute.” Fed. R. Civ. P. 24(a)(1). The United States is specifically authorized by federal statute to intervene in any federal action in which the constitutionality of an Act of Congress is drawn into question. 28 U.S.C. § 2403(a) (“In any action . . . wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court . . . shall permit the United States to intervene . . . for argument on the question of constitutionality.”). Here, where Plaintiff has provided notice of its challenge to the constitutionality of the Lanham Act, 28 U.S.C. § 2403(a) unconditionally allows the United States to intervene to defend the constitutionality of the Act. See Oklahoma ex rel. Edmondson v. Pope, 516 F.3d 1214, 1216 (10th Cir. 2008) (citing 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1915 (2d ed.1986)).
Intervention by the United States will not interfere with the timely adjudication of this action. As the United States explained in its Acknowledgment of Constitutional Challenge, ECF No. 33, the United States intends to coordinate its briefing with any schedule established for the parties’ briefing of motions related to the constitutional challenge. This notification is also timely. The Court authorized the United States to file this notice on or before January 9, 2015. See Order, ECF No. 38 (Nov. 12, 2014).
For these reasons, the United States hereby provides notice of intervention in this matter for the purpose of defending the constitutionality of Section 2(a) of the Lanham Act.
/// ///
2

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Dated: January 9, 2015

Respectfully submitted,
JOYCE R. BRANDA Acting Assistant Attorney General
DANA J. BOENTE United States Attorney
/s/ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, Virginia 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: Dennis.Barghaan@usdoj.gov
JOHN R. GRIFFITHS Branch Director ARTHUR R. GOLDBERG Assistant Branch Director ERIC J. SOSKIN (PA Bar 200663) Senior Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 Tel: (202) 353-0533 Fax: (202) 305-2685 Email: Eric.Soskin@usdoj.gov
Attorneys for the United States

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CERTIFICATE OF SERVICE
I hereby certify that on the 9th day of January, 2015 I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:

Craig C. Reilly, Esq. THE LAW OFFICE OF CRAIG C. REILLY
111 Oronoco Street Alexandria, Virginia 22314 craig.reilly@ccreillylaw.com
Jesse A. Witten Jeffrey J. Lopez Adam Scott Kunz Tore T. DeBella Jennifer Criss DRINKER BIDDLE & REATH LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 email: Jesse.Witten@dbr.com; Jeffrey.Lopez@dbr.com; Adam.Kunz@dbr.com; Tore.DeBella@dbr.com; Jennifer.Criss@dbr.com

Date: January 9, 2015

________/s/__________________________ DENNIS C. BARGHAAN, JR. Assistant United States Attorney 2100 Jamieson Avenue Alexandria, VA 22314 Tel.: (703) 299-3891 Fax: (703) 299-3983 Email: Dennis.Barghaan@usdoj.gov
Attorneys for the United States

4

 
 Case 1:14-cv-01043-GBL-IDD Document 54 Filed 02/23/15 Page 1 of 3 PageID# 559

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

PRO-FOOTBALL, INC., Plaintiff,

Civil Action No. 1:14-cv-1043-GBL-IDD

v.

AMANDA BLACKHORSE, MARCUS BRIGGS-CLOUD, PHILLIP GOVER, JILLIAN PAPPAN, and COURTNEY TSOTIGH,

Defendants,

and UNITED STATES OF AMERICA,
Intervenor.

PRO-FOOTBALL, INC.’S MOTION FOR SUMMARY JUDGMENT ON CONSTITUTIONAL CLAIMS III-VI
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiff Pro-Football, Inc. moves the Court to enter summary judgment in its favor on Claims III-VI of its Complaint [Dkt. 1]. The grounds and reasons for granting this relief are stated with particularity in PFI’s accompanying Memorandum of Law in Support of Its Motion for Summary Judgment on Constitutional Claims III – VI and brief and the accompanying declarations of Todd Anten and Jeffery A. Handelman.

Case 1:14-cv-01043-GBL-IDD Document 54 Filed 02/23/15 Page 2 of 3 PageID# 560

Dated: February 23, 2015

Respectfully submitted,
/s/ Craig C. Reilly Craig C. Reilly, Esq. (VSB # 20942) craig.reilly@ccreillylaw.com THE LAW OFFICE OF CRAIG C. REILLY 111 Oronoco Street Alexandria, Virginia 22314 Tel: (703) 549-5354 Fax: (703) 549-5355
Robert L. Raskopf (pro hac vice) robertraskopf@quinnemanuel.com Todd Anten (pro hac vice) toddanten@quinnemanuel.com Claudia T. Bogdanos (pro hac vice) claudiabogdanos@quinnemanuel.com Jessica A. Rose (pro hac vice) jessicarose@quinnemanuel.com Jennifer D. Bishop (pro hac vice) jenniferbishop@quinnemanuel.com QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Tel: (212) 849-7000 Fax: (212) 849-7100
Counsel for Plaintiff Pro-Football, Inc.

- 2 -

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CERTIFICATE OF SERVICE
I hereby certify that on February 23, 2015, I caused the foregoing pleading or paper to be
filed and served electronically by the Court’s CM/ECF system upon all registered users in this
action, including the following counsel of record:
Jesse A. Witten Jeffrey J. Lopez Adam Scott Kunz Tore T. DeBella Jennifer Criss DRINKER BIDDLE & REATH LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 Tel : (202) 842-8800 Fax : (202) 842-8465 Jesse.Witten@dbr.com Jeffrey.Lopez@dbr.com Adam.Kunz@dbr.com Tore.DeBella@dbr.com Jennifer.Criss@dbr.com

Dated: February 23, 2015

/s/ Craig C. Reilly Craig C. Reilly, Esq. (VSB # 20942) craig.reilly@ccreillylaw.com THE LAW OFFICE OF CRAIG C. REILLY 111 Oronoco Street Alexandria, Virginia 22314 Tel: (703) 549-5354 Fax: (703) 549-5355

 
 Case 1:14-cv-01043-GBL-IDD Document 56 Filed 02/23/15 Page 1 of 41 PageID# 566

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

PRO-FOOTBALL, INC., Plaintiff,

Civil Action No. 1:14-cv-1043-GBL-IDD

v.

AMANDA BLACKHORSE, MARCUS BRIGGS-CLOUD, PHILLIP GOVER, JILLIAN PAPPAN, and COURTNEY TSOTIGH,

Defendants,

and UNITED STATES OF AMERICA,
Intervenor.

PRO-FOOTBALL, INC.’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT ON CONSTITUTIONAL CLAIMS III - VI

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TABLE OF CONTENTS

Page

INTRODUCTION ...........................................................................................................................1 STATEMENT OF UNDISPUTED FACTS ....................................................................................2 LEGAL STANDARD......................................................................................................................5 ARGUMENT ...................................................................................................................................5 I. SECTION 2(A) VIOLATES THE FIRST AMENDMENT ................................................5
A. Section 2(a) Restricts Protected Speech, Including The Redskins Marks, And So Must Be Subject To First Amendment Scrutiny.........................................7 1. Section 2(a) Regulates Protected Speech, As Applied And On Its Face .........................................................................................................7 2. Section 2(a) Imposes Burdens On PFI And Trademark Holders.................8 3. Section 2(a) Conditions Access To Federal Benefits On Restrictions Of PFI’s And Other Brand Owners’ Speech .........................11
B. Section 2(a) Is Unconstitutional On Its Face And As Applied to PFI ...................14 1. The Government Has No Substantial Interest In Enforcing Section 2(a) ................................................................................................14 2. There Is No “Fit” Between The Government’s Interests And Section 2(a) ................................................................................................16
II. SECTION 2(A) IS UNCONSTITUTIONALLY VAGUE................................................18 A. Section 2(a) Does Not Provide Notice As To Which Marks “May Disparage” ..............................................................................................................18 B. Section 2(a) Authorizes Arbitrary And Discriminatory Enforcement ...................20 C. Section 2(a) Is Impermissibly Vague As Applied To PFI .....................................22
III. THE TTAB’S ORDER UNCONSTITUTIONALLY TAKES PFI’S PROPERTY..........23 A. The Redskins Marks Are Property Protected By The Takings Clause ..................24 B. Cancellation of the Redskins Marks Effects A Regulatory Taking .......................25
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Case 1:14-cv-01043-GBL-IDD Document 56 Filed 02/23/15 Page 3 of 41 PageID# 568 C. The Taking of PFI’s Property Was For A Public Use But Exceeds Constitutional Limitations .....................................................................................27 D. PFI Was Unconstitutionally Denied Just Compensation .......................................28
IV. PFI HAS BEEN DEPRIVED OF ITS PROPERTY WITHOUT DUE PROCESS...........28 A. The Redskins Marks Are “Property” Under The Due Process Clause ..................29 B. PFI Was Denied Due Process By Delay Causing Substantial Prejudice ...............29
CONCLUSION ..............................................................................................................................30
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TABLE OF AUTHORITIES
Page
Cases
Adolph Coors Co. v. Bentsen, 2 F.3d 355 (10th Cir. 1993) .....................................................................................................17
Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321 (2013) .............................................................................................................11
Am. Legion Post 7 of Durham, N.C. v. City of Durham, 239 F.3d 601 (4th Cir. 2001) ...................................................................................................14
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...................................................................................................................5
Autor v. Pritzker, 740 F.3d 176 (D.C. Cir. 2014) .................................................................................................12
Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth., 134 F.3d 87 (2d Cir. 1998)...................................................................................................8, 17
Bd. of Regents v. Roth, 408 U.S. 564 (1972).................................................................................................................29
Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989).................................................................................................................16
Berman v. Parker, 348 U.S. 26 (1954)...................................................................................................................27
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983).............................................................................................................15, 17
Brown v. Cal. Dep’t of Transp., 321 F.3d 1217 (9th Cir. 2003) .................................................................................................13
Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988) .................................................................................11, 12, 19, 20
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557 (1980)...........................................................................................................14, 16
CPC Int’l, Inc. v. Skippy, Inc., 214 F.3d 456 (4th Cir. 2000) .....................................................................................................8
Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062 (4th Cir. 2006) ...........................................................................................13, 22
City of Chi. v. Morales, 527 U.S. 41 (1999).............................................................................................................18, 20 iii REDACTED FOR PUBLIC FILING

Case 1:14-cv-01043-GBL-IDD Document 56 Filed 02/23/15 Page 5 of 41 PageID# 570
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988)...........................................................................................................22, 23
Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013) .....................................................................................................6
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).................................................................................................................29
Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999)...........................................................................................................25, 29
Columbia Union Coll. v. Clarke, 159 F.3d 151 (4th Cir. 1998) ...................................................................................................12
Cuffley v. Mickes, 208 F.3d 702 (8th Cir. 2000) .........................................................................................6, 12, 17
Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995) ...................................................................................................19
Dep’t of Texas, Veterans of Foreign Wars of U.S. v. Texas Lottery Comm’n, 760 F.3d 415 (5th Cir. 2013) ..................................................................................................12
Edenfield v. Fane, 507 U.S. 761 (1993).................................................................................................................16
Educ. Media Co. at Va. Tech, Inc. v. Insley, 731 F.3d 291 (4th Cir. 2013) ...............................................................................................8, 14
Fields v. Prater, 566 F.3d 381 (4th Cir. 2009) ...................................................................................................11
Glynn v. EDO Corp., 710 F.3d 209 (4th Cir. 2013) .....................................................................................................5
Goldberg v. Kelly, 397 U.S. 254 (1970).................................................................................................................29
Grayned v. City of Rockford, 408 U.S. 104 (1972)...........................................................................................................18, 21
Hannegan v. Esquire, Inc., 327 U.S. 146 (1946).................................................................................................................12
Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d 1705 (T.T.A.B. 1999) ................................................................................19, 20
In re Boulevard Entm’t, Inc., 334 F.3d 1336 (Fed. Cir. 2003)................................................................................................13
In re Deister Concentrator Co., 289 F.2d 496 (C.C.P.A. 1961) .................................................................................................27
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Case 1:14-cv-01043-GBL-IDD Document 56 Filed 02/23/15 Page 6 of 41 PageID# 571
In re Heeb Media, LLC, 89 U.S.P.Q.2d 1071, 2008 WL 5065114 (T.T.A.B. 2008) ................................................20, 21
In re In Over Our Heads Inc., 16 U.S.P.Q.2d 1653 (T.T.A.B. 1990) ......................................................................................21
In re Mavety Media Grp. Ltd., 33 F.3d 1367 (Fed. Cir. 1994)..................................................................................................13
In re Squaw Valley Dev. Co., 80 U.S.P.Q.2d 1264 (T.T.A.B. 2006) ......................................................................................21
In re Under Seal, 749 F.3d 276 (4th Cir. 2014) .....................................................................................................2
Hornell Brewing Co., Inc. v. Brady, 819 F. Supp. 1227 (E.D.N.Y. 1993) ....................................................................................8, 16
Hoschar v. Appalachian Power Co., 739 F.3d 163 (4th Cir. 2014) .....................................................................................................5
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)...................................................................................................................15
Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982) ...................................................................................................17
Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366 (1st Cir. 1980) ....................................................................................................25
Kelo v. City of New London, Conn., 545 U.S. 469 (2005).................................................................................................................28
Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001).................................................................................................................11
Lytle v. Doyle, 326 F.3d 463 (4th Cir. 2003) ...................................................................................................22
McAirlaids, Inc. v. Kimberly-Clark Corp., 756 F.3d 307 (4th Cir. 2014) ...................................................................................................29
In re McGinley, 660 F.2d 481 (C.C.P.A. 1981) ...........................................................................................13, 14
Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974)...................................................................................................................9
N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) ...................................................................................................20
Nat’l Abortion Fed’n v. Metro. Atlanta Rapid Transit Auth., 112 F. Supp. 2d 1320 (N.D. Ga. 2000) ....................................................................................20
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Case 1:14-cv-01043-GBL-IDD Document 56 Filed 02/23/15 Page 7 of 41 PageID# 572
Norfolk 302, LLC v. Vassar, 524 F. Supp. 2d 728 (E.D. Va. 2007) ..........................................................................18, 20, 22
PSINet, Inc. v. Chapman, 362 F.3d 227 (4th Cir. 2004) .....................................................................................................9
Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189 (1985).................................................................................................................12
Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).................................................................................................................25
Penn. Coal Co. v. Mahon, 260 U.S. 393 (1922)...........................................................................................................25, 26
Perry v. Sindermann, 408 U.S. 593 (1972)...........................................................................................................11, 29
Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744 (5th Cir. 2006) .....................................................................................................7
Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96 (D.D.C. 2003) .................................................................................2, 19, 20
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980)...................................................................................................................25
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992)...................................................................................................................6
Rex, Inc. v. Kusha, Inc., 2001 WL 209899 (W.D.N.Y. Feb. 23, 2001) ..........................................................................29
Rodriguez v. Maricopa Cty. Comm. Coll. Dist., 605 F.3d 703 (9th Cir. 2010) ...................................................................................................15
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995)...................................................................................................5, 6, 11, 13
Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).....................................................................................................24, 25, 26
Sambo’s Restaurants, Inc. v. City of Ann Arbor, 663 F.2d 686 (6th Cir. 1981) ...............................................................................................8, 17
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991).............................................................................................................9, 10
Smith v. Goguen, 415 U.S. 566 (1974).................................................................................................................18
Snyder v. Phelps, 562 U.S. 443, 131 S. Ct. 1207 (2011)..................................................................................7, 17
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Case 1:14-cv-01043-GBL-IDD Document 56 Filed 02/23/15 Page 8 of 41 PageID# 573
Sons of Confederate Veterans, Inc. v. Glendening, 954 F. Supp. 1099 (D. Md. 1997) ........................................................................................6, 13
Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011) ...................................................................................................8, 14, 17
Stoller v. Ponce, 113 F. App’x 403 (Fed. Cir. 2004) ..........................................................................................28
Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Prot., 560 U.S. 702 (2010).................................................................................................................25
Texas v. Johnson, 491 U.S. 397 (1989).................................................................................................................16
In re Trade-Mark Cases, 100 U.S. 82 (1879)...................................................................................................................24
United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 2006) .............................................................................................22, 23
United States v. Eichman, 496 U.S. 310 (1990).................................................................................................................15
United States v. Lanning, 723 F.3d 476 (4th Cir. 2013) .............................................................................................18, 23
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).............................................................................................................8, 15
Wishnatsky v. Rovner, 433 F.3d 608 (8th Cir. 2006) .....................................................................................................6
Withrow v. Larkin, 421 U.S. 35 (1975)...................................................................................................................30
Zoltek Corp. v. United States, 442 F.3d 1345 (Fed. Cir. 2006)................................................................................................24
Statutes and Regulations
15 U.S.C. § 1051............................................................................................................................29
15 U.S.C. § 1057........................................................................................................................4, 13
15 U.S.C. § 1060............................................................................................................................25
15 U.S.C. § 1065..............................................................................................................................4
15 U.S.C. § 1067............................................................................................................................28
15 U.S.C. § 1115..............................................................................................................................4 vii
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15 U.S.C. § 1116..............................................................................................................................4 15 U.S.C. § 1117..............................................................................................................................4 15 U.S.C. § 1072..............................................................................................................................4 15 U.S.C. § 1125..............................................................................................................................4 37 C.F.R. § 2.129(a).......................................................................................................................28 Act of July 5, 1946, Pub. L. No. 79-489, 60 Stat. 427 (1946) .................................................17, 26 Haw. Rev. Stat. § 482-21(2) ..........................................................................................................26 N.M. Stat. Ann. § 57-3B-4(2) ........................................................................................................26 W. Va. Code, § 47-2-2(2) ..............................................................................................................26
Additional Authorities Brief for Appellee—Director of the PTO, In re Tam, No. 14-1203,
Dkt. 36 (Fed. Cir. Aug. 4, 2014) .........................................................................................8, 15 Bartholomew Diggins, The Lanham Trade-Mark Act, 35 GEO. L. J. 147 (1947)..........................27 Hearings on H.R. 4744 Before the Subcomm. on Trademarks of the
H. Comm. on Patents, 76th Cong., 1st Sess. (1939) ..........................................................15, 19 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS & UNFAIR COMPETITION
(4th ed.) ..............................................................................................................................24, 26 Trademark Manual of Examining Procedure § 1203.03(b) ...........................................................21
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INTRODUCTION “Washington Redskins” is among the most famous trademarks in sports. Adopted in 1933, it was first approved and registered by the United States Patent and Trademark Office (“PTO”) in 1967. Five additional variations of “Redskins” trademarks were approved and registered between 1974 and 1990 (collectively, the “Redskins Marks”). Now, almost fifty years later, the PTO has changed its mind, scheduling the cancellation of the Redskins Marks under Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a),1 on the ground that they “may [have] disparage[d]” Native Americans when they were first registered. This recent about-face improperly singles out ProFootball, Inc. (“PFI”) for disfavored treatment based solely on the content of its protected speech, interfering with the ongoing public discourse over the Redskins’ name by choosing sides and cutting off the debate. This the U.S. Constitution does not tolerate. The June 18, 2014 cancellation order of the Trademark Trial and Appeal Board (the “TTAB Order,” at A13977-14153)2 violates the U.S. Constitution in four separate ways: 1. By enabling the PTO to cancel PFI’s registrations, and their concomitant benefits, based
solely on the perceived viewpoint of PFI’s protected First Amendment speech, and certainly without directly advancing a substantial and legitimate state interest; 2. By offering no meaningful notice to PFI or other trademark owners as to what is a “disparaging” mark, nor objective standards for the PTO to apply; 3. By enabling a regulatory taking of PFI’s property for an unconstitutional public use without just compensation under the Takings Clause; and
1 As used in this memorandum, the term “Section 2(a)” refers only to the portion of 15 U.S.C. § 1052(a) addressing whether a mark “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 2 Citations to “A____” are to the certified record of the proceedings below, which has been transmitted and admitted to this Court. (See Declaration of Todd Anten (“Anten Decl.”) ¶¶2-4).
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4. By depriving PFI of its long-held registrations without the due process required by the Fifth Amendment.
Of course, this Court need not even address the instant motion if the Court determines—as it should—that the Redskins Marks were not disparaging to a substantial composite of Native Americans at the time that each mark was registered. See In re Under Seal, 749 F.3d 276, 293 (4th Cir. 2014) (affirming “long-established constitutional-avoidance rule”); Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96, 100-01 (D.D.C. 2003) (refusing to address constitutional claims on nearly identical record because of an absence of evidence that the Redskins Marks disparaged a substantial composite of Native Americans at the time of their respective registrations). But if this Court does not so hold, it should nonetheless recognize that the TTAB Order offends the U.S. Constitution on multiple grounds. PFI’s motion for summary judgment should be granted.
STATEMENT OF UNDISPUTED FACTS 1. The team name “Redskins” was selected in 1933 by the Redskins’ then-owner George Preston Marshall, when the franchise was located in Boston. The name “Redskins” has been used by the franchise continuously since 1933. (Dkt. 1 ¶34; Dkt. 41 ¶34). 2. The Redskins Marks were registered by the PTO in 1967, 1974, 1978, and 1990. (Dkt. 51 ¶8(a)-(f)). The registrations for the Redskins Marks were renewed in 1987, 1994, 1998, and 2004. (Id.). The registrations for the Redskins Marks were again renewed in 2004, 2005, 2007, 2014, and 2015. (Id.). PFI owns, and has always owned, the Redskins Marks. (Id.). 3. At the various times that each of the Redskins Marks was registered, the word “redskins” was used by Native Americans as a name for Native American sports teams. (See Anten Decl. ¶5(a)-(mm) & Exs. 2-40).
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4. Since they were registered, PFI has invested millions of dollars in the use, promotion, registration, and protection of the Redskins Marks. For example, PFI invested _________ in marketing and promotional expenses for the years 1975, 1976, and 1980-1992 combined, as well as an additional _________ in marketing and promotional expenses between April 1, 1999 and March 31, 2007. (A310-12 ¶¶4-8; Anten Decl. ¶¶7(a)-(h), 8 & Exs. 41-48).
5. Since the Redskins Marks were registered, PFI and NFL Properties LLC and its predecessor corporation National Football League Properties, Inc. (collectively, “NFLP”) have also expended money and other resources to protect PFI’s trademark rights from infringement and dilution. (A312 ¶9).
6. Corporate sponsors vie to associate products and services with the Redskins Marks, and merchandise bearing the Redskins Marks is widely sold, purchased, and recognized. (A310 ¶5).
7. The Redskins’ brand, including the Redskins Marks, is extraordinarily valuable. For example, according to Forbes magazine, the team’s value increased from approximately $741 million in 2000 to approximately $1.423 billion in 2006. (A314 ¶13). Further, Forbes’ valuations of PFI’s brand management were approximately $112 million and $130 million for the years 2005 and 2006, respectively. (Id. ¶14). As of August 2014, the team was valued at $2.4 billion, with its brand management valued at $214 million. (Anten Decl. ¶11 & Ex. 51).
8. Cancellation of Redskins Marks’ registrations would affect the value of PFI’s Marks. (A314 ¶15).
9. A federal trademark registration provides numerous legal benefits to registrants, including, inter alia: (1) prima facie evidence of validity, ownership, and exclusive use (see Declaration of Jeffery A. Handelman, Ex. 1 (“Handelman Rep.”), at 7); (2) constructive notice of ownership (id.); (3) constructive use priority from the filing date of the application (id. at 7-8); (4)
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allowing the registrant to pursue counterfeiting claims and remedies (id. at 9); (5) allowing the registrant to stop the importation of infringing goods (id. at 10); and (6) providing a basis for obtaining registration in foreign countries (id. at 10-11). See also 15 U.S.C. §§ 1057(b)-(c), 1115(a), 1116(d), 1117(b)-(c), 1072.
10. A federal trademark registration provides additional benefits to trademarks that have been registered for many years, including allowing a mark to become “incontestable” after five years of registration, which provides conclusive evidence of: (1) the mark’s validity; (2) the registrant’s ownership of the mark; and (3) registrant’s exclusive right to use the mark. (Handelman Rep. at 1415). Each of the Redskins Marks was incontestable at the time of its cancellation. (Dkt. 51 ¶8(a)(f)). In addition, federal registration provides supporting evidence that a mark is famous—a prerequisite for a Lanham Act dilution claim. (Handelman Rep. at 9-10); see also 15 U.S.C. §§ 1125(c), 1065, 1115(b).
11. A federal trademark registration also provides an easily accessible public record of trademark rights, which: (1) prevents unwitting infringement by users (Handelman Rep. at 11); (2) prevents trademark examiners from approving confusingly similar marks for registration (id. at 7-9); and (3) serves as a strong enforcement tool to deter infringement (id. at 6-7, 11).
12. The benefits described above in ¶¶9-11 above are not available to trademark owners who have been denied a federal registration, nor to trademark owners such as PFI whose federal registrations for their marks have been cancelled. (Id. at 16-17).
13. On March 7, 2013, the announced panel of three TTAB judges—Administrative Trademark Judges Kuhlke, Cataldo, and Bergsman—held a hearing on the merits of Defendants’ petition for cancellation of the Redskins Marks. (A13976-77).
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LEGAL STANDARD A motion for summary judgment shall be granted if the pleadings and supporting documents “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court is to “view the facts and draw all reasonable inferences in the light most favorable to the non-moving party.” Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). “However, to show that a genuine issue of material fact exists, the non-moving party must set forth specific facts that go beyond the ‘mere existence of a scintilla of evidence.’” Hoschar v. Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
ARGUMENT I. SECTION 2(A) VIOLATES THE FIRST AMENDMENT
As applied by the TTAB, Section 2(a) discriminates against PFI for using its eighty-year-old “Washington Redskins” team name. Notwithstanding the TTAB’s erroneous conclusion that the Redskins Marks “may [have] disparage[d]” Native Americans at the time each was first registered, the reality is that the connotation of the team’s name is the subject of considerable public debate. The TTAB Order regulates only one side of that debate by punishing PFI’s use of the Redskins Marks, which transmits PFI’s message that the “Redskins” name, considered in its proper context, is being used in a respectful manner. By improperly singling out PFI for disfavored treatment based on its use of the Redskins Marks, the TTAB Order “distort[s] public debate” “with a censorial intent to value some forms of speech over others.” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 556 (4th Cir. 2013). And it does so without directly advancing any legitimate and substantial state interest, in violation of the First Amendment.
Moreover, although “[i]t is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys,” Section 2(a) does both on its face. Rosenberger
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v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995) (emphases added). Section 2(a)’s
plain text regulates marks based on whether their content “may disparage … persons.” This is a
particularly “egregious form of content discrimination,” id. at 829, because it distinguishes between
marks based on their viewpoints—a mark that is determined to disparage certain persons, e.g.,
Native Americans, cannot hold a federal registration, but a mark that is neutral toward or celebrates the same persons may be registered. See, e.g., INDIAN MOTORCYCLE (Reg. No. 4,676,623);3
CHIEF BE BRAVE (Reg. No. 4,272,316); AMERICAN INDIAN HERITAGE MONTH (Reg. No.
3,224,673); SIOUX CHIEF (Reg. No. 4,543,647). Viewpoint-based regulations such as Section 2(a)
generally amount to “blatant” violations of the First Amendment. Rosenberger, 515 U.S. at 829.
This effectively ends the analysis here—the Court can and should find Section 2(a) unconstitutional
on the basis of its viewpoint-based restrictions alone. See, e.g., Wishnatsky v. Rovner, 433 F.3d 608, 611-12 (8th Cir. 2006) (viewpoint discrimination violates First Amendment principles).4
Even if this Court does not determine that Section 2(a) is an impermissible viewpoint-based
restriction, Section 2(a) nonetheless violates the First Amendment, both as applied to PFI and
facially, because it: (1) restricts protected speech; and (2) does not directly advance a substantial and
legitimate state interest.
3 The INDIAN MOTORCYCLE mark, registered for motorcycle tents, includes a profile of a man wearing a Native American headdress. The owner’s additional mark, INDIAN (Reg. No. 921,459), is registered for motorcycles—one of which is popularly referred to as the “Iron Redskin.” (A985060). 4 See also, e.g., Rosenberger, 515 U.S. at 830-32 (policy that denied funding to student newspapers that expressed a religious viewpoint violated First Amendment); Cuffley v. Mickes, 208 F.3d 702, 708, 711-12 (8th Cir. 2000) (regulation preventing Adopt-A-Highway applicants from expressing discriminatory viewpoint violated the First Amendment); Sons of Confederate Veterans, Inc. v. Glendening, 954 F. Supp. 1099, 1102 (D. Md. 1997) (guidelines that proscribed “hostile and racially derogatory expressions from any point of view” violated First Amendment); cf. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 389 (1992) (“State may not prohibit only that commercial advertising that depicts men in a demeaning fashion”).
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A. Section 2(a) Restricts Protected Speech, Including The Redskins Marks, And So Must Be Subject To First Amendment Scrutiny
The application of the First Amendment to Section 2(a) is straightforward: because it burdens and denies benefits to protected speech, both facially and as applied to the Redskins Marks, it implicates First Amendment principles and thus must be subjected to First Amendment scrutiny. Defendants and the Government may attempt to sidestep application of the First Amendment by arguing that Section 2(a) does not prohibit the use of the Redskins Marks or other unregistered trademarks; that position, however, contravenes decades of jurisprudence recognizing that the denial of federal benefits to disfavored speech squarely implicates the First Amendment and thus must satisfy its exacting standards.
1. Section 2(a) Regulates Protected Speech, As Applied And On Its Face As applied here, Section 2(a) regulates PFI’s protected speech. The TTAB Order affects PFI’s message in the ongoing public debate about the Washington Redskins’ team name, which PFI has consistently maintained is, in this context, respectful of Native Americans. What PFI says in this debate, as well as “the whole context of how and where it [chooses] to say it,” “is entitled to ‘special protection’ under the First Amendment” as a form of protected speech. Snyder v. Phelps, 562 U.S. 443, 131 S. Ct. 1207, 1219 (2011). Moreover, the TTAB Order, as well as all other applications of Section 2(a), affect trademarks, which the Government has already conceded “are a form of commercial speech.” Br. for Appellee—Dir. of the USPTO at 34 n.5, In re Tam, No. 14-1203, Dkt. 36 (Fed. Cir. Aug. 4, 2014) (“PTO Tam Br.”); see also Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752-53 (5th
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Cir. 2006) (trade names “Cajun Boy” and “Cajun Delight” are commercial speech).5 As the Fourth Circuit recognizes, “commercial speech is protected by the First Amendment.” Educ. Media Co. at Va. Tech, Inc. v. Insley, 731 F.3d 291, 297 (4th Cir. 2013). Indeed, because trademarks “provide consumers with information about the quality of goods” and services, see CPC Int’l, Inc. v. Skippy, Inc., 214 F.3d 456, 461 (4th Cir. 2000), they are central to the First Amendment’s protection of the “free flow of commercial information,” Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976); see also Sambo’s Restaurants, Inc. v. City of Ann Arbor, 663 F.2d 686, 694 (6th Cir. 1981) (trade name conveyed information “because of the associations that have grown up over time between the name and the [price and quality of goods and services]”). Because Section 2(a) by definition regulates this protected speech, it necessarily implicates the First Amendment.
2. Section 2(a) Imposes Burdens On PFI And Trademark Holders The First Amendment prohibits lawmakers from “silenc[ing] unwanted speech by burdening its utterance,” just as it prohibits them from banning speech outright. Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2664 (2011). Section 2(a) thus infringes First Amendment rights because it burdens the Redskins Marks and other marks that the PTO determines to be disfavored. Specifically, the denial or cancellation of a federal trademark registration under Section 2(a) penalizes the use of certain trademarks. Without a federal registration, enforcement of trademark rights becomes exponentially more burdensome. (See supra SUF ¶¶9-12; Handelman Rep. at 1617). At the same time, future infringement is more likely because federal registration provides a
5 See also, e.g., Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth., 134 F.3d 87, 96-97 (2d Cir. 1998) (source-identifying product label akin to trademark and thus commercial speech); Hornell Brewing Co., Inc. v. Brady, 819 F. Supp. 1227, 1233 (E.D.N.Y. 1993) (“The Crazy Horse Malt Liquor label is indisputably commercial speech.”).
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strong message and warning of the existence of exclusive rights. (Handelman Rep. at 6-7). Further, denial of a federal registration under Section 2(a) may affect a trademark holder’s state and common-law rights. See infra Part III.B.
And when the TTAB cancels a previously-granted registration, as it has done here, the penalties suffered by the trademark owner are even more severe. Having already used and promoted its mark—in some cases, for decades, such as PFI—the owner must choose between abandoning its valuable investment (and the invaluable goodwill associated with its longstanding marks) or paying the hefty cost of enforcement without a registration. Owners of marks that have been registered for more than five years also lose the additional benefits of owning an “incontestable” mark, including possession of conclusive evidence of key elements of an infringement claim. (Handelman Rep. at 14-15, 17). And, of course, the very fact of a public cancellation is likely to spur infringement. PFI, whose Redskins Marks were incontestable after nearly fifty years of federal registration, will bear all of these burdens. (See id. 16-17).
The First Amendment requires that speech-based burdens be closely scrutinized because, even though they may not outright prohibit speech, they may nonetheless “effectively drive certain ideas or viewpoints from the marketplace.” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991).6 Section 2(a)’s application to PFI’s marks does just that—by cancelling the registrations for the Redskins Marks, the TTAB Order dampens PFI’s side of the healthy public discourse over the Washington Redskins’ name. See, e.g., Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 256-57 (1974) (statute that “exact[ed] a penalty” that would “dampen[] the
6 Even regulations that do not impose direct financial burdens raise First Amendment concerns. See, e.g., PSINet, Inc. v. Chapman, 362 F.3d 227, 236-37 (4th Cir. 2004) (restriction on online access to indecent material an unconstitutional burden on adult speech, even though it did not prevent speech).
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vigor and limit[] the variety of public debate” was unconstitutional). Moreover, by moving the debate from the public forum to the PTO’s closed offices, Defendants’ in effect sought to drive PFI to abandon its use of the “Redskins” name entirely.7
In addition, Section 2(a) chills the speech of other brand owners. Faced with the possibility of being denied a federal registration—or worse, cancellation after years of investment-backed brand development—new brand owners are more likely to be chilled by avoiding brand names that may be arguably controversial, or that otherwise contribute to the public discourse, for fear of later being deemed “disparaging.” Similarly, trademark owners whose registrations are cancelled may choose to remove their cancelled trademarks from the marketplace entirely, rather than continue devoting resources to a mark that cannot receive the Lanham Act’s crucial federal protections. The little relevant legislative history on Section 2(a) demonstrates that this was actually the intended effect of Section 2(a). See infra Part I.B.1.
Because Section 2(a) burdens and chills the use of the Redskins Marks and other trademarks—even though it does not directly ban their use—it raises First Amendment concerns, and must be scrutinized to determine whether such restrictions are justified. See, e.g., Simon & Schuster, 502 U.S. at 115 (law that burdened criminals’ speech by denying them profits from authoring books about their crimes implicated the First Amendment and was subject to scrutiny).
7 See, e.g., A8546 (Ms. Blackhorse’s Responses to PFI’s First Set of Interrogatories) (objecting to “[t]he team’s name and symbols,” contending she will feel disrespected as long as the team “uses the term ‘redskins,’” and concluding that “the trademarks owned by [PFI] must be eliminated”).
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3. Section 2(a) Conditions Access To Federal Benefits On Restrictions Of PFI’s And Other Brand Owners’ Speech
Even if Section 2(a) did not so heavily burden and discourage disfavored marks, it nonetheless impinges upon PFI’s and other trademark owners’ free speech rights by conditioning access to the federal registration program on whether a mark “may disparage.”
The Supreme Court has unequivocally stated that the Government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.” Perry v. Sindermann, 408 U.S. 593, 597 (1972); see also Fields v. Prater, 566 F.3d 381, 391 (4th Cir. 2009) (“there are some reasons upon which the government may not rely” when denying benefits) (citation and quotation marks omitted). A statute that conditions benefits on the curtailment of speech impinges on First Amendment rights when the benefits themselves: (1) are “designed to facilitate private speech” rather than to “subsidize transmittal of a message [the government] favors,” Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 542 (2001) (quoting Rosenberger, 515 U.S. at 834); or (2) “regulate speech outside the contours of the [benefits] program itself,” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2328 (2013) (emphasis added).
Accordingly, in Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988), the Ninth Circuit held that regulations that conditioned foreign filmmakers’ ability to obtain benefits under the Beirut Agreement—including, inter alia, exemption from customs duties and import licenses for their films—interfered with the filmmakers’ First Amendment rights. The broad purpose of the Agreement was to “facilitate the international circulation” of “educational, scientific and cultural” audio-visual materials. Id. at 504. The regulations at issue included a requirement that the works not “appear to have as their purpose or effect to attack or discredit economic, religious, or political views or practices.” Id. at 505. The Ninth Circuit ruled that the regulations disadvantaged some
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materials on the basis of their content, thereby “forc[ing] film makers to choose between exercising their right to free speech and foregoing benefits under the Agreement, or curtailing their speech and obtaining the benefits.” Id. at 511. After finding that the restrictions “infringe[d] the First Amendment,” the Ninth Circuit applied First Amendment scrutiny. Id.8
The same outcome is warranted here. Congress provided the benefits of federal registration to facilitate the private use and enforcement of trademarks, “secur[ing] to the owner of the mark the goodwill of his business.” Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 198 (1985). Section 2(a) conditions access to these important benefits on brand owners’ curtailing of their right to use an identifier that “may disparage,” thereby requiring owners to choose between the benefits of federal registration and their right to use their preferred mark—here, PFI has been denied these benefits based on its choice to use its long-held “Washington Redskins” team name. No more is needed to conclude that Section 2(a) restricts First Amendment rights, both facially and as applied, so the Court must proceed to scrutinize the conditions to determine whether such restrictions comply with the First Amendment. See Bullfrog Films, 847 F.2d at 512 (applying First Amendment scrutiny after finding benefits were conditioned on speech restriction); Dep’t of Texas, Veterans of Foreign
8 See also, e.g., Autor v. Pritzker, 740 F.3d 176, 182-83 (D.C. Cir. 2014) (the unconstitutional conditions doctrine has been extended “to a broad range of non-monetary benefits” and no circuit “has found a benefit too insignificant”); Cuffley, 208 F.3d at 708 (state could not condition participation in adopt-a-highway program on applicants not discriminating on the basis of race, religion, color, national origin, or disability); Columbia Union Coll. v. Clarke, 159 F.3d 151, 156 (4th Cir. 1998) (requirement that grants given to private colleges not be used for “sectarian purposes” triggered First Amendment scrutiny); cf. Hannegan v. Esquire, Inc., 327 U.S. 146, 15759 (1946) (denying second-class mailing privileges to a magazine because it is indecent or morally improper violates the First Amendment).
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Wars of U.S. v. Texas Lottery Comm’n, 760 F.3d 415, 438 (5th Cir. 2013) (First Amendment
scrutiny applied where statute conditioned benefits on restricting exercise of free speech).9
Notwithstanding that Section 2(a) denies benefits on this basis and places burdens on marks
deemed “disparaging,” the Government has previously relied on In re McGinley, 660 F.2d 481
(C.C.P.A. 1981), and its progeny10 for the proposition that no First Amendment concerns can be
triggered by Section 2(a) because “the PTO’s refusal to register [a speaker’s] mark does not affect
his right to use it.” Id. at 484. McGinley, which is not binding on this Court, is wrong on the
merits—as detailed above, Section 2(a) burdens certain disfavored marks and denies federal benefits
to those marks, which indisputably “affect[s]” their use. In any event, McGinley was decided almost
thirty-five years ago.11 First Amendment law has changed significantly, and the Supreme Court has
9 Some courts have analyzed conditions on the receipt of government benefits as restrictions on access to a government forum. See, e.g., Rosenberger, 515 U.S. at 829-30 (student activity funding was a government forum in a “metaphysical” sense); Sons of Confederate Veterans, 288 F.3d at 623 (analyzing specialty license plate program as a government forum). But regardless of whether a program is considered a government forum, content- and viewpoint-based conditions on access must be reviewed for consistency with the First Amendment, and viewpoint discrimination—like that imposed by Section 2(a)—is always impermissible. See Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062, 1067 (4th Cir. 2006) (“CEF S.C.”) (“The ban on viewpoint discrimination is a constant.”). In any event, if the federal trademark program were considered a government forum for private speech, Section 2(a)’s restrictions on speech would be impermissible for the additional reason that its restrictions are not even reasonable in light of the purposes served by the federal registration program. See, e.g., Brown v. Cal. Dep’t of Transp., 321 F.3d 1217, 122223 (9th Cir. 2003) (exemption from permit requirements for American flags hung over highway overpasses was not reasonably related to the purpose of the permit program). 10 While subsequent decisions followed McGinley, they adopted McGinley’s reasoning based on precedent, without analyzing the First Amendment issues presented by Section 2(a). See, e.g., In re Boulevard Entm’t, Inc., 334 F.3d 1336, 1343 (Fed. Cir. 2003) (citing McGinley without analysis); In re Mavety Media Grp. Ltd., 33 F.3d 1367, 1374 (Fed. Cir. 1994) (“our precedent forecloses … challenges to [Section 2(a)] as unconstitutional on its face or as applied”) (citing McGinley). 11 Amendments since 1981 have resulted in the Lanham Act imposing even greater burdens on unregistered marks. For example, the Trademark Law Revision Act of 1989 allows a party with a bona fide intent to use a mark in commerce to file an “intent-to-use” application and gain priority through constructive use. See 15 U.S.C. § 1057(c); (Handelman Rep. at 7-8).
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since confirmed that the “‘Government’s content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.’” Sorrell, 131 S. Ct. at 2664 (quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000)) (emphases added). Indeed, “the amount of burden on speech needed to trigger First Amendment scrutiny as a threshold matter is minimal.” Am. Legion Post 7 of Durham, N.C. v. City of Durham, 239 F.3d 601, 607 (4th Cir. 2001). Thus, McGinley is certainly not persuasive now (to the extent it ever was).
B. Section 2(a) Is Unconstitutional On Its Face And As Applied to PFI Because Section 2(a) imposes restrictions on protected speech, it must be scrutinized for compatibility with the First Amendment. Commercial speech regulations are traditionally subjected to an “intermediate” level of scrutiny. See, e.g., Sorrell, 131 S. Ct. at 2667-68 (describing commercial speech scrutiny).12 Under that standard, the regulation of lawful, non-misleading commercial speech is unconstitutional unless the Government demonstrates that “the statute directly advances a substantial government interest and that the measure is drawn to achieve that interest.” Id. at 2668 (citing, inter alia, Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980)). The Government cannot meet that burden here, either facially or with respect to the TTAB’s application of Section 2(a) to PFI.
1. The Government Has No Substantial Interest In Enforcing Section 2(a) Section 2(a) fails intermediate scrutiny at the outset because the Government has no substantial government interest generally in withholding federal registration from marks that “may disparage,” nor specifically in cancelling the registrations for the Redskins Marks.
12 The Supreme Court recently suggested that content-based regulations (like Section 2(a)) must satisfy a more “heightened scrutiny,” even when the regulation affects only commercial speech. See Sorrell, 131 S. Ct. at 2664; see also Educ. Media Co., 731 F.3d at 297-98 (discussing Sorrell). The Court need not reach this issue because Section 2(a) fails even the intermediate scrutiny traditionally afforded to regulations on commercial speech. See Sorrell, 131 S. Ct. at 2667 (so concluding).
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The cancellation of PFI’s registrations was specifically brought about by Defendants’ desire to deter the use of the Redskins Marks because PFI’s use of the Redskins’ name “offends” them. (A4 ¶1; see also supra n.7) Congress in fact enacted Section 2(a) for the purpose of suppressing the use of disparaging marks to shield the public from offensiveness. These “policy objectives” are clear from the face of the statute. See PTO Tam Br. at 33-4 n.4. The sparse legislative history addressing Section 2(a) confirms that the provision’s purpose was to “take care of” the possibility of brand owners “abus[ing]” persons with their marks by not “permit[ing]” this type of mark. Hearings on H.R. 4744 Before the Subcomm. on Trademarks of the H. Comm. on Patents, 76th Cong., 1st Sess. 18-21 (1939) (statement of Rep. Thomas E. Robertson) (Rep. Rogers) (available at Anten Decl. ¶12 & Ex. 52 at 19).
Deterrence or suppression of purportedly offensive speech is never a valid substantial government interest. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 (1983) (offensiveness is “classically not a justification validating the suppression of expression”) (quoting Carey v. Population Servs. Int’l, 431 U.S. 678, 701 (1977)); see also Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988) (“[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it.”) (quoting FCC v. Pacifica Found., 438 U.S. 726, 745 (1978)).13 “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” United States v. Eichman, 496 U.S. 310, 319 (1990). The Government thus cannot rely on its interest in discouraging use of, or preventing offense caused by, the Redskins Marks or any other
13 See also, e.g., Virginia State Bd., 425 U.S. at 765 (commercial speech cannot be denied First Amendment protection just because the speech might be “tasteless and excessive”); Rodriguez v. Maricopa Cty. Comm. Coll. Dist., 605 F.3d 703, 708 (9th Cir. 2010) (“[I]t is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive.”).
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trademarks to justify restricting speech. See Hornell Brewing Co., 819 F. Supp. at 1234-35 (purpose of “protecting Native Americans from the offensive exploitation of a former Sioux leader’s name” through product name that was a “cultural insult to the Indian people” was not a substantial interest that justified speech restriction).
2. There Is No “Fit” Between The Government’s Interests And Section 2(a)
Even if the Government’s supposed interest were legitimate and substantial, there is no “‘fit’ between the legislature’s ends and the means chosen to accomplish those ends.” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989). Rather, Section 2(a) “provides only ineffective or remote support for the [G]overnment’s purpose[s].” Central Hudson, 447 U.S. at 564. The Government certainly is unable to meet its burden of showing that “the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield v. Fane, 507 U.S. 761, 771 (1993) (emphasis added). It cannot do so here.
As an initial matter, Section 2(a) does not even directly diminish the use of “disparaging” trademarks. Although the cancellation or denial of registration chills the use of certain marks, see supra Part I.A.2, it does not directly remove “disparaging” speech from public discourse because brand owners may try to use their unregistered marks. And where, as here, the unregistered trademarks are popular, the lack of registration is in fact likely to increase the overall use of the marks by encouraging counterfeit, unlicensed, and otherwise infringing or diluting uses.
Moreover, even if the Government were to succeed in reducing use of purportedly “disparaging” marks through application of Section 2(a), this would have only a de minimis impact on the stated purpose of discouraging or shielding the public from speech that is deemed “offensive.” Forms of speech patently more offensive than any trademark use abound in the marketplace of ideas. See, e.g., Texas v. Johnson, 491 U.S. 397, 405-06 (1989) (burning of the American flag protected by
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First Amendment); Snyder, 580 F.3d at 222-23 (display of signs such as “Thank God for Dead Soldiers” protected by Constitution); Cuffley, 208 F.3d at 708 (“message of racial superiority and segregation” protected by Constitution). The removal through Section 2(a) “of a few grains of offensive sand from a beach of vulgarity” simply does not directly and materially advance the Government’s interest. Bad Frog Brewery, 134 F.3d at 100; see also Adolph Coors Co. v. Bentsen, 2 F.3d 355, 358-59 (10th Cir. 1993) (regulation restricting alcohol content on labels did not directly advance state interest in preventing “strength wars” between alcohol producers).
Nor can the Government show that Section 2(a) is part of a larger “substantial effort” to reduce disparagement. Bad Frog Brewery, 134 F.3d at 100. To the contrary, the law generally protects purportedly disparaging speech, see supra Part I.B.1 & n.13, and the federal government grants intellectual property protection to even obscene speech that is not protected by the First Amendment. See, e.g., Jartech, Inc. v. Clancy, 666 F.2d 403, 406-08 (9th Cir. 1982) (obscene works of authorship protected by federal copyright law). At bottom, Section 2(a) is only a minimal, “isolated response” to a larger perceived problem, and any limited effect it has does not justify its limitations on commercial speech. Bad Frog Brewery, 134 F.3d at 100.
* * * It is not surprising that Congress has no legitimate and tailored justification for Section 2(a)’s restrictions on trademarks, given that the statute was enacted nearly thirty years before the Supreme Court first recognized that the First Amendment protects commercial speech at all. See Bolger, 463 U.S. at 64; Sambo’s, 663 F.3d at 692-93; Act of July 5, 1946, Pub. L. No. 79-489, § 2(a), 60 Stat. 427, 428. But today, commercial speech “remains protected even when it may ‘stir people to action,’ ‘move them to tears,’ or ‘inflict great pain,’” Sorrell, 131 S. Ct. at 2670 (quoting Snyder,
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131 S. Ct. at 1220). Section 2(a)’s restrictions on commercial speech do not stand up under First Amendment scrutiny.
Because there is no constitutionally sound interest furthered by the cancellation of the Redskins Marks or any application of the statute, Section 2(a) violates the First Amendment both on its face and as applied to PFI. II. SECTION 2(A) IS UNCONSTITUTIONALLY VAGUE
The Due Process clause of the Fifth Amendment shields the public from enforcement of a statute “if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Where, as here, a statute reaches speech protected by the First Amendment, even “greater specificity” is demanded. Smith v. Goguen, 415 U.S. 566, 573 (1974). Due process thus requires that Section 2(a) be declared void for vagueness because it “leaves the public uncertain as to the conduct it prohibits” and “authorizes … arbitrary and discriminatory enforcement.” United States v. Lanning, 723 F.3d 476, 482 (4th Cir. 2013) (citation and quotation marks omitted). Further, Section 2(a) is impermissibly vague as applied to PFI.
A. Section 2(a) Does Not Provide Notice As To Which Marks “May Disparage” Section 2(a) is void for vagueness because it “fail[s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits.” Norfolk 302, LLC v. Vassar, 524 F. Supp. 2d 728, 739 (E.D. Va. 2007) (quoting City of Chi. v. Morales, 527 U.S. 41, 56 (1999)). First, the statute itself provides no guidance as to which trademarks will be deemed disparaging. Congress did not provide a definition of “may disparage,” and the ordinary meaning of those words is necessarily subjective. “Disparage” means “to describe (someone or something) as unimportant, weak, bad, etc.,” or “to lower in rank or reputation: degrade,” or “to depreciate by
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indirect means (as invidious comparison): speak slightingly about.” (Anten Decl. ¶13 & Ex. 53 (Merriam-Webster)).14 Whether or not something is “unimportant” or “weak” or “lower,” and hence, “disparaging,” necessarily will depend on who is asked and when; thus, brand owners cannot reasonably predict whether a particular trademark examiner will deem a mark “disparaging”—much less whether the mark “may disparage.” Cf. Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1184 (6th Cir. 1995) (“[D]ifferent people find different things offensive.”). As the Assistant Commissioner of Patents during the Congressional hearings on the Lanham Act testified, “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.” Hearings on H.R. 4744 Before the Subcomm. on Trademarks of the H. Comm. on Patents, 76th Cong., 1st Sess. 21 (1939) (statement of Leslie Frazer) (emphasis added) (available at Anten Decl. ¶12 & Ex. 52 at 21). Thus, the text of Section 2(a), like other restrictions on disparaging and offensive speech, leaves people of ordinary intelligence guessing at its meaning and unable to select marks they can be confident will be (and remain) registered. See, e.g., Dambrot, 55 F.3d at 1183-84 (school policy against, inter alia, “demeaning or slurring individuals” unconstitutionally vague); Bullfrog Films, 847 F.2d at 513-14 (statute denying benefits to materials that “appear to have as their purpose or effect to attack or discredit economic, religious, or political views or practices” unconstitutionally vague).
Second, the PTO’s interpretation of Section 2(a) does not provide any more clarity than the statute itself. In 1999, relying on dictionary definitions of the word “disparage,” the TTAB stated for the first time that a mark that “may disparage” is one which “may dishonor by comparison with what is inferior, slight, deprecate, degrade, or affect or injure by unjust comparison,” measured by “the
14 Dictionaries contemporaneous with the passage of the Lanham Act in 1946 provided materially identical definitions of “disparage.” See Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d 1705, 1738 & n.99 (T.T.A.B. 1999), rev’d, Harjo, 284 F. Supp. 2d 96 (D.D.C. 2003).
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views of a substantial composite” of the referenced group. Harjo, 50 U.S.P.Q.2d at 1738-39. This
standard, however, is no less subjective or more specific than the circular dictionary definition for a mark that “may disparage.”15
Because neither the statutory language nor the PTO’s interpretations provide any guidance to
brand owners as to whether their marks “may disparage,” Section 2(a) is void for vagueness on its
face. See, e.g., Bullfrog Films, 847 F.2d at 513-14 (regulations facially vague where “[o]ne might
perhaps make some educated guesses as to the meaning of the[] regulations, but one could never be
confident that the [Government] would agree”); Norfolk 302, 524 F. Supp. 2d at 740 (enjoining
enforcement of statute where both statute and judicial gloss left individuals guessing at its meaning).
B. Section 2(a) Authorizes Arbitrary And Discriminatory Enforcement Section 2(a) is also void for vagueness because its inherent subjectivity “authorize[s] and
even encourage[s] arbitrary and discriminatory enforcement.” Norfolk 302, 524 F. Supp. 2d at 739
(quoting Morales, 527 U.S. at 56). Trademark examiners have no objective standards to use in
applying Section 2(a). The statute itself, and the TTAB’s interpretations, do not provide any more
guidance to trademark examiners than they do to the general public. Nor has the PTO promulgated
any additional guidelines to assist examiners; to the contrary, the Trademark Manual of Examining
Procedure (“TMEP”) contains less guidance than the TTAB’s decisions because it provides no
15 The judicially-created “substantial composite” requirement adds an additional layer of vagueness. The PTO has never defined that term—except to say that it is “not necessarily a majority,” In re Heeb Media, LLC, 89 U.S.P.Q.2d 1071, 2008 WL 5065114, at *5 (T.T.A.B. 2008)—and that the term has no inherent meaning. See, e.g., N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 283-84 (4th Cir. 2008) (phrase “significant number of registered voters” was unconstitutionally vague); Nat’l Abortion Fed’n v. Metro. Atlanta Rapid Transit Auth., 112 F. Supp. 2d 1320, 1327-28 (N.D. Ga. 2000) (phrase “substantial number of people” was unconstitutionally vague). In this case, for example, the TTAB Order states that 30% of the Native American population “without doubt” constitutes a “substantial composite” (A14047), while the district court in Harjo held that, “in the context of this case,” 36.6% of the Native American population was not a “substantial composite,” Harjo, 284 F. Supp. 2d at 133 n.32.
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definition of “may disparage.” See TMEP § 1203.03(b)(i)-(ii) (available at Anten Decl. ¶14 & Ex. 54 at 19-21).16 Indeed, even the TTAB has noted that “the guidelines for determining whether a

mark is scandalous or disparaging are somewhat vague and the determination of whether a mark is

scandalous or disparaging is necessarily a highly subjective one.” In re In Over Our Heads Inc., 16

U.S.P.Q.2d 1653, 1654 (T.T.A.B. 1990) (emphasis added, citation and quotation marks omitted).

Section 2(a) accordingly delegates trademark examiners unbridled discretion to deny

applications for registrations on an “ad hoc and subjective basis, with the attendant dangers of

arbitrary and discriminatory application.” Grayned, 408 U.S. at 108-09. In practice, Section 2(a)

has yielded arbitrary and inconsistent results. For example:

REGISTRATION GRANTED HEEB (Reg. No. 2,858,011) (June 29, 2004)
DYKE NIGHT (Reg. No. 4,146,588) (May 22, 2012) F·A·G FABULOUS AND GAY (Reg. No. 2,997,761) (Sept. 20, 2005) DAGO SWAGG (Reg. No. 4,347,624) (June 4, 2013) WILD INJUN (Reg. No. 1,673,489) (Jan. 28, 1992) SQUAW (Reg. No. 3,322,061) (Oct. 30, 2007) REDSKINS Marks (registered 1967 – 1990) (Dkt. 51 ¶8(a)-(f))

REGISTRATION DENIED AS DISPARAGING HEEB, In re Heeb Media, LLC, 89 U.S.P.Q.2d 1071, 2008 WL 5065114, at *1 (T.T.A.B. 2008) 2 DYKE MINIMUM (Serial No. 77/219,520) (Office Action Oct. 11, 2007) MARRIAGE IS FOR FAGS (Serial No. 77/477,549) (Office Action Nov. 19, 2008) DAGO MARY’S (Serial No. 78/954,137) (Office Action Jan. 17, 2007) URBAN INJUN (Serial No. 77/186,637) (Office Action Nov. 19, 2007) SQUAW, In re Squaw Valley Dev. Co., 80 U.S.P.Q.2d 1264, 1279 (T.T.A.B. 2006) REDSKINS Marks (A13977-14153) (scheduled for cancellation June 18, 2014)17

16 Instead, it provides circular instructions, requiring that an examining attorney “determine[] whether a proposed mark is disparaging” by looking to “whether that meaning may be disparaging to a substantial composite of the referenced group.” TMEP § 1203.03(b)(i) (available at Anten Decl. ¶14 & Ex. 54 at 19; see also supra n.15. 17 Further adding to the confusion created by Section 2(a), the PTO often analyzes marks that reference certain people or groups as “scandalous” or “immoral” marks, rather than “disparaging” marks. See, e.g., Serial No. 86/089,512 (Office Action Jan. 30, 2014) (refusing registration of FAG: FOREVER A GENIUS because the mark “consists of or includes immoral or scandalous matter”). Refusals premised on scandalousness are just as inconsistent.
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This discretion in the hands of trademark examiners, and resultant arbitrary decision-making, is particularly problematic because Section 2(a) regulates speech protected by the First Amendment. See supra Part I.A. Trademark examiners may be “‘decid[ing] who may speak and who may not’” based on their personal beliefs and opinions about the content of the marks or the viewpoints of the applicants, or other “‘illegitimate criteria.’” CEF S.C., 470 F.3d at 1068 (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 758-59, 763-64 (1988)). The Court “cannot presume that [trademark examiners] will act in good faith and respect [an applicant’s] First Amendment rights.” United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 359 (6th Cir. 2006) (“Local 1099”). Rather, because the Government has imposed no limits on the PTO’s discretion through “textual incorporation, binding judicial or administrative construction, or well-established practice,” Section 2(a) is facially unconstitutional. City of Lakewood, 486 U.S. at 770; see also, e.g., Norfolk 302, 524 F. Supp. 2d at 740 (enjoining enforcement of statute that was not tied to any “explicit standard” for enforcement).
C. Section 2(a) Is Impermissibly Vague As Applied To PFI Regardless of whether Section 2(a) in its entirety is void for vagueness, it is at least impermissibly vague as applied to PFI. The Redskins Marks were registered decades before the TTAB provided any gloss on the text of Section 2(a); thus PFI had no way to know that its marks would be adjudicated as disparaging years after the fact based on the later-professed views of a “substantial composite” of Native Americans. With only the vague text of Section 2(a) to guide it, PFI could not have reasonably understood that the Redskins Marks would fall within the purview of Section 2(a)—especially given that various Native American groups were using the word “redskins” to describe their own athletic teams in 1967-1990 (Anten Decl. ¶¶5(a)-(mm) & Exs. 2-40), and that no oppositions or cancellations were filed until twenty-five years after the first registration (Anten Decl. ¶10 (RFAs 53 & 54) . Cf. Lytle v. Doyle, 326 F.3d 463, 469 (4th Cir. 2003) (loitering statute
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unconstitutionally vague as applied to protesters, who would not reasonably understand their protest to fall within the common definition of loitering).
After registering and renewing each of the Redskins Marks on multiple occasions (Dkt. 51 ¶8(a)-(f)), the PTO has now reversed course and decided to enforce the provision against PFI only after Native American activists launched a campaign against the “Redskins” name. Because the PTO lacks objective standards for determining whether the Redskins Marks “may [have] disparage[d]” Native Americans, the TTAB may have reached its conclusion on bases that infringe PFI’s First Amendment rights, including current political opinions about the Washington Redskins’ team name and PFI’s viewpoint. See supra Part II.B. In the absence of objective standards for evaluating disparagement fairly, evenly, and consistently, the Court cannot “presume that the [TTAB] act[ed] in good faith” and that the political climate ‘had no effect on the outcome of the proceedings below. Local 1099, 163 F.3d at 358; cf. Lanning, 723 F.3d at 483 (fact that disorderly conduct statute was enforced as part of a sting operation targeting gay men highlighted that it could be applied in a discriminatory and arbitrary fashion). This post hoc, discriminatory and political determination—on the basis of shifting criteria that could not have been known to PFI in advance— is precisely what the prohibition on vagueness and unbridled discretion is intended to prevent. See, e.g., City of Lakewood, 486 U.S. at 758-59 (“Standards provide the guideposts that check the licensor. . . Without these guideposts, post hoc rationalizations by the licensing official and the use of shifting or illegitimate criteria are far too easy.”). III. THE TTAB’S ORDER UNCONSTITUTIONALLY TAKES PFI’S PROPERTY
The TTAB’ Order contravenes the Takings Clause’s guarantee that “private property [shall not] be taken for public use, without just compensation.” U.S. CONST. amend. V.
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A. The Redskins Marks Are Property Protected By The Takings Clause The Redskins Marks constitute “property” for Takings Clause purposes, and are therefore subject to the Fifth Amendment’s constitutional protections. The Supreme Court has long recognized “[t]hat intangible property rights protected by state law are deserving of the protection of the Taking Clause.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984). Thus, trade secrets are constitutionally protected property under the Takings Clause in accordance with the “basic axiom” that “property interests … are created … by existing rules or understandings that stem from an independent source such as state law.” Id. at 1001 (citations and quotation marks omitted). Similarly, trademarks are property for Takings Clause purposes because “trade-mark[s as] property” had “been long recognized by the common law and the chancery courts of England and of this country, and by the statutes of some of the States … [and] existed long anterior to the [first federal trademark legislation in 1870].” In re Trade-Mark Cases, 100 U.S. 82, 92 (1879); 1 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS & UNFAIR COMPETITION (“MCCARTHY”) § 5:2 (4th ed.) (discussing the long common law history of protecting trademarks as a property interest).18 Trademarks are also “property” under the Takings Clause because they bear “many of the characteristics of more tangible forms of property.” Monsanto, 467 U.S. at 1002. Like tangible property, trademarks can be assigned, bought, sold, and licensed. See 15 U.S.C. § 1060 (providing for the assignment of trademarks); Monsanto, 467 U.S. at 1002 (tangible property can be assigned) .
18 In this way, trademarks are distinguishable from patents which, as pure “creature[s] of federal law,” are not protected property under the Takings Clause. Zoltek Corp. v. United States, 442 F.3d 1345, 1352 (Fed. Cir. 2006), vacated on other grounds on reh’g en banc, 672 F.3d 1309 (Fed. Cir. 2012). Unlike patents, “registration does not create the underlying right in a trademark. That right … accrue[s] from the use of a particular name or symbol … [and is] essentially a common law property right.” Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366, 372 (1st Cir. 1980).
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Trademarks also bear “[t]he hallmark of a protected property interest [that] is the right to exclude others.” Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 673 (1999); see also Monsanto, 467 U.S. at 1011 (“The right to exclude others is generally ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’”) (citation omitted).
B. Cancellation of the Redskins Marks Effects A Regulatory Taking Cancellation of the Redskins Marks significantly impedes a core characteristic that makes trademarks economically viable—the right to exclude—thereby effecting a regulatory “taking” of PFI’s property. Whether a regulation “goes too far,” Penn. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922), and thereby effects a taking, is an “ad hoc, factual inquir[y],” Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). Three factors are considered: (1) “the character of the governmental action,”19 (2) its “economic impact,” and (3) “the extent to which [it] interferes with distinct investment-backed expectations.” Penn Cent., 438 U.S. at 124. Where the regulation’s “effects are so complete as to deprive the owner of all or most of his interest in the subject matter, [this] amount[s] to a taking.” Monsanto, 467 U.S. at 1005 (citation and quotation marks omitted). As to economic impact, cancellation of the Redskins Marks has the requisite “impair[ment of] the value or use of [PFI’s] property.” PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 83 (1980). PFI’s marks are extraordinarily valuable. In 2006, for example, Forbes ranked the Redskins as the NFL’s most valuable franchise at $1.423 billion. (A314 at ¶13). And as of August 2014—the
19 Here, the character of government action implicated is regulatory by virtue of Section 2(a). Alternatively, the TTAB’s order scheduling the cancellation of the Redskins Marks is a judicial taking by declaring “that [PFI’s] once … established right of private property no longer exists.” Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Prot., 560 U.S. 702, 715 (2010).
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most recent offered by Forbes—the team was valued at $2.4 billion, with its brand management
valued at $214 million. (Anten Decl. ¶11 & Ex. 51).
A trademark’s value is based on exclusive use of the mark to distinguish goods or services in
commerce. Cancellation of the Redskins Marks not only divests PFI of statutory protections accompanying federal registration that enforce exclusivity (see Handelman Rep. at 16-17),20 but also
substantially interferes with PFI’s ability to protect the exclusivity of its marks under state statutes
and common law. This is because federal cancellation not only deems PFI’s marks unregistered under the Lanham Act but potentially unregistrable under the Model State Trademark Bill.21 In such
circumstances, PFI’s common law use of its trademark is also impaired because equitable doctrines
may interfere with the protection of PFI’s exclusivity in its marks. Consequently, it is “irrelevant to
the determination of … economic impact” that PFI’s marks may “retain [some post-cancellation]
usefulness” at common law because “[t]he economic value of that property right lies in the
competitive advantage over others that [PFI] enjoys by virtue of its exclusive [use of] the
[trademarks].” Monsanto, 467 U.S. at 1012. Interference with PFI’s ability to fully protect the
exclusivity of its marks by cancellation of its registrations interferes with the value of PFI’s trademark rights, thereby constituting an unconstitutional taking.22 See Mahon, 260 U.S. at 414-15
20 See supra SUF ¶¶9-12; 3 MCCARTHY § 19:3 n.3(“[W]hile registration does not create the common-law ‘trademark,’ registration does create those rights to exclude spelled out in the Lanham Act.”). 21 The Model State Trademark Bill, which has been adopted in 49 states, provides that marks containing “matter which may disparage … persons … or bring them into contempt, or disrepute” are unregistrable. See 3 MCCARTHY § 22:8; see also id. § 22:5 & n.1 (“As of 1992, 46 states have used the Model Bill as the basis for trademark registration legislation.”). Since 1992, every state except Wisconsin has adopted this provision. See W. Va. Code, § 47-2-2(2); Haw. Rev. Stat. § 48221(2); N.M. Stat. Ann. § 57-3B-4(2). 22 To be sure, if the Redskins Marks ultimately are cancelled, PFI will retain its common law rights and (to the extent that they remain unchallenged) state law rights, and may enforce those rights against third parties. However, for the purposes of a Takings Clause analysis, it cannot be disputed
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(substantially impairing right to mine coal constituted a regulatory taking of coal); see also In re Deister Concentrator Co., 289 F.2d 496, 501 n.5 (C.C.P.A. 1961) (“If the law will not protect one’s claim of right to exclude others from using an alleged trademark, then he does not own a ‘trademark,’ for that which all are free to use cannot be a trademark.”).
Cancellation would also substantially interfere with reasonable investment-backed expectations. By the time Section 2(a) became operative in July 1947,23 the Redskins Marks had already been used for 14 years.24 (Dkt. 1 ¶82; Dkt. 41 ¶82). Another two decades of use preceded PFI’s first federal registration in 1967, only further entrenching its investment-backed expectations. (Id.). Each unchallenged registration, followed by unchallenged renewals, occurring over the course of a further two decades each cemented prior significant investments into the marks and expectations for the Redskins Marks’ continued use through corporate sponsorships, merchandising, and marketing and promotion. (See supra SUF ¶¶4-6; Dkt. 51 ¶8(a)-(f)).
C. The Taking of PFI’s Property Was For A Public Use But Exceeds Constitutional Limitations
For a taking to be for a public use, it must be “within the authority of Congress” by not exceeding “specific constitutional limitations.” Berman v. Parker, 348 U.S. 26, 32-33 (1954). Because the legislative purpose in cancelling the Redskins Marks under Section 2(a) violates the First Amendment, see supra Part I, the taking is invalid and the registrations must be restored. But even if the Court disagrees with PFI’s First Amendment arguments, the purposes of Section 2(a) are
that deprivation of federal registrations will: (1) require PFI to expend greater resources to enforce such protections; (2) place PFI at a competitive disadvantage; and (3) possibly result in courts ultimately (albeit improperly) refusing to enforce PFI’s state or common law rights. 23 Act of July 5, 1946, Pub. L. No. 79-489, 60 Stat. 427 (1946) (effective July 6, 1947). 24 Before the Lanham Act, statutes did not regulate purportedly “disparaging, contemptuous, or offensive” marks. Bartholomew Diggins, The Lanham Trade-Mark Act, 35 GEO. L. J. 147, 154 (1947) (available at Anten Decl. ¶15 & Ex. 55).
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“rationally related to a conceivable public purpose” and therefore constitute a “public use” for which PFI has been unconstitutionally denied just compensation. Kelo v. City of New London, Conn., 545 U.S. 469, 490 (2005) (Kennedy, J. concurring). Section 2(a)’s professed purpose is to protect from offense—this is rationally achieved by denying allegedly disparaging marks a federal registration, which thereby purportedly discourages use of such marks. See id. at 480 (“Without exception, the Court has defined [‘public use’] broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power.”). The taking of the Redskins Marks therefore constitutes a “public use.”
D. PFI Was Unconstitutionally Denied Just Compensation The Takings Clause mandates receipt of “just compensation.” In contravention of the Takings Clause, the Lanham Act does not provide, and so PFI has not and will not receive, any compensation—let alone “just” compensation—for cancellation of the Redskins Marks. IV. PFI HAS BEEN DEPRIVED OF ITS PROPERTY WITHOUT DUE PROCESS The Fifth Amendment’s Due Process Clause guarantees that “[n]o person shall … be deprived of life, liberty, or property, without due process of law.” U.S. CONST. amend. V. In the context of TTAB proceedings, due process requires notice, “a complete hearing … in accordance with the Rules of Practice in Trademark Cases,” and “a full opportunity to argue … at the hearing before the Board.” Stoller v. Ponce, 113 F. App’x 403, 406 (Fed. Cir. 2004); 15 U.S.C. § 1067(a) (providing for “notice to all parties” and a TTAB determination and decision of “the respective rights of registration” of the parties); 37 C.F.R. § 2.129(a) (providing for oral argument before the TTAB if desired by a party). PFI was denied due process before the TTAB based on the inordinate passage of time between Redskins Marks’ registrations and the instant challenge, which interfered with PFI’s right to a hearing at a meaningful time.
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A. The Redskins Marks Are “Property” Under The Due Process Clause
The Redskins Marks are “property” for Due Process Clause purposes. “[C]onstitutionally
cognizable property interests” under the Due Process Clause include “trademarks, which are the
‘property’ of the owner because he can exclude others from using them.” Coll. Sav. Bank, 527 U.S.
at 673 (under Fourteenth Amendment Due Process Clause); see also id. at 693 (Stevens, J.,
dissenting) (“good will” is “property” for the Due Process Clause). Other courts have confirmed that
trademarks are “protected by the Due Process Clause of the Fifth Amendment to the Constitution.” Rex, Inc. v. Kusha, Inc., 2001 WL 209899, at *1 (W.D.N.Y. Feb. 23, 2001).25
B. PFI Was Denied Due Process By Delay Causing Substantial Prejudice
The inordinate delay of almost fifty years between PFI’s first registration and these
cancellation proceedings violates the Due Process Clause’s guarantee of a hearing at a “meaningful
time and in a meaningful manner.” Goldberg v. Kelly, 397 U.S. 254, 267 (1970). Here, PFI has
been substantially prejudiced by being forced to defend itself against the cancellation of its valuable
property rights where the delay has resulted in, inter alia, lost records, the death of witnesses, and
faded memories. At base, it is unfair that PFI has been placed in the position of having to defend its
25 While this precedent alone establishes that PFI has a property interest in the Redskins Marks, this conclusion is bolstered by PFI’s “legitimate claim of entitlement” to the marks. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). This inquiry looks to whether the claimed property is defined by “existing rules or understandings that stem from an independent source [from the Constitution] such as state law” which “secure certain benefits and support claims of entitlement to those benefits.” Id. Here, PFI’s claim of entitlement arises from, inter alia: (1) the longstanding recognition of trademarks as property under state common law, see supra Part III.A; (2) the Lanham Act’s creation of an entitlement to federal registration by PFI’s continual use of the marks, 15 U.S.C. § 1051(a)(1) (“owner of a trademark used in commerce may request registration”); and (3) the Lanham Act’s creation of an understanding of indefinite protection of those marks during continued use, see McAirlaids, Inc. v. Kimberly-Clark Corp., 756 F.3d 307, 310 (4th Cir. 2014) (explaining that “trademark law indefinitely protects” identifiers). These rules and understandings generate PFI’s “legitimate claim of entitlement” to the Redskins Marks. See, e.g., Perry, 408 U.S. at 599-601 (“understanding” of “permanent tenure” “foster[ed]” in contract was “property interest”); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 539 (1985) (statutorily conferred tenure was “property”).
29 REDACTED FOR PUBLIC FILING

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registrations nearly half a century after they were first registered by the PTO without opposition. (Anten Decl. ¶10 (RFA 53)). Indeed, PFI was effectively lulled into a false sense of security when, in 1972, Leon Cook threatened to commence an action against PFI on behalf of Native Americans over the team’s name, but no such suit was filed until twenty years later. (Id. ¶10 (RFA 54); see also id. ¶9 & Ex. 49 (deposition of Leon Cook at 62:6-63:7)).
The Court should recognize that, at some point, it is no longer just for a registrant to be required to defend its marks decades after the fact, where nothing prevented a more proximate challenge, where the registrant reasonably relied on the lack of opposition to develop the goodwill in its marks, and where the delay substantially prejudices the registrant’s ability to present all evidence, including witness testimony and documentary evidence, that would have been available with a more timely challenge. To hold otherwise would allow potential challengers to simply “wait out” a registration until decades after the registrant’s percipient witnesses or documents are no longer available, substantially prejudicing the registrant’s ability to defend itself. PFI was therefore denied a “fair trial,” which “is a basic requirement of due process.” Withrow v. Larkin, 421 U.S. 35, 46 (1975) (citation and quotation marks omitted).
CONCLUSION Defendants’ motion for summary judgment should be granted in its entirety. Dated: February 23, 2015
Respectfully submitted, /s/ Craig C. Reilly Craig C. Reilly, Esq. (VSB # 20942) craig.reilly@ccreillylaw.com THE LAW OFFICE OF CRAIG C. REILLY 111 Oronoco Street Alexandria, Virginia 22314 Tel: (703) 549-5354 Fax: (703) 549-5355
30 REDACTED FOR PUBLIC FILING

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Robert L. Raskopf (pro hac vice) robertraskopf@quinnemanuel.com Todd Anten (pro hac vice) toddanten@quinnemanuel.com Claudia T. Bogdanos (pro hac vice) claudiabogdanos@quinnemanuel.com Jessica A. Rose (pro hac vice) jessicarose@quinnemanuel.com Jennifer D. Bishop (pro hac vice) jenniferbishop@quinnemanuel.com QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Tel: (212) 849-7000 Fax: (212) 849-7100 Counsel for Plaintiff Pro-Football, Inc.
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CERTIFICATE OF SERVICE

I hereby certify that on February 23, 2015, I caused the foregoing pleading or paper to be
filed and served electronically by the Court’s CM/ECF system upon all registered users in this
action, including the following counsel of record:
Jesse A. Witten Jeffrey J. Lopez Adam Scott Kunz Tore T. DeBella Jennifer Criss DRINKER BIDDLE & REATH LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 Tel : (202) 842-8800 Fax : (202) 842-8465 Jesse.Witten@dbr.com Jeffrey.Lopez@dbr.com Adam.Kunz@dbr.com Tore.DeBella@dbr.com Jennifer.Criss@dbr.com

Dated: February 23, 2015

/s/ Craig C. Reilly Craig C. Reilly, Esq. (VSB # 20942) craig.reilly@ccreillylaw.com THE LAW OFFICE OF CRAIG C. REILLY 111 Oronoco Street Alexandria, Virginia 22314 Tel: (703) 549-5354 Fax: (703) 549-5355

REDACTED FOR PUBLIC FILING

 
 Case 1:14-cv-01043-GBL-IDD Document 69 Filed 02/26/15 Page 1 of 3 PageID# 1168

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

PRO-FOOTBALL, INC.,
Plaintiff,
v.
AMANDA BLACKHORSE, MARCUS BRIGGS-CLOUD, PHILLIP GOVER, JILLIAN PAPPAN and COURTNEY TSOTIGH,
Defendants.

Civil Action No.: 1:14-cv-1043-GBL-IDD

DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNTS 1, 2, AND 7 COME NOW, pursuant to Federal Rule of Civil Procedure 56, Local Civil Rule 56, and this Court’s Scheduling Order, Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan, and Courtney Tsotigh, by and through counsel, and hereby respectfully move this Court for partial Summary Judgment on Counts 1, 2, and 7 of Plaintiff Pro-Football, Inc.’s Complaint. Defendants respectfully direct the Court’s attention to their Memorandum of Facts and Law and Exhibits thereto, submitted in support of this Motion. WHEREFORE, for the reasons above and provided in Defendants’ Memorandum, Defendants respectfully pray that the Court grant this Motion, enter the attached Proposed Order granting partial Summary Judgment in favor of Defendants, and to award to Defendants such other and further relief as the Court deems to be just and proper.

Case 1:14-cv-01043-GBL-IDD Document 69 Filed 02/26/15 Page 2 of 3 PageID# 1169

Dated: February 26, 2015

Respectfully submitted,
/s/ Jeffrey J. Lopez Jesse A. Witten (pro hac vice pending) Jeffrey J. Lopez (Va. Bar No. 51058) Adam Scott Kunz (VA Bar No. 84073) Tore T. DeBella (VA Bar No. 82037) Jennifer T. Criss (VA Bar No. 86143) DRINKER BIDDLE & REATH LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 Telephone: (202) 842-8800 Facsimile: (202) 842-8465 Email: Jesse.Witten@dbr.com
Jeffrey.Lopez@dbr.com Adam.Kunz@dbr.com Tore.DeBella@dbr.com Jennifer.Criss@dbr.com
Counsel for Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh

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CERTIFICATE OF SERVICE I hereby certify that on this 26th day of February, 2015, the foregoing pleading or paper was filed and served electronically by the Court’s CM/ECF system upon all registered users in this action:

/s/ Jeffrey J. Lopez

Jeffrey J. Lopez

DRINKER BIDDLE & REATH LLP

1500 K Street, N.W., Suite 1100

Washington, D.C. 20005-1209

Telephone: (202) 842-8800

Facsimile: (202) 842-8465

Email:

Jeffrey.Lopez@dbr.com

Counsel for Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh

 
 Case 1:14-cv-01043-GBL-IDD Document 71 Filed 02/26/15 Page 1 of 45 PageID# 1176

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

PRO-FOOTBALL, INC.,
Plaintiff,
v.
AMANDA BLACKHORSE, MARCUS BRIGGS-CLOUD, PHILLIP GOVER, JILLIAN PAPPAN and COURTNEY TSOTIGH,
Defendants.

Civil Action No.: 1:14-cv-1043-GBL-IDD

DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNTS 1, 2, AND 7
Jesse A. Witten (pro hac vice) Jeffrey J. Lopez (VA Bar No. 51058) Adam Scott Kunz (VA Bar No. 84073) Tore T. DeBella (VA Bar No. 82037) Jennifer T. Criss (VA Bar No. 86143) DRINKER BIDDLE & REATH LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 Telephone: (202) 842-8800 Facsimile: (202) 842-8465 Jesse.Witten@dbr.com Jeffrey.Lopez@dbr.com Adam.Kunz@dbr.com Tore.DeBella@dbr.com Jennifer.Criss@dbr.com
Counsel for Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh

Case 1:14-cv-01043-GBL-IDD Document 71 Filed 02/26/15 Page 2 of 45 PageID# 1177
TABLE OF CONTENTS
INTRODUCTION........................................................................................................................... 1
PROCEDURAL BACKGROUND ................................................................................................3
THE BLACKHORSE RECORD AND SUPPLEMENTATION .................................................4
MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE...............................5
A. PFI Adopted The Current Team Name In 1933 To Avoid Confusion With The Boston Braves Baseball Team, Not To Honor Native Americans. ...................5
B. Dictionaries, Reference Works, Other Written Sources, and Native Americans Expressly Recognize the Disparaging Nature Of The Term “Redskin.” .................................................................................................................6
1. Dictionaries .......................................................................................6
2. Other Written Sources.......................................................................7
3. Native Americans Have Experienced The Slur. ...............................9
C. Evidence Of Usage Reveals The Negative Connotations Of “Redskin.”...............10
1. “Redskin” Is More Closely Associated With Negative Modifiers Than Positive Modifiers.................................................10
2. In Harjo, Dr. Nunberg Demonstrated That “Redskin” Was Not Used In Late 20th Century Newspapers To Refer To Native Americans, Indicating That It Is A Disparaging Term. ...............................................................................................12
D. Plaintiff’s Expert Lexicographer Admitted That As Of 1967, 1975 and 1985, “Redskin” “Certainly Might Be Offensive.” ................................................14
E. Native American Individuals And Organizations Have Long Understood “Redskin” As A Slur And Have Opposed Plaintiff’s Team Name.........................15
1. At Haskell Institute in 1962, “Almost All the Students Resent[ed] Being Called Redskins.”...............................................15
2. In 1972, A “Delegation of American Indian Leaders” From The National Congress of American Indians And Other Organizations Met With The PFI President To Demand A Change In Team Name. ..................................................................16
3. Native American Groups and Individuals Continued to Oppose The Team’s Name And The Term “Redskin” as Offensive. ........................................................................................ 20
F. A 1996 Survey Showed That A Majority Of Native Americans Found The Term “Redskins” To Be Offensive To Themselves Or Others...............................25
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G. PFI Has Used The “Redskins” Team Name And The Marks In Ways That Mock Native Americans. ........................................................................................27
LEGAL STANDARD ...................................................................................................................29 ARGUMENT ................................................................................................................................. 30
I. THE TTAB DID NOT ERR IN FINDING THAT THE MARKS CONTAIN MATTER THAT “MAY DISPARAGE” NATIVE AMERICANS OR THAT BRING THEM INTO CONTEMPT OR DISREPUTE. THEREFORE, DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON COUNTS 1 AND 2..............................................30 A. There Is No Genuine Issue Of Material Fact That The Trademarks Contain Matter That “May Disparage.”......................31 1. Section 2(a) Does Not Require Proof of Actual Disparagement or Bad Intent, But Rather Only That the Term “May” Disparage the Target Group. .....................................31 2. The Record Evidence Clearly Demonstrates That the Term “Redskins” May Disparage Native Americans...............................32 a. “Redskins,” as Used in the Marks, Refers to Native Americans. ..........................................................................33 b. The Term “Redskins” Is One That May Disparage Native Americans................................................................34 B. There Is No Genuine Issue Of Material Fact That The Trademarks Contain Matter That Bring Native Americans Into “Contempt Or Disrepute.” .......................................................36
II. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON COUNT 7................................................................................................................37 A. Laches Does Not Apply Because Of The Public Interests At Stake...........................................................................................37 B. Defendants Did Not Unreasonably Delay In Petitioning The TTAB.......................................................................................37 C. PFI Can Not Prove Prejudice From Any Delay..............................38
CONCLUSION .............................................................................................................................39
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TABLE OF AUTHORITIES
Page(s)
CASES
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).................................................................................................................31
Blackhorse v. Pro-Football, Inc., No. 92046185, 2014 WL 2757516 (T.T.A.B. 2014) ....................................................... passim
Bonds v. Leavitt, 629 F.3d 369 (4th Cir. 2011) ...................................................................................................31
Brittingham v. Jenkins, 914 F.2d 447 (4th Cir. 1990) ...................................................................................................38
In re Geller, 751 F.3d 1355 (Fed. Cir. 2014), cert. denied, No. 14-175, 2015 WL 132962 (U.S. Jan. 12, 2015) .....................................................................................................31, 33, 37
Glynn v. EDO Corp., 710 F.3d 209 (4th Cir. 2013) ...................................................................................................31
Harjo v. Pro-Football, Inc., 284 F. Supp. 2d 96 (D.D.C. 2003) .....................................................................................33, 35
Harjo v. Pro-Football, Inc. 415 F.3d 44 (D.C. Cir. 2005) .............................................................................................38, 39
Harjo v Pro-Football, Inc., 50 U.S.P.Q.2d 1705, 1999 WL 375907 (T.T.A.B. 1999) ................................................ passim
Harjo v. Pro-Football, Inc., 565 F.3d 880 (D.C. Cir. 2009) .................................................................................................38
In re Heeb Media, LLC, No. 78558043, 2008 WL 5065114 (T.T.A.B. 2008) ....................................................... passim
In re Lebanese Arak Corp., No. 77072261, 2010 WL 766488 (T.T.A.B. 2010) ...........................................................32, 34
In re McGinley, 660 F.2d 481 (C.C.P.A. 1981) ...........................................................................................35, 40
Ray Commc'ns, Inc. v. Clear Channel Commc'ns, Inc., 673 F.3d 294 (4th Cir. 2012) ...................................................................................................39
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Resorts of Pinehurst, Inc. v. Pinehurst Nat’l Corp., 148 F.3d 417 (4th Cir. 1998) ...................................................................................................38
Ritchie v. Simpson, 170 F.3d 1092 (Fed Cir. 1999).................................................................................................35
Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455 (4th Cir. 1996) .....................................................................................................38
In re Squaw Valley Dev. Corp., Nos. 76511144, 76511145, 2006 WL 1546500 (T.T.A.B. 2006)................................32, 35, 37
Swatch AG v. Beehive Wholesale, LLC, 739 F.3d 150 (4th Cir. 2014) .................................................................................................4, 5
In re Tam, No. 85472044, 2013 WL 5498164 (T.T.A.B. 2013) .............................................32, 34, 35, 37
Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609 (7th Cir. 1965) ...................................................................................................39
STATUTES, RULES & REGULATIONS 15 U.S.C. § 1052(a) (Lanham Act § 2(a)) ............................................................................. passim 15 U.S.C. § 1064..............................................................................................................................3 15 U.S.C. § 1071(b) .....................................................................................................................4, 5 Fed. R. Civ. P. 56(a) ......................................................................................................................31 Fed. R. Civ. P. 56(c) ......................................................................................................................31 Lanham Act, § 2(a) ........................................................................................................3, 32, 33, 35 OTHER AUTHORITIES H. Rep. No. 2283 (77th Cong. 2d Sess.) (June 25, 1942)..............................................................33 Hearings before the Comm. on Patents, House of Representatives, 78th Cong., 1st
Sess. (Apr. 7-8, 1943) ..............................................................................................................33 Hearings before the Subcomm. of the Comm. on Patents, 78th Cong., 2d Sess.
(Nov. 15-16, 1944)...................................................................................................................33 House of Representatives, 76th Cong. 1st Sess. (March 28, 29 and 30, 1939) .............................33 House of Representatives, 77th Cong., 1st Sess. (Nov. 4, 12, 13 and 14, 1941)...........................33
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INTRODUCTION On June 18, 2014, the Trademark Trial and Appeal Board (“TTAB”) ruled that six trademark registrations of Plaintiff Pro-Football, Inc. (“PFI”) should be cancelled. PFI is the owner of the Washington NFL football team, and Defendants are five Native American individuals who petitioned the TTAB to cancel the registrations. The TTAB found that the trademarks contain matter that “may disparage” Native Americans or bring them into contempt or disrepute, and that the registrations were therefore issued in violation of 15 U.S.C. § 1052(a). See Blackhorse v. Pro-Football, Inc., No. 92046185, 2014 WL 2757516 (T.T.A.B. 2014); 15 U.S.C. § 1052(a) (trademarks containing matter that “may disparage” persons are not eligible for registration). The matter that may disparage is the term “redskin,” which is an ethnic slur of Native Americans. In finding that the trademarks “may disparage,” the TTAB relied upon dictionaries and other reference sources stating that “redskin” is a slur term, id. at *12-14, *25-26; the fact that “redskin” on its face refers to the real or imagined skin color of Native Americans, id. at *25; continuous opposition to the team’s name by the National Congress of American Indians (“NCAI”) (the oldest and largest national Native American organization) and the American Indian Movement (“AIM”) (an activist Indian advocacy organization), id. at *17-21, *26-27; a data compilation by expert linguist Dr. Geoffrey Nunberg showing that “redskin” is never used in late twentieth century newspapers as a neutral term to refer to Native Americans, id. at *1516, *26; and an admission by PFI’s expert lexicographer that from 1967-85 the term “redskin” “certainly might be offensive,” id. at *17. In this proceeding, Defendants have supplemented the record with additional evidence that the trademarks contain matter that “may disparage” Native Americans, establishing the
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following: (1) in 1962, “almost all the students at Haskell Institute resent[ed] being called redskins” (at the time, Haskell was a post-secondary vocational school for American Indians, with 1,000 students); (2) the NCAI, AIM, and other diverse Indian organizations found common ground to fight the team name and met with PFI’s President in 1972 to demand that PFI change the team name; (3) in 1972, the University of Utah dropped the name “Redskins” due to concern that the term was offensive; (4) further efforts by NCAI over decades to bring about a change in PFI’s team name; (5) declarations from prominent Native Americans regarding their own experiences with “redskin” used as a slur, their understanding of the term, and the basis for their understanding; and (6) an additional data analysis by Dr. Nunberg demonstrating the negative connotations of “redskin.”
The evidence establishes that there is no genuine issue of material fact that PFI’s trademarks contain matter that may disparage Native Americans. Using the framework of analysis employed by the TTAB and the Federal Circuit in cases under 15 U.S.C. § 1052(a), there is no genuine issue of material fact that the trademarks contain matter that may be viewed as disparaging by a “substantial composite” of Native Americans.
Furthermore, there is no genuine issue of material fact that the TTAB did not err in its alternative ruling that the trademarks bring Native Americans into contempt or disrepute.
Finally, PFI’s argument that the TTAB erred by not dismissing Defendants’ petition due to laches has no merit. Laches does not apply because the petition raised issues of broad public interest, Defendants did not unreasonably delay in bringing their petition, and PFI cannot demonstrate reliance on any unreasonable delay.
For these reasons, the Court should grant summary judgment to Defendants on Counts 1, 2, and 7.
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PROCEDURAL BACKGROUND PFI owns the Washington NFL football team. Between 1967 and 1990, the United States Patent and Trademark Office (“USPTO”) granted PFI’s applications to register six trademarks that contain “Redskins” or a derivation of that term. One registration was issued in 1967, three were issued in 1974, one in 1978, and an additional one in 1990. [Dkt. 1] ¶ 21. In August 2006, pursuant to 15 U.S.C. § 1064, five Native Americans – Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh1 (the Defendants in this case) – petitioned the TTAB to cancel PFI’s registrations. [Dkt. 1] ¶ 20. They sought cancellation on grounds that PFI’s marks contain matter (specifically the term “Redskins” or derivation of “Redskins”) that “may disparage” Native Americans or bring them into contempt or disrepute and were therefore ineligible for registration under 15 U.S.C. § 1052(a), Section 2(a) of the Lanham Act. On June 18, 2014, the TTAB granted the petition to cancel PFI’s six trademark registrations, finding that the marks contain matter that both “may disparage” Native Americans and bring them into contempt or disrepute. [Dkt. 1] ¶ 33; see Blackhorse v. Pro-Football, Inc., 2014 WL 2757156 (T.T.A.B. 2014). The TTAB’s decision in Blackhorse was the second time that the TTAB had granted a petition to cancel PFI’s trademark registrations. Previously, in 1992, Suzan Shown Harjo and six other Native Americans petitioned the TTAB to cancel the registrations. [Dkt. 1] ¶ 16. In 1999, the TTAB granted the Harjo petition to cancel, also on grounds that the marks contain matter that “may disparage” Native Americans or bring them into contempt or disrepute. [Dkt. 1] ¶ 17; 1 Ms. Blackhorse is a member of the Navajo Nation; Mr. Briggs-Cloud is a member of the Muscogee Nation of Florida; Mr. Gover is a member of the Paiute Indian Tribe of Utah; Ms. Pappan is a member of the Omaha Tribe of Macy, Nebraska; and Ms. Tsotigh is a member of the Kiowa Tribe of Oklahoma. [Dkt. 51].
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Harjo v Pro-Football, Inc., 50 U.S.P.Q.2d 1705, 1999 WL 375907, at *48 (T.T.A.B. 1999). PFI appealed to the District Court for the District of Columbia, which held that the TTAB’s decision was not supported by substantial evidence and that the TTAB erred in not dismissing the Harjo petition due to laches. After two trips to the D.C. Circuit, the decision was affirmed only as to laches. The federal proceedings in Harjo did not conclude until 2009. [Dkt. 1] ¶¶ 16-19, 24-26. Thus, the Blackhorse petition was filed in August 2006 while Harjo was on appeal to the federal courts; however, the TTAB suspended action in Blackhorse until after the Harjo federal litigation proceedings concluded. Id. ¶¶ 20-23.
On August 14, 2014, PFI filed this action under 15 U.S.C. § 1071(b) seeking to overturn the TTAB’s June 18, 2014 decision. A § 1071(b) action is a new civil action in which the parties may introduce new evidence to supplement the record created during the TTAB proceeding. See Swatch AG v. Beehive Wholesale, LLC, 739 F.3d 150, 156 (4th Cir. 2014).
PFI alleges that the TTAB erred in granting the Blackhorse petition. Counts 1 and 2 allege that the TTAB erred in finding that its marks contain matter that “may disparage” Native Americans or bring them into contempt or disrepute. Counts 3 through 6 assert Constitutional arguments. Count 7 alleges that the TTAB erred in failing to dismiss the Blackhorse petition on grounds of laches.
Defendants request partial summary judgment on Counts 1, 2, and 7. PFI has moved for partial summary judgment on Counts 3-6, its Constitutional arguments, see [Dkt. 54], and Defendants will oppose that motion and cross-move for summary judgment on those Counts in accordance with the Court’s briefing schedule, see [Dkt. 53].
THE BLACKHORSE RECORD AND SUPPLEMENTATION In the Blackhorse TTAB proceeding, the parties agreed that, with certain exceptions, the
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Harjo TTAB record would serve as the Blackhorse TTAB record. [Dkt. 1] ¶ 28. In addition, the parties agreed to waive all non-relevance evidentiary objections as to the evidence in the Harjo record (except as to evidence the TTAB ruled inadmissible in Harjo). See Ex. A Declaration Of Jennifer T. Criss In Support Of Defendants’ Motion For Partial Summary Judgment On Counts 1, 2, and 7 (“Criss Decl.”) Ex. 2.
Pursuant to 15 U.S.C. § 1071(b)(3), this Court is to review the TTAB’s decision de novo based on the TTAB Blackhorse record as well as any additional evidence that the parties introduce. See [Dkt. 37]; Swatch, 739 F.3d at 156.
Defendants support their motion for summary judgment with excerpts from the Blackhorse TTAB record and supplemental evidence. Evidence from the Blackhorse TTAB record is identified as such in the Declaration of Jennifer T. Criss.
MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE A. PFI Adopted The Current Team Name In 1933 To Avoid Confusion With
The Boston Braves Baseball Team, Not To Honor Native Americans. 1. PFI’s first year in the NFL was 1932, when the team played in Boston and was known as the Boston Braves. At the time, there was also a Boston Braves professional baseball team (now the Atlanta Braves), and PFI played at Braves Field, the home of the baseball team. In 1933, PFI’s owner, George Preston Marshall, changed the football team’s name to “Boston Redskins,” and moved the team to Fenway Park, home to the Boston Red Sox. [Dkt. 1] ¶ 34; Criss Decl. Ex. 3 at Request Nos. 1, 2. 2. Marshall changed the name from “Braves” to “Redskins” in order “to distinguish it from the professional baseball team,” Boston Braves. [Dkt. 1] ¶ 34. Marshall explained at the time that he was changing the name to avoid confusion with the baseball team and not because of any Native Americans associated with the team: “The fact that we have in our head coach, Lone
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Star Dietz, an Indian, together with several Indian players, has not, as may be suspected, inspired me to select the name Redskins.” Criss Decl. Ex. 4. As a 1972 game program explained, when Marshall “switched playing sites, he wanted to change names but keep the Indian motif. Since he was now sharing a park with the Red Sox and at the same time liked Harvard’s crimson jerseys, Redskins seemed appropriate.” Criss Decl. Ex. 5. In 1937, Marshall moved the team to Washington. [Dkt. 1] ¶ 34.
B. Dictionaries, Reference Works, Other Written Sources, and Native Americans Expressly Recognize the Disparaging Nature Of The Term “Redskin.” 1. Dictionaries
3. Many dictionaries – dating back to 1898 – contain usage labels indicating that “redskin” is an offensive, contemptuous or disparaging way to refer to Native Americans:
• Webster’s Collegiate Dictionary (1898): “often contemptuous.” • The Random House Dictionary of the English Language (1966): “Often
Offensive.” • Thorndike-Barnhart Intermediate Dictionary (1974): “a term often considered
offensive.” • Oxford American Dictionary (1980): “contemptuous.” • The American Heritage Dictionary of the English Language (1982): “Offensive
Slang.” • Webster’s Ninth New Collegiate Dictionary (1983): “usu[ally] taken to be
offensive.” • Merriam-Webster Collegiate Dictionary (1983): “usu[ally] taken to be offensive.” • Collier’s Dictionary (1986): “considered offensive.” Criss Decl. Exs. 6-11; Ex. 12 at 23:18-26:11; Ex. 14 at 143:13-25, 183:15-184:16; Ex. 13 at 11. 4. These dictionaries were published either before or during the period in which PFI obtained its registrations. Furthermore, the parties’ expert linguists, Dr. Geoffrey Nunberg for
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Defendants and Ronald Butters for Plaintiff, agree that dictionaries tend to lag in updating usage labels for ethnic slurs. Criss Decl. Ex. 15 at 56:18-57:7, 216:24-218:1; Ex. 16 at 56-57; Ex. 17 at 146:13-147:4.
2. Other Written Sources. 5. Numerous scholarly articles, newspaper articles and other written sources recognize that “redskin” is a disparaging term. 6. For instance, a 1962 article in The American Journal of Sociology published by the University of Chicago Press identified “redskin” as an “ethnophaulism,” a “racial or ethnic group derogatory nickname for another.” The article gives examples of such derogatory names used by one group to refer to another: “whites call Negroes ‘niggers,’” “the Spanish-speaking are called ‘spics,’” “Gentiles call Jews ‘Yids,’” and “[w]hites call Indians ‘redskins.’” Criss Decl. Ex. 18 at 442 (emphasis added). 7. Similarly, the sociologist Irving Lewis Allen has written a well-regarded scholarly book that cites “redskin” as an example of an ethnic slur. In his book, Unkind Words: Ethnic Labeling From Redskin to WASP (1990), Allen identified “redskin” as a “slur-name” and a “racial epithet” – and used “Redskin” in the book’s title as an example of a slur. Criss Decl. Ex. 19 at 3, 18. Plaintiff’s expert linguist, Ronald Butters, described Allen as “an authoritative sociologist who is respected within the general field of ethnic labeling” and Butters testified that Unkind Words “certainly is a respected source.” Criss Decl. Ex. 17 at 141:7-143:21. 8. Additional scholarly works and written sources describing “redskin” as a disparaging epithet include: • Encyclopedia Britannica (1911) at 452 (“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 Routhaüte, or French Peaux-rouges, which have scientific standing.’”).
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• Alden Vaughan, “From White Man to Redskin: Changing Anglo-American Perceptions of the American Indian,” American Historical Review (October 1982) at 942, 949 (“redskins” is an “epithet.”).
• Haig Bosmajian, Defining the ‘American Indian’: A Case Study in the Language of Suppression, in Exploring Language, G. Goshgarian, Ed. (1983) at 295 (“Our language includes various phrases and words which relegate the Indian to an inferior status,” including “Redskins”).
• Robert Keller, “Hostile Language: Bias in Historical Writing About American Indian Resistance,” Journal of American Culture (1986) at 15 (providing “redskin” as an example of “deprecatory language.”).
• Michigan Civil Rights Commission Report, “Use of Nicknames, Logos and Mascots Depicting Native American People in Michigan Education Institutions” (1988) at 45, 91 (“Redskins” assigns an “inferior status,” and is a “blatantly stereotypic name”.)
• Jay Coakley, Sport in Society: Issues and Controversies (1990) at 206 (“The use of the name Redskins cannot be justified under any conditions. To many native Americans, redskin is as derogatory as ‘nigger’ is for black Americans.”).
• Robert Jensen, “Banning ‘Redskins’ From the Sports Page: The Ethics and Politics of Native American Nicknames,” Journal of Mass Media Ethics (1994) at 21 (“redskin” is “derogatory name,” a “racist term that has been used against an oppressed group”).
Criss Decl. Exs. 20-26.
9. Another scholarly essay reflecting the slur nature of “redskin” is a famous 1939
article by literary critic Philip Rahv, entitled Paleface and Redskin. Rahv divided American
writers into two groups: “redskins” and “palefaces,” doing so in a way that demonstrates the
wild, primitive connotations of “redskins.” According to Rahv, paleface writers are erudite and
intellectual, whereas “redskin” writers are “low-brow,” “primarily emotional, spontaneous and
lacking in personal culture,” with a “habitual hostility to ideas.” Rahv further bemoaned that
“[a]t present, the redskins are in command of the situation, and literary life in America has
seldom been so deficient in intellectual power.” Criss Decl. Ex. 27 at 2, 4.
10. In addition, many newspaper articles between 1967 and 1990 mention or reflect
the fact that “redskin” is a disparaging term to refer to Native Americans. For example, a 1972
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article in The Washington Star discussing the controversy over the team’s name contrasted the slur, “redskin,” with the neutral term, “Indian”: “Of course, the names and symbols differ. They range from the name Indian all the way to Redmen and Redskins, and the symbols go from strong and gallant caricatures, to silly war-whooping idiots.” Criss Decl. Ex. 28.
11. Other editorials, columns and articles expressing the understanding that “redskin” is an ethnic slur were published between 1967 and 1990 in, among other places, The Washington Post, The Baltimore Evening Sun, The Chicago Tribune, The Wall Street Journal, and Sports Illustrated. See, e.g., Criss Decl. Ex. 29-55. One writer noted that the name of the Washington team was “the most glaring example” of a one-dimensional caricature of Native Americans as “savage warmonger[s].” Criss Decl. Ex. 35. A repeated observation was that the team name should shock the conscience just as much as it would to name a team after a disparaging term for any other ethnic group, and that “Redskins” was the most offensive name still in use. See Criss Decl. Exs. 30, 43, 48.
3. Native Americans Have Experienced The Slur. 12. Native Americans attest to what the dictionaries and other reference sources declare – that “redskin” is a slur term. Attached as Exhibits B-E are Declarations of four prominent Native Americans – Raymond Apodaca (former VP of the National Congress of American Indians (NCAI) and Governor of his pueblo), Leon Cook (former NCAI President and former Council Member and Tribal Administrator of his tribe), Kevin Gover (prominent attorney, former Director of the Bureau of Indian Affairs, and Executive Director since 2007 of the Smithsonian National Museum of the American Indian), and Suzan Shown Harjo (former NCAI Executive Director and recipient of the Presidential Medal of Freedom) – averring their understanding that “redskin” is a slur term and recounting their experiences being called a “redskin” as a slur. See Ex. B, Apodaca Decl. ¶ 4-7; Ex. C, Cook Decl. ¶ 4; Ex. D, Gover Decl.
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¶ 5; Ex. E, Harjo Decl. ¶¶ 5, 19. Mr. Apodaca was told at a bus stop in Lubbock, Texas, that he must eat his lunch outside and not at the lunch counter because he was a “redskin.” Ex. B, Apodaca Decl. ¶ 15. Mr. Gover was called a “dirty redskin” on the playground in elementary school and a “redskin” on the football field by members of opposing teams in order to bully him. Ex. D, Gover Decl. ¶ 5. Growing up in rural Oklahoma, Ms. Harjo was called a “redskin” as an insult dozens of times, at the same time that “No Indians or Dogs Allowed” signs were posted in stores near where she lived. Ex. E, Harjo Decl. ¶¶ 5-6.
C. Evidence Of Usage Reveals The Negative Connotations Of “Redskin.” 1. “Redskin” Is More Closely Associated With Negative Modifiers Than Positive Modifiers.
13. “Redskin” is not a synonym used interchangeably with “Indian,” but rather a term correlated with negative stereotypes of Native Americans. Expert linguist, Geoffrey Nunberg, Ph.D.,2 studied the connotations of the term “redskin.” A word’s connotations are the associations—positive, negative or otherwise— that accompany a word beyond the word’s literal meaning. His study revealed that “redskin” has negative connotations when compared with the neutral term “Indian.”
14. Dr. Nunberg compared the relative frequencies with which “redskin” and “Indian” were modified by negative or positive terms. For this study, Dr. Nunberg used the newspaperarchive.com database, which includes records from 6,200 newspapers, drawn from
2 Dr. Nunberg is an Adjunct Full Professor at the School of Information at the University of California at Berkeley. He was previously a Consulting Professor of Linguistics at Stanford University and a principal scientist at the Xerox Palo Alto Research Center, a usage editor for the American Heritage Dictionary, and was the Chair of the usage panel of that dictionary. His areas of specialization include Lexical Semantics (the study of the use of words) and Lexicography (the study of dictionaries and the procedures involved in producing dictionaries). He has also done work in Computational Linguistics and, in particular, in the use of techniques of information retrieval with regard to large-scale text databases, and has published numerous articles in the field of linguistics. Criss Decl. Ex. 15 at 10:4-12:18; Ex. 56 at 1-15.
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every state, from the colonial era to the present. Dr. Nunberg queried the archive from 1920

until 1979 to determine how frequently various positive and negative terms were used to modify

either “redskin” or “Indian.” Since throughout that period “Indian” was used much more

frequently than “redskin” in the database, Dr. Nunberg focused not on the absolute numbers of

uses of each word, but rather on how the ratio of uses of “Indian” and “redskin” varied based on

whether Native Americans were being discussed in positive or negative ways. Criss Decl. Ex. 15

at 82:16-84:25, 224:11-225:6; Ex. 16 at 8-11.

15. The following table shows the results of Dr. Nunberg’s queries:

Table 1: Ratio of Indian to redskin in selected linguistic contexts, newspaperarchive.com

Linguistic context
___ princess friendly
contemporary
loyal, *faithful
*courageous, brave
hostile marauding savage treacherous
bloodthirsty
screaming, yelling, shrieking, whooping murderous thieving crafty, wily
noble __bit the dust Pesky, infernal

Modifying redskin
4 16
7
2.5
1.5
79 39 69 6
17
10
9 5 58
92 85 50

Modifying Indian
5403 4628
1598
265
154
3042 1104 1849 133
332
195
100 42 233
332 52 22

Ratio
1350.8 289.3 228.3 106.0
102.7
38.5 28.3 26.8 22.2
19.5
19.5
11.1 8.4 4.0
3.6 0.6 0.44

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*No actual hits for redskin in this period.3 Criss Decl. Ex. 15 at 82:16-84:25, 224:11-225:6; Ex. 16 at 10; Ex. 57 at 10.
16. Dr. Nunberg’s work demonstrates that “redskin” carries negative connotations. The Indian-to-Redskin ratio is much higher when positive modifiers are used than when negative modifiers are used. Thus, if a negative modifier like “pesky, infernal, ‘___ bit the dust,’ thieving, murderous, screaming, yelling, shrieking, whooping, treacherous, save, marauding and hostile” is used, it is more likely that a Native American will be referred to as “redskin” instead of “Indian” than if a positive modifier like “___ princess, friendly, loyal, faithful, courageous and brave” is used. In contrast, the reverse is true for positive modifiers. For every “friendly redskin,” there are 289 references to “friendly Indian,” but for every “pesky/infernal/crafty/wily redskin” there are only 2.3 references to “pesky/infernal/crafty/wily Indian.” This means that the probability that an author will choose “redskin” over “Indian” is 125 times greater (289 ÷ 2.3) if the word is modified by “pesky/infernal/crafty/wily” than if the word is modified by “friendly.”4
2. In Harjo, Dr. Nunberg Demonstrated That “Redskin” Was Not Used In Late 20th Century Newspapers To Refer To Native Americans, Indicating That It Is A Disparaging Term.
17. As an expert in Harjo, in 1996, Dr. Nunberg queried a Dialog database (a tool on which he relied at that time in the ordinary course of his work as a linguist, with a billion words of text and containing the text of 60 newspapers dating from 1982) to evaluate the use of the
3 “The ratios for courageous and for faithful are lower limits. These terms do not in fact occur with redskin in this period. The ratios given are based on an assignment of 0.5 to non-occurring terms and their comparators for purposes of calculation (i.e., a ratio of 71 to 0 is entered as 71.5 to 0.5). This is a standard work-around in such cases.” Criss Decl. Ex. 16 at 10. 4 The modifier “noble” was used with “redskin” with similar relative frequency as negative modifiers. Dr. Nunberg explained that “noble redskin” is used as a subtype of the stereotypical “noble savage:” either a stock figure representing naïve wisdom, or an object of derision where “noble” is only applied ironically. Criss Decl. Ex. 16 at 38-40.
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term “redskin” in newspapers. Criss Decl. Ex. 58 at 305:6-305:20, 314:22-315:4. Dr. Nunberg’s research demonstrated that newspaper writers avoid the word redskin(s) because it is not a neutral term, but is a pejorative term.
18. After filtering out articles about the football team and redskin potatoes, Nunberg’s research uncovered a mere 71 stories in which “redskin(s)” was used in reference to American Indians. Id. at 306:22-307:8. This numerical result is significant in and of itself. The finding of only 71 articles using “redskin(s)” to refer to American Indians, compared with 74,000 instances of “American Indian(s)” and 73,000 instances of “Native American(s),” means that “redskin(s)” is very rarely used in newspapers to refer to Native American individuals or groups. Id. at 307:12-308:2. There were also over one million instances in the database of “Indian” (although that figure also includes references to individuals from the Asian subcontinent). Id. at 308:3308:11. Thus, the data show that writers in newspapers intentionally avoid using the term “redskin,” opting instead for “Indian,” “American Indian,” or “Native American.” Id. at 307:12308:11.
19. Furthermore, none of the 71 articles involved the use of “redskin(s)” as a straightforward denotative or neutral reference to American Indians. For instance, as Dr. Nunberg put it, “there were no sentences in the form ‘there are five redskins on the panel’ or ‘redskins have moved into the region in increasing numbers’ or ‘redskin actor Jay Silverheels was honored last night’ in the sense you might expect which [sic: if it] was an ordinary neutral term that was not disparaging.” Id. at 308:16-308:22. Most of the 71 stories involved “mentions” of the term “redskin” as opposed to “uses” of the term “redskin,” i.e., the term was not used to refer to anyone but was discussed only as a term and often included in quotation marks. Id. at 308:23-309:3. For example, on mention from The San Francisco Chronicle
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stated, “[i]n almost every movie the bad guy bit the dust and that was the end of their story. Another cartoon figure had been erased from the script. As we rejoiced in their agony and cheered their demise, it never occurred to us that the ‘redskins,’ ‘krauts,’ and ‘japs’ represented real people.” Id. at 309:4-309:23.
D. Plaintiff’s Expert Lexicographer Admitted That As Of 1967, 1975 and 1985, “Redskin” “Certainly Might Be Offensive.”
20. David K. Barnhart is a lexicographer, an expert in creation and interpretation of dictionaries, retained by PFI to testify in both Harjo and this action.
21. Counsel for PFI asked Mr. Barnhart about his opinions of the “word redskin in 1967 as applied to American Indian persons,” based on Mr. Barnhart’s consideration of Dr. Nunberg’s testimony, Mr. Barnhart’s own research, and his consideration of all the accepted scientific basis used in the field of linguistics by lexicographers. In his response, Mr. Barnhart admitted that the term “redskin” “certainly might be offensive.” Criss Decl. Ex. 14 at 180:20181:12 (emphasis added). Mr. Barnhart testified that his opinion was the same for 1975 and 1985. Id. at 182:4-12.5
5 Mr. Barnhart opined that the term “redskin” was not disparaging because intent to offend is required for disparagement. Criss Decl. Ex. 14 at 181:13-182:3. As a matter of law, the TTAB rejected Mr. Barnhart’s construction of “disparaging” as requiring intent. See Blackhorse, 2014 WL 2757156 at*13 (“… Mr. Barnhart’s conclusion is based on too narrow a construction because he views the label ‘disparaging’ as requiring intent”) & *17 (“Mr. Barnhart testifies that while the term ‘redskin(s)’ was not disparaging ‘as applied to American Indian persons’ in 196785 it might have been offensive. As noted above, Mr. Barnhart attaches intent of the speaker to the word disparaging and his view of offensive is more in line with the meaning of disparaging in the context of Section 2(a) [15 U.S.C. § 1062(a)].”).
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E. Native American Individuals And Organizations Have Long Understood “Redskin” As A Slur And Have Opposed Plaintiff’s Team Name.
1. At Haskell Institute in 1962, “Almost All the Students Resent[ed] Being Called Redskins.”
22. In 1962, Haskell Institute was a post-secondary coeducational vocational training
school for Indians operated by the United States government. In 1962, more than 1,000
American Indian students attended Haskell Institute from at least 80 different tribes covering 30 states. Criss Decl. Ex. 59 at 7:10-8:9; Ex. 60 at 3-5; Ex. 61 at 270.6
23. Alan Dundes, a Professor of Folklore at University of California-Berkeley, and C.
Fayne Porter, an Instructor at Haskell Institute in Lawrence, Kansas, published a scholarly article
in American Speech: A Quarterly in Linguistic Usage regarding their research of the use of slang
by American Indian students at Haskell in 1962. Dundes and Porter observed that almost all of
the students at Haskell Institute resented being called “redskins:”
A great number of the slang expressions in common use at Haskell appear to be either neologisms or new combinations of old words. Some of the most interesting tend to be a type of blazon populaire, or ethnic slur. Navaho students are called Nava-Joes or simply Joes. Students from Alaska are labeled polar bears, huskies, seal herders, or Alaskamos. Students from Montana or Wyoming are sheep herders. Oklahoma Indians like to be called Okies, but are more often called ditch diggers and dust bowlers. North Carolinians are moonshiners. Floridians are known as gators, and an individual (Seminole) may be a gator boy or a gator girl. The Sioux are dog-eaters. Almost all the students resent being called redskins.
6 Professor James Riding In earned a Ph.D. in U.S. history, with an emphasis in American Indian history, from the University of California Los Angeles (UCLA), a Master’s degree in American Indian Studies, with a concentration in history and law, from UCLA, a Bachelor’s degree in history from Fort Lewis College, and Associate of Arts degree from Haskell Indian Nation Junior College. He is a member of the Pawnee Nation. Since 1990 he has taught at Arizona State University, and since 2004 he has been an Associate Professor of American Indian Studies teaching courses on American Indian concerns ranging from Indian sovereignty and the U.S. courts to struggles over repatriation, sacred sites, and human rights. Criss Decl. Ex. 60 at 1.
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Criss Decl. Ex. 61 at 271 (emphasis added).7 24. In the 1960s, Haskell was a microcosm of the national American Indian
population given its geographic and tribal diversity (aside from the fact that the students were young). According to Professor Riding In (who attended Haskell from 1972-74), in light of the geographic and tribal diversity of Haskell, the finding that “almost all” the students at Haskell Institute in 1962-63 “resented being called redskins” would most assuredly apply to the national American Indian population. Criss Decl. Ex. 59 at 131:23- 133:8; Ex. 60 at 5.8
25. Dundes and Porter were writing a scholarly piece intended for publication and therefore would have had every reason to be accurate in their statements, including the statement that “almost all the students resent being called redskins.” The authors were not advocating for any cause or purpose but merely recording and memorializing the use of language at Haskell in 1962-63. Criss Decl. Ex. 60 at 4.
2. In 1972, A “Delegation of American Indian Leaders” From The National Congress of American Indians And Other Organizations Met With The PFI President To Demand A Change In Team Name.
26. In 1972, a delegation of American Indian leaders consisting of the leadership of major national Native American organizations met with then-President of PFI, Edward Bennett Williams, to demand that PFI change the team name. The organizations included the NCAI, AIM, and the National Indian Youth Council (“NIYC”), among others. The effort was led by Leon Cook, then-President of the NCAI. Ex. C, Cook Decl. ¶¶ 8-14.
7 Alan Dundes, now deceased, was one of the most eminent 20th century American folklorists. Criss Decl. Ex. 15 at 190:10-190:12. American Speech is a well-regarded publication. Criss Decl. Ex. 17 at 113:22-114:3. 8 The school was Haskell Indian Nation Junior College when Professor Riding In attended; it is now Haskell Indian Nations University. Criss Decl. Ex. 60 at 1.
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27. From the 1960s to the present, NCAI has been the largest and most prominent national American Indian organization. NCAI was founded in 1944 to represent the interests and needs of Indian governments and communities. Criss Decl. Ex. 60 at 6; Ex. C, Cook Decl. ¶ 5; Ex. B, Apodaca Decl. ¶¶ 7, 12; Ex. E, Harjo Decl. ¶ 11.
28. In the late 1960s and the years thereafter, the NCAI had approximately 150 tribes as members; these tribes comprised approximately 50% of all American Indians. Criss Decl. Ex. 62 at 79:16-80:20, 93:14-22; Ex. C, Cook Decl. ¶ 6. There were 277 federally recognized tribes as of 1979 (apparently, the first year the Department of the Interior published a list). Criss Decl. Ex. 63. In 1972, NCAI’s member tribes comprised between 300,000 and 350,000 Native Americans. Criss Decl. Exs. 52-53.
29. AIM was founded in 1968 in Minneapolis to combat police violence against Indians. By the early 1970s, AIM had become the country’s largest militant Indian organization with thousands of members, supporters, and sympathizers from virtually all Indian tribes. AIM became involved in many of the most pressing issues facing Indian peoples and nations. Criss Decl. Ex. 59 at 152:8-11; Ex. 60 at 8-9; Ex. C, Cook Decl. ¶ 10.
30. NIYC was founded in 1961 by Indian college students to address educational and social issues relevant to Native Americans. In the early 1970s, NIYC advocated the use of activism to promote change and had hundreds of members from many different Indian tribes throughout the country. Criss Decl. Ex. 60 at 8-9; Ex. C, Cook Decl. ¶ 10.
31. Other Native American advocacy groups during this period included Americans for Indian Opportunity, run by LaDonna Harris (a Comanche and wife of then-U.S. Senator Fred Harris), and the Indian Legal Information Development Service (“ILIDS”), an educational and
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legislative oversight organization run by Harold Gross (who previously served as Staff Counsel for NCAI). Criss Decl. Ex. 64 at 7:20-8:17, 37:2-7; Ex. 59 at 152:12-15; Ex. 60 at 7-9.
32. In 1971, Leon Cook was elected President of NCAI on a platform of increased cooperation between NCAI and other advocacy groups like AIM and NIYC. Ex. C, Cook Decl. ¶¶ 6-10. In January 1972, he invited leaders of AIM and NIYC to join NCAI Officers and Area Representatives to identify issues of common interest. Together, the leadership of NCAI, AIM, and NIYC agreed “wholeheartedly” to take on the Washington NFL team name. Ex. C, Cook Decl. ¶ 9-10. The issue was chosen as a priority for the organizations because, among the disparaging names and images used for Native Americans, the Washington team name was “the worst of the worst.” Ex. C, Cook Decl. ¶ 10.
33. On January 18, 1972, Harold Gross of ILIDS, who was also an NCAI volunteer and former in-house counsel, wrote to PFI President Edward Bennett Williams, objecting strenuously to the team’s name:
… I ask you to imagine a hypothetical National Football League, in which the other teams are known as the New York Kikes, the Chicago Polocks, the San Francisco Dagoes, the Detroit Niggers, the Los Angeles Spics, etc. Such a league would shortly be out of business, since the number of people properly outraged by such ethnic slurs would be sizeable enough to force its closing. Yet, the term ‘Redskin’ is no less stereo-type provoking and no less insulting to American Indians than the others which I have used solely to make my point…. Born at a time in our history when the national policy was to seize Indian land and resources, and hunt down Indian people who stood in the way, the term ‘Redskin’ has been perpetuated through such media as western movies and television. Most often, the term is coupled with other derogatory adjectives, as ‘dirty Redskin’ or ‘pesky Redskin’ which is used interchangeably with the word ‘savage’ to portray a misleading and denigrating image of the Native American…. Criss Decl. Ex. 64 at 7-10; Ex. 65; Ex. C, Cook Decl. ¶¶ 11.
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34. This letter resulted in a meeting with Williams in March 1972 attended by NCAI, AIM, and NIYC leaders and other prominent Native American leaders (“Williams meeting”). Criss Decl. Ex. 3 at Request No. 61. The Native American delegation that attended the Williams meeting included: (1) Leon Cook, President of NCAI; (2) Dennis Banks, National Director of AIM; (3) Ron Aguilar, District Representative of NIYC; (3) LaDonna Harris, President of Americans for Indian Opportunity; (4) Richard LaCourse, Washington Bureau of the American Indian Press Association; (5) Laura Wittstock, Editor of Legislative Review for ILIDS; (6) Hany Geigomah, Assistant to the Commissioner of Indian Affairs and the Youth Representative from the Bureau of Indian Affairs; and (7) Ron Petite, AIM. Criss Decl. Ex. 64 at 18:6-19:5; Ex. 66.
35. At the Williams meeting, the Native American leaders argued that the name of the team needed to change. Criss Decl. Ex. 64 at 19-23; Ex. C, Cook Decl. ¶¶ 12-13. The next day, Williams wrote a letter to NFL Commissioner Pete Rozelle to inform him that he met with a “delegation of American Indian leaders who are vigorously objecting to the continued use of the name Redskins.” Criss Decl. Ex. 3 at Request Nos. 73-74; Ex. 64 at 23; Ex. 67. Citing and enclosing Harold Gross’s letter, Williams admitted that the Native American leaders “set[] out their position quite cogently.” Criss Decl. Ex. 67.
36. PFI, of course, did not change its team name. In response to the meeting, however, Williams decided that the team’s cheerleaders would no longer wear Indian-style wigs that stereotyped Native American women and changed language in the team’s fight song, “Hail to the Redskins” because he recognized that some of the lyrics were “mocking.” Criss Decl. Ex. 54; Ex. 3 at Request No. 82; Ex. 46 ; Ex. C, Cook Decl. ¶ 13. (The fight song and cheerleader outfits are discussed further below, at pages 28-29.)
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3. Native American Groups and Individuals Continued to Oppose The Team’s Name And The Term “Redskin” as Offensive.
37. The Williams meeting was not an isolated event. As a 1972 editorial in The Baltimore Sun observed, “for several years, Indian organizations have been trying to get such teams as the Redskins, the Indians, the Braves, etc. to change their names.” Criss Decl. Ex. 55. Since at least 1967, NCAI has worked to challenge “false, derogatory, and harmful” depictions of Native Americans in mass media. Criss Decl. Ex. 68. By 1988, after many years of protests against the name, Chicago Tribune columnist Clarence Page noted that complaints and protests over the team’s name “have become a hardy perennial.” Criss Decl. Ex. 43.
38. In 1971 and 1972, numerous newspaper articles and columns in newspapers reported on the controversy surrounding the Washington NFL team’s name, including the NCAI’s and other Native Americans’ opposition to the team name. These articles appeared in Washington, D.C. local newspapers as well as national newspapers. Criss Decl. Exs. 52, 69-75. One Washington columnist summarized the extensive opposition to the team name: “[P]articularly annoying to the 750,000 American Indians is the word ‘redskin.’ To them, the word is a racist slur, no more acceptable than the word ‘nigger’ is to a black man and no more acceptable than the term ‘white trash’ is among the poor in the south.” Criss Decl. Ex. 30.
39. In 1972, PFI recognized the significance of the Native American opposition to the team name. A November 1972 game program contained a lengthy article discussing Native American opposition to Indian team names generally, and the “Redskins” team name in particular. Criss Decl. Ex. 5.
40. Meanwhile, in 1972, the University of Utah decided to drop the name “Redskins” due to concern that the name disparaged Native Americans. Criss Decl. Ex. 60; see Criss Decl. Exs. 76, 77. Other universities around this time also eliminated Indian-themed team names due
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to Native American opposition, including Dartmouth College and Stanford University. Criss Decl. Ex. 60 at 118-20; Exs. 78-80.
41. One Native American who voiced his opposition to the team name was a young Comanche named Billy Kevin Gover, who wrote to the PFI President in 1972 to make it clear that “Redskins is offensive to [him] and others. You can take a stand that would show you and the team as true believers in civil rights, or you can continue to carry a name that keeps alive a threatening stereotype to Indian people. People, Mr. Williams. We don’t want the Redskins!” Ex. D, Gover Decl. ¶ 6 and Ex. A thereto.
42. Although NCAI President Leon Cook could not convince Mr. Williams to change the team name in 1972, the NCAI’s opposition to the team name has continued ever since. At the 1973 NCAI annual convention in Tulsa, Reuben Snake, the Winnebago Tribal Chairman, addressed the convention and introduced a resolution calling for an end to racism in sports and especially an end to the Washington team’s name. Ex. C, Cook Decl. ¶ 14; Ex. E, Harjo Decl. ¶ 15. The convention with voted unanimously in favor of the report. Ex. C, Cook Decl. ¶ 14; Ex. E, Harjo Decl. ¶ 15.
43. Native American opposition to the team name continued through a PFI ownership change in the 1980s. Suzan Harjo, in her elected role as Executive Director of NCAI from 1984 through 1989, served with a series of NCAI Presidents. Throughout her tenure as NCAI Executive Director, Harjo “reflected and carried out the position of NCAI to oppose the name of the Washington NFL team and to call for its elimination.” Ex. E, Harjo Decl. ¶ 13. During this time, NCAI voiced its opposition to the team name as disparaging “in statements, speeches, telephone calls, interviews, educational outreach, and coalition-building meetings,” Ms. Harjo sent “notes to the team’s then co-owner, Edward Bennett Williams (1984-1985), in an effort to
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renew NCAI’s request to change the team’s name, and to the team’s then primary owner, Jack Kent Cooke (1984-1989), in an attempt to set up a meeting to discuss reasons for Native American opposition to the offensive team name and to encourage him to change it.” Id. at ¶ 16. Cooke never responded to or met with Native Americans, but publicly acknowledged the controversy over the team name by stating to United Press International there was “not a chance in hell” that the name would be changed. Id. While she was Executive Director, the NCAI had over 300 tribal members. Id. at ¶ 13.
44. NCAI’s opposition has continued for decades. As reported in a September 1992 article in The Lakota Times newspaper (a newspaper with primarily Native American readership), “[t]he National Congress of American Indians has been battling against the racist use of Indians as mascots for decades.” Criss Decl. Ex. 81; see Criss Decl. Ex. 60 at 11. The Michigan Civil Rights Commission reported in 1988 that “[t]he National Congress of American Indians, the oldest and largest national Indian group in the U.S. also supports … efforts to have the Washington team’s name changed.” Criss Decl. Ex. 24 at 6.
45. Indeed, past NCAI leaders who have been outspoken in their opposition to the Washington NFL team name include: Vine Deloria (NCAI Executive Director, 1964-1967 and Harjo petitioner); Leon Cook (NCAI President, 1971-73); Raymond Apodaca (Regional VP, 1990-1993); Joseph B. DeLaCruz (NCAI President 1984-1985); Reuben A. Snake, Jr. (NCAI President 1985-1987); John F. Gonzales (NCAI President 1987-1989); Suzan Harjo (NCAI Executive Director, 1984-1989); and gaiashkibos (NCAI President, 1992). Criss Decl. Ex. 62 at 1, 4:12-15, 79:16-20; Ex. 82; Ex. B, Apodaca Decl. ¶ 7; Ex. C, Cook Decl. ¶¶ 6, 15; Ex. E, Harjo Decl. ¶13. JoAnn Chase, Executive Director of NCAI in 1996 testified in Harjo that the issue of the “Washington Redskins” team name is an issue of “national significance, and which
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would be of concern to at least every Indian person I have ever had contact with….” Criss Decl. Ex. 83 at 68:19-21.
46. As the Washington Redskins football team played in the 1988 playoffs and Super Bowl, NCAI supported protest efforts, including a “Change The Name” banner towed by a small plane above the NFC Conference Championship game in January 1988 and protests at the Super Bowl a few weeks later. Criss Decl. Exs. 24, 42, 43, 84. Many Native Americans and others protested the team name during the playoffs and Super Bowl. See Criss Decl. Exs. 38-43, 46, 8486.
47. One influential voice in Indian country speaking out against the team’s name was Tim Giago, editor of The Lakota Times. With a national readership during the 1980s and early 1990s, the Lakota Times (renamed Indian Country Today in 1992) was a leading independent news outlet for critical analysis of Native American issues. Criss Decl. Ex. 60 at 11. Giago’s editorials for the Lakota Times were nationally syndicated in the mainstream press. Id. Mr. Giago wrote multiple editorials in The Lakota Times and elsewhere denouncing the “Washington Redskins.” See, e.g., Criss Decl. Exs. 87-91. In a widely reprinted 1988 editorial, Giago wrote that “Redskins is, and was intended to be a very strong epithet against American Indians,” and stated that it would be no more racist to call the team the “Blackskins” and have fans “paint their faces Black, put on Afros, don colorful dashikis, and cavort around the football field like a bunch of wild savages.” Criss Decl. Exs. 33, 92-95.
48. Native Americans also influenced elected representatives to give voice to their opposition to the team name. In 1988, Senator Rudy Boschwitz of Minnesota, at the urging of his constituents, wrote to PFI’s owner to relay their concern that “Redskins” is “demeaning and offensive to Native Americans.” Criss Decl. Ex. 96. Three years later, Senator Dennis
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DeConcini of Arizona, noting that he had “almost 300,000” Native Americans constituents, wrote the NFL Commissioner to complain that “Redskins” was “culturally insensitive.” Criss Decl. Ex. 97.
49. As in 1988, the team’s appearance in the 1992 playoffs spurred Native American protests. At the 1992 Super Bowl in Minnesota, Native American organizations led large protests of the team name. Among the speakers at these protests was NCAI President known by his Native American name “gaiashkibos,” AIM leaders, and Mr. Giago. Criss Decl. Exs. 82, 9899. Around the same time, The Lakota Times reported that “Indian Tribes and organizations,” had made “vociferous calls” for a change in the team name, and that “[m]ost Indian groups consider the team moniker racist and demeaning,” specifically pointing out NCAI’s opposition. Criss Decl. Ex. 100.
50. In 1993, Senator Ben Nighthorse Campbell, then one of the country’s most prominent Native Americans, sought to force PFI to change the name by introducing legislation that would have prevented PFI from using U.S. Department of Interior land for a new stadium unless the Team name were changed. Criss Decl. Exs. 101-107.
51. Also in 1993, the NCAI adopted two formal resolutions declaring the organization’s continued opposition to Team name on grounds that “redskin” disparages Native Americans. In January 1993, the NCAI, acting through its Executive Council, adopted a resolution supporting the Harjo cancellation petition and declaring the organization’s position that “redskins” has always been and continues to be a slur:
[T]he term REDSKINS is not and has never been one of honor or respect, but instead it has always been and continues to be a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging and racist designation for Native American[s].
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Criss Decl. Ex. 83 at 50:18-51:20; Ex. 108. The NCAI further declared that the registered marks at issue in this petition are “offensive, disparaging . . . and damaging” to Native Americans. Criss Decl. Ex. 108.
52. Eleven months later, in December 1993, the NCAI General Assembly adopted a separate resolution objecting to the “Washington Redskins” team name. The resolution expressed support for the bill introduced by Senator Campbell to prevent the use of federal land for a new stadium unless the Team changed its name. Criss Decl. Ex. 83 at 39:7-40:3, 46:2148:7; Ex. 109.
53. At times and over time, protest efforts against the term “Redskins” have borne fruit. In 1988, sixteen years after the University of Utah dropped “Redskins,” Southern Nazarene College did so as well. Criss Decl. Ex. 60 at 11. In addition, in 1991-93, following objections from Native Americans, another university and two school systems dropped “Redskins” – Miami University in Ohio, the Grand Forks, North Dakota, and the Naperville, Illinois, high schools. Criss Decl. Exs. 110-112. Altogether, eleven high school districts dropped “Redskins” as a team name in the 1990s and another 18 have done so since 2000. Criss Decl. Ex. 60 at 20.
F. A 1996 Survey Showed That A Majority Of Native Americans Found The Term “Redskins” To Be Offensive To Themselves Or Others.
54. A poll designed and supervised by Dr. Ivan Ross, an expert retained in Harjo, showed that a majority of Native Americans found the term “redskins” offensive.9
9 Criss Decl. Ex. 113 at 19:21-20:18. Dr. Ross is deceased. As of 1996, when he performed his work, Dr. Ross was President of Ross Research, a former Professor of Marketing and Adjunct Professor of Psychology with the Carlson School of Management of the University of Minnesota for 27 years, and a Fellow with the Society for Consumer Psychology, the American Psychological Association, and the American Psychological Society. He had designed and conducted numerous studies for academic research, corporate clients, and litigated disputes;
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55. In 1996, Dr. Ross conducted a survey of attitudes regarding various different words associated with Native Americans, including “redskin.” Criss Decl. Exs. 114-115. The survey tabulated responses from the general American public and from American Indians. Criss Decl. Ex. 115. For the Native American portion of the survey, Dr. Ross created a stratified probability sample by drawing from the 20 states with the highest Native American populations, selecting counties and census tracks within those states to arrive at a set of areas which would fairly represent both rural and urban areas, and using a randomized telephone draw to select the individual respondents. Criss Decl. Ex. 113 at 15:11-18:20. Dr. Ross testified to his expert opinion that the methodology used for the survey of Native Americans resulted in responses that “fairly represented” the views of the Native American population of the United States, and that the methods are accepted within his field. Id.
56. As a way to address any reluctance by respondents to reveal their personal feelings about the terms surveyed, Dr. Ross had respondents answer not only whether they would personally be offended by the terms but also whether they believed other people would be offended. Criss Decl. Ex. 116 at 77:8-79:13; Ex. 117 at 30:10-32:20, 37:1-38:23, 56:1-57:16, 110:4-113:7. This technique is an accepted way to illuminate a respondent’s true feelings about a sensitive issue. Criss Decl. Ex. 117 at 30:10-32:22.
57. According to the results of the survey, 36.6 percent of American Indians responded that they would be personally offended by the use of the word “redskin,” and 52.5 percent perceived that the word “redskin” would “offend others.” In total, 60.3 percent of Native Americans perceived the term “redskin” to be either offensive to themselves or to others. Criss
consulted for multiple U.S. government agencies; and been qualified as an expert in survey design on numerous occasions in federal court. Id. at 4:19-9:20.
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Decl. Exs. 114-115. Based on these results, Dr. Ross concluded that approximately 60 percent of Native Americans consider the term “redskin” offensive. Criss Decl. Ex. 115.
G. PFI Has Used The “Redskins” Team Name And The Marks In Ways That Mock Native Americans.
58. PFI has used its trademarks in ways that make light of – or outright mock – Native American people and cultures, illustrated by halftime “entertainment,” the team’s fight songs, the band’s uniforms, and the former costumes used by the cheerleaders.
59. The most extreme example may be a video clip (produced by PFI in Harjo discovery) of half-time “entertainment.” The clip features an almost-naked “Indian” on a giant drum at midfield dancing violently in a mocking mimicry of Native Americans, and another “Indian” dancing with a horse. Criss Decl. Ex. 118 at 2:48 to 2:55. A written account of halftime “entertainment” states that “[b]etween the ‘halves,’ Indian bands march on the field and present all forms of pageantry, which may not make much sense but is highly diverting to the crowd. Mr. Marshall [the former owner] also has a swing band in a giant wigwam up over the stands, all in their customary war feathers, smoke emanating from this elevated tepee as [certain star players] and all the other ‘braves’ of the local professional entry go through their act on the field.” Criss Decl. Ex. 119.
60. The team’s original fight song included these lyrics that stereotyped and mocked the speech of Native Americans (and urged the team to fight for “old Dixie.):
Hail to the Redskins, Hail Vic-to-ry! Braves on the warpath, Fight for old Dixie. Scalp ‘em swamp ‘em, We will take ‘em big score. Read ‘em, Weep ‘em, Touch-down we want heap more.
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See Criss Decl. Ex. 3 at Request Nos. 75, 76; Ex. 120. As noted, PFI changed the lyrics in 1972 in response to opposition by Native American leaders. See ¶ 37, above. The fight song has continued to refer to the team as “braves on the warpath,” however. Criss Decl. Ex. 121.
61. The outfits of the team’s cheerleaders also mocked Native Americans. The costumes of the team’s cheerleaders were designed to allude to purported Native American attire, jewelry, or hairstyles. Criss Decl. Ex. 3 at Request No. 8. The cheerleaders used to wear stereotyped black braided-hair wigs and Indian-themed costumes as they entertain the crowds wearing faux-Indian outfits. Criss Decl. Exs. 122-130. From 1962 until as late as 1979, the cheerleading uniform included an Indian dress and Indian beaded headband. Criss Decl. Ex. 131 at No. 18. The cheerleaders stopped wearing the black-braided hair wigs in 1972, at the same time the fight song lyrics changed, also due to the meeting with the American Indian leaders. Criss Decl. Ex. 54.
62. The “Redskins marching band” also makes light of Native American culture; the band members march around wearing Indian headdresses full of feathers and play Indian-themed music (evoking stereotypes of tribal drumbeat war music). Criss Decl. Ex. 118 at 0:51 to 1:30; Ex. 130, 132-137. PFI gives the band permission to perform during games. Criss Decl. Ex. 3 at Request No. 178 (for at least the period between 1967 and 1990).
63. On different occasions, team players and PFI administrative personnel dressed up like Indians. Criss Decl. Exs. 138-146. Many covers of game programs feature caricatures of buffoonish-looking Native Americans. Criss Decl. Exs.147-149. PFI even has a mocking “cigar store” Indian in the PFI corporate offices. Criss Decl. Ex. 150 at 126:21-127:18.
64. Numerous news articles and published advertisements mock Native American culture, such as by reporting that the “Washington Redskins” had “scalped” or “ambushed”
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another team (or vice-versa), were “on the warpath,” were “brewing special Kickapoo Juice” for their opponents, or that they had been “massacred” by another team (sometimes to avenge the defeat of General Custer). Criss Decl. Exs. 120; 140; 151-270. Some articles use pidgin English or otherwise mock or stereotype Native American manner of speech. Criss Decl. Exs. 120; 140; 170; 176; 180-81; 251; 254; 256; 262; 267. Newspapers also published mocking caricatures of Native Americans in connection with the team and referred to the former team owner as the “Big Chief” or “Great White Father.” Criss Decl. Exs. 30; 176; 226; 254-271. Furthermore, the fans of the team frequently dress up like stereotyped Native Americans, with Indian headdresses and face paint, and shout war whoops. Criss Decl. Exs. 232-247; 272-279. PFI has encouraged this behavior; it has even rewarded one fan with free tickets to games so that he would continue to attend in Indian costume as “Chief Z.” Criss Decl. Ex. 280 at 118:21-119:10.
LEGAL STANDARD “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Summary judgment is appropriate when ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.’” Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011) (quoting Fed. R. Civ. P. 56(c)). The Court should view “the facts and the reasonable inferences therefrom in the light most favorable to the nonmoving party,” id., while requiring the movant to “go beyond the ‘mere existence of a scintilla of evidence.’” Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
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ARGUMENT I. THE TTAB DID NOT ERR IN FINDING THAT THE MARKS CONTAIN
MATTER THAT “MAY DISPARAGE” NATIVE AMERICANS OR THAT BRING THEM INTO CONTEMPT OR DISREPUTE. THEREFORE, DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON COUNTS 1 AND 2. Plaintiff contends in Count 1 that the TTAB erred in ruling that its trademarks contain matter that “may disparage” Native Americans and contends in Count 2 that the TTAB erred in ruling that its trademarks contain matter that bring Native Americans into “contempt or disrepute.” See [Dkt. 1] ¶¶ 130-131; 15 U.S.C. § 1052(a). As explained below, the TTAB did not err in finding that Plaintiff’s trademarks were subject to cancellation under 15 U.S.C. § 1052(a). Rather, the TTAB’s ruling is consistent with decisions in a line of ethnic disparagement cases. See In re Geller, 751 F.3d 1355, 1360-61 (Fed. Cir. 2014), cert. denied, No. 14-175, 2015 WL 132962, (U.S. Jan. 12, 2015) (finding “Stop The Islamisation of America” may disparage Muslim Americans); In re Tam, No. 85472044, 2013 WL 5498164, at *7 (T.T.A.B. 2013) (finding “slants” may disparage Asian Americans), on appeal, No. 2014-1203 (Fed. Cir.); In re Lebanese Arak Corp., No. 77072261, 2010 WL 766488, at *4 (T.T.A.B. 2010) (finding “Khoran” when used with wine may disparage Muslims); In re Heeb Media, LLC, No. 78558043, 2008 WL 5065114, at *1 (T.T.A.B. 2008) (finding “heeb” may disparage Jews); In re Squaw Valley Dev. Corp., Nos. 76511144, 76511145, 2006 WL 1546500, at *10 (T.T.A.B. 2006) (finding “squaw,” in context of apparel and retail store services may disparage Native Americans).
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A. There Is No Genuine Issue Of Material Fact That The Trademarks Contain Matter That “May Disparage.” 1. Section 2(a) Does Not Require Proof of Actual Disparagement or Bad Intent, But Rather Only That the Term “May” Disparage the Target Group.
Section 2(a) of the Lanham Act provides that a trademark is not eligible for registration if it consists of or comprises “matter which may disparage” persons. 15 U.S.C. § 1052(a) (emphasis added). Therefore, to cancel a trademark registration, a petitioner need only demonstrate that the mark contains matter that may disparage, not actual disparagement.
Congress’s insertion of “may” before “disparage” was deliberate. To refuse registration of an immoral, deceptive, or scandalous mark, Section 2(a) requires that the mark contain matter that actually is “immoral, deceptive, or scandalous.” The contrast is plain:
[Registration is to be refused to a trademark that:] Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute…. 15 U.S.C. § 1052(a) (emphasis added). See in re Lebanese Arak Corp., 2010 WL 766488 at *2 (“The structure of Section 2(a), with various refusals and, therefore, different tests, interwoven into its various parts, is the result of its legislative development.”). The drafting history further demonstrates that Congress made a deliberate choice in inserting “may” before disparage. Initial House and Senate bills provided that a trademark is ineligible for registration if it “tends to” disparage.10 In 1942, the House Committee on Patents
10 Criss Decl. Ex. 281, Hearings before the Subcomm. on Trademarks Comm. on Patents, House of Representatives, 76th Cong. 1st Sess. (March 28, 29 and 30, 1939) at 1 (Section 2(a) of bill contains “tends to disparage” standard); Criss Decl. Ex. 282, Hearings before the Subcomm. on Trademarks Comm, on Patents, House of Representatives, 77th Cong., 1st Sess. (Nov. 4, 12, 13 and 14, 1941) at 1-2 (Section 2(a) of H.R. 102, which is “identical” to S. 895, contains a “tends to disparage” standard) & at 15 (by contrast, H.R. 5461 contains “may disparage” standard).
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marked up a Senate bill and substituted “may” in place of “tends to” in front of “disparage.”11 Subsequent bills12 and the enacted legislation contained the “may disparage” standard instead of “tends to disparage.” 15 U.S.C. § 1052(a); see Doe v. Chao, 540 U.S. 614, 622 (2004) (relying on drafting history to interpret statute).
In addition, intent to disparage is not required for a trademark to be ineligible for registration under 15 U.S.C. § 1052(a). See In re Lebanese Arak Corp., 2010 WL 766488 at *8 (“intent [to disparage] is not necessary in order to find that the mark does, in fact, disparage [Muslims] or their beliefs”); In re Heeb Media, 2008 WL 5065114 at *8 (“good intentions” do not save a mark that may disparage an ethnic group); In re Tam, 2013 WL 5498164, at *5 (same).
2. The Record Evidence Clearly Demonstrates That the Term “Redskins” May Disparage Native Americans.
The TTAB has established a two-part test to determine whether a trademark contains matter that “may disparage” a group:
1. What is the meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the goods and services identified in the registrations?
2. Is the meaning of the marks one that may disparage the referenced group [here, Native Americans]?
Blackhorse, 2014 WL 2756516, at *4; In re Heeb Media, LLC, 2008 WL 5065114, at *4 (T.T.A.B. 2008). The TTAB has held that both questions are to be answered as of the date of the
11 Criss Decl. Ex. 283, H. Rep. No. 2283 (77th Cong. 2d Sess.) (June 25, 1942) at 2 (recommending passage of S. 895 with certain amendments, including: “strike out ‘tends to’ and insert in lieu ‘may’” before “disparage”). 12 See, e.g., Criss Decl. Ex. 284, Hearings before the Comm. on Patents, House of Representatives, 78th Cong., 1st Sess. (Apr. 7-8, 1943) at 2; Criss Decl. Ex. 285, Hearings before the Subcomm. of the Comm. on Patents, 78th Cong., 2d Sess. (Nov. 15-16, 1944) at 2.
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registration of the involved marks. Blackhorse, 2014 WL 2756516, at *4. Courts have employed the TTAB’s two-part test where the parties did not argue for another interpretation. In re Geller, 751 F.3d 1355 at 1358, and Harjo v. Pro-Football, Inc., 284 F. Supp. 2d 96, 125 (D.D.C. 2003). Our research has found no other federal court decision interpreting the “may disparage” prong of 15 U.S.C. § 1052(a).
a. “Redskins,” as Used in the Marks, Refers to Native Americans. As to the first question in the two-part test, there can be no dispute that the meaning of the “matter in question,” i.e., the term “redskins” or a derivation of “redskins” in each of the trademarks, refers to Native Americans. PFI admits that “redskin” alludes to Native Americans, that two of the marks contain an image of a man in profile that alludes to Native Americans, that a spear in one of the marks alludes to Native Americans, and that the Team’s football helmets contain an image of a Native American in profile. Criss Decl. Ex. 3 at 6-7. The team’s band wears Indian headdresses, the cheerleaders have worn Indian-themed outfits, and PFI’s publications have used Indian imagery. Criss Decl. Exs. 118; 124-143. Accordingly, as the TTAB stated, “the evidence overwhelmingly support a determination that the term REDSKINS as it appears in the marks retains the meaning Native American.” Blackhorse, 2014 WL 2756516, at *8; Harjo, 1999 WL 375907, at *40 (stating that it would be “factually incomplete and disingenuous” to ignore the substantial evidence of Native American imagery used by [PFI], as well as by the media and [PFI’s] fans, in connection with [PFI’s] football team and entertainment services). The district court in Harjo agreed that the “meaning of the matter in question” refers to Native Americans. See Harjo, 284 F. Supp. 2d at 126-27.
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b. The Term “Redskins” Is One That May Disparage Native Americans.
In deciding the second question – is the meaning of the marks one that “may disparage” the referenced group – the TTAB looks to the views of the referenced group, which are “‘reasonably determined by the views of a substantial composite thereof.’” Blackhorse, 2014 WL 2756516, at *5. Although “substantial composite” is an expression that the TTAB uses in Section 2(a) cases, the term does not come from the statute and does not alter the statutory directive that marks with matter that “may disparage” persons are not eligible for registration.
In using the term “substantial composite,” the TTAB has repeatedly explained that a minority of the referenced group may constitute a substantial composite. See In re Tam, 2013 WL 5498164, at *4 (T.T.A.B. 2013); In re: Heeb Media, 2008 WL 5065114, at *8; In re Squaw Valley Dev. Corp., 2006 WL 1546500, at *18 n.12; see also Ritchie v. Simpson, 170 F.3d 1092, 1094 (Fed Cir. 1999) (To determine “[w]hether a mark comprises immoral or scandalous matter, …the relevant viewpoint is not necessarily that of a majority of the general public, but of a ‘substantial composite’”); In re McGinley, 660 F.2d 481, 485 (C.C.P.A. 1981) (substantial composite of general public, relevant to evaluating whether a mark contains “scandalous” matter, may be a minority of the general public).
Furthermore, the TTAB has explained that under the “substantial composite” inquiry, evidence of the general public’s perception of a term, such as dictionary evidence, can “serve to support a finding that the referenced group finds the term to be disparaging.” Blackhorse, 2014 WL 2757516, at *4 n.15; see also In re Tam, 2013 WL 5498164, at *1-2, *7 & n.3 (relying in part on dictionaries to find that “slants” is viewed as disparaging by a substantial composite of the referenced group); In re Heeb Media, 2008 WL 5065114, at *1 (same as to “heeb”); In re Squaw Valley Dev. Co., 2006 WL 1546500, at *13 (same, as to “squaw”). It is common sense
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that an ethnic slur will be viewed as disparaging by a substantial composite of the referenced group. See Blackhorse, 2014 WL 2757516, at *9 n.43 (“There is no case in our review where a term found to be a racial slur in general was found not to be disparaging when used in the context of specific services”).
Here, there can be no dispute that the trademarks in question contain matter that “may disparage” Native Americans, as determined by the views of a substantial composite or otherwise. Dictionaries and reference sources identify “redskin” as a disparaging term. See supra at ¶¶ 3-13. A 1962 scholarly article observed that “almost all the students [at Haskell Institute] resent being called redskins.” Supra at ¶ 24. The evidence of usage, as shown by the analytic work of Dr. Geoffrey Nunberg, reveals the negative connotations of the term. See supra at ¶¶ 13-20. The NCAI, and other Native American organizations such as the AIM and the NIYC, and prominent Native American individuals like Suzan Shown Harjo, Kevin Gover, Leon Cook, Raymond Apodaca, other former NCAI Presidents, and Tim Giago, have consistently objected to the Washington NFL team’s name from the 1960s to the 1970s. See supra at ¶¶ 2354. Native American leaders met with the PFI President in 1972 to demand a change to the Team name and tried to meet with PFI in the 1980s to raise the issue again with new PFI ownership, and Native Americans publicly protested in 1988 and 1992 when the team played in the Super Bowl. See supra at ¶¶ 27-37, 47. Even PFI’s expert lexicographer admitted that “redskin” “certainly may be offensive.” Supra at ¶¶ 21-22. And, as a result of the disparaging nature of the term and Native American concerns, the University of Utah in 1972, and other schools and universities subsequently have dropped “Redskins” as their team names. Supra at 40-41.
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These undisputed facts are sufficient to demonstrate that the marks in question contain matter that “may disparage” Native Americans. See In re Geller, 751 F.3d at 1358- 59 (citing dictionaries as among evidence that “Stop The Islamisation of America” may disparage); In re Tam, 2013 WL 5498164, at *7 (citing dictionaries, reference works, and the position of the Asian American Youth Leadership Council as among evidence that “slants” may disparage), on appeal, No. 2014-1203 (Fed. Cir.); In re Heeb Media, LLC, 2008 WL 5065114, at *1-2 (citing dictionaries, statement of the associate director of the Anti-Defamation League, statements by a professor and radio talk show host, and a newspaper editorial as evidence that “heeb” may disparage); In re Squaw Valley Dev. Corp., 2006 WL 1546500, at *10-13 (citing statements of Native American groups and individuals, dictionary definitions, and examples of state governments dropping “squaw” as the name of geographic locations, as evidence that “squaw” may disparage).
Accordingly, because there is no dispute that the trademarks contain matter that “may disparage” Native Americans, Defendants are entitled to summary judgment on Count 1.
B. There Is No Genuine Issue Of Material Fact That The Trademarks Contain Matter That Bring Native Americans Into “Contempt Or Disrepute.”
The TTAB also correctly found that the marks in question contain matter that brings Native Americans into “contempt or disrepute,” having previously held that the legal test is indistinguishable from the legal test for determining whether a mark may disparage. Blackhorse, 2014 WL 2577516, at *7 n.33. The parties did not disagree with this proposition before the TTAB, and Defendants are unaware of any authority that interprets the “contempt or disrepute” prong separately from the “may disparage” prong.
Under the plain meaning of “contempt or disrepute,” and under the legal standard for “may disparage,” discussed above, Defendants are entitled to summary judgment on Count 2.
36

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There is no genuine issue of disputed fact that the marks contain matter that brings Native Americans into contempt or disrepute. II. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON COUNT 7.
In Count 7, PFI contends that the TTAB erred in failing to dismiss the petition to cancel under the equitable doctrine of laches. In fact, the TTAB properly rejected the laches argument and Defendants are entitled to summary judgment on Count 7.
A. Laches Does Not Apply Because Of The Public Interests At Stake. The TTAB properly rejected PFI’s laches defense because “courts and the [TTAB] have routinely held that where there is a broader public policy concern at issue, the equitable defense of laches does not apply.” Blackhorse, 2014 WL 2757516, at *31 (citing cases). Similarly, the Fourth Circuit has held that the public interest is a factor that weighs against application of laches. See Resorts of Pinehurst, Inc. v. Pinehurst Nat’l Corp., 148 F.3d 417, 423 (4th Cir. 1998); Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 461-62 (4th Cir. 1996).13 Here, as the TTAB explained, “it cannot be disputed that there exists a broader public interest….” Blackhorse, 2014 WL 2757516, at *32. “[T]here is an overriding public interest in removing from the register marks that are disparaging to a segment of the population beyond the individual petitioners.” Id. Because of the public interests at stake, the TTAB did not err in rejecting PFI’s laches argument, and Defendants are entitled to summary judgment on Count 7. B. Defendants Did Not Unreasonably Delay In Petitioning The TTAB. In order to prevail in its laches defense, PFI must prove that, after turning age 18, each Defendant unreasonably delayed in petitioning the TTAB. Brittingham v. Jenkins, 914 F.2d 447,
13 In Harjo, the D.C. Circuit did not consider whether or not laches applies in cases raising broader public interest concerns. See Harjo v. Pro-Football, Inc., 565 F.3d 880 (D.C. Cir. 2009); Harjo v. Pro-Football, Inc. 415 F.3d 44 (D.C. Cir. 2005).
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456 (4th Cir. 1990); Pro-Football, Inc. v. Harjo, 415 F.3d 44, 48-49 (D.C. Cir. 2005) (holding that laches does not begin to run until party reaches age of majority).
Here, each of the Defendants was under age 18 in April 1999 when the TTAB granted the Harjo petition to cancel. See [Dkt. 51] at 2; [Dkt. 1] ¶ 17. The Harjo proceedings in federal court lasted until 2009. [Dkt. 1] ¶¶ 25-26. As the TTAB reasoned, the entire period that Harjo was pending “provided excusable delay.” Blackhorse, 2014 WL 2757516, at *33. Defendants filed their petition with the TTAB in 2006, during this period of excusable delay. It would be nonsensical and wasteful to insist that Defendants needed to file their petition before Harjo was concluded. Any other rule would invite the filing of excessive and unnecessary petitions.
Furthermore, Courtney Tsotigh was 18 years old and Ms. Pappan was 19 years, 3 months old. It is indisputable that these two young adults did not unreasonably delay as they were “entitled to assess the situation” for a reasonable period of time as adults before deciding whether to file a petition. Blackhorse, 2014 WL 2757516, at *33.
C. PFI Can Not Prove Prejudice From Any Delay. PFI’s laches defense also fails for the separate reason that PFI cannot demonstrate material prejudice resulting from any delay by Defendants in filing their petition. See Ray Commc'ns, Inc. v. Clear Channel Commc'ns, Inc., 673 F.3d 294, 305 (4th Cir. 2012). Mere continued expenditure to promote a challenged name is not sufficient to show economic prejudice. See id.; Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 615 (7th Cir. 1965). PFI has known since long before the Defendants reached the age of majority that its trademark registrations were vulnerable to cancellation, since the TTAB granted the Harjo cancellation petition in 1999. Any money spent to promote the trademarks after the TTAB ruled in Harjo was expended at PFI’s peril. “‘[O]ne who uses debatable marks does so at the peril that his mark may not be entitled to registration.’” In re McGinley, 660 F.2d 481, 485, 211 U.S.P.Q. 668, 672
38

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n.7 (C.C.P.A. 1981). Accordingly, PFI cannot show any material prejudice arising from any delay by Defendants in filing their TTAB petition.
CONCLUSION For the foregoing reasons, Defendants’ Motion for Partial Summary Judgment on Counts 1, 2, and 7 should be granted.

Dated: February 26, 2015.

Respectfully submitted,
/s/ Jeffrey J. Lopez Jesse A. Witten (pro hac vice) Jeffrey J. Lopez (VA Bar No. 51058) Adam Scott Kunz (VA Bar No. 84073) Tore T. DeBella (VA Bar No. 82037) Jennifer T. Criss (VA Bar No. 86143) DRINKER BIDDLE & REATH LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 Telephone: (202) 842-8800 Facsimile: (202) 842-8465 Jesse.Witten@dbr.com Jeffrey.Lopez@dbr.com Adam.Kunz@dbr.com Tore.DeBella@dbr.com Jennifer.Criss@dbr.com
Counsel for Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh

39

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CERTIFICATE OF SERVICE I hereby certify that on this 26th day of February, 2015, the foregoing pleading or paper was filed and served electronically by the Court’s CM/ECF system upon all registered users in this action:

/s/ Jeffrey J. Lopez

Jeffrey J. Lopez

DRINKER BIDDLE & REATH LLP

1500 K Street, N.W., Suite 1100

Washington, D.C. 20005-1209

Telephone: (202) 842-8800

Facsimile: (202) 842-8465

Email:

Jeffrey.Lopez@dbr.com

Counsel for Defendants Amanda Blackhorse,

Marcus Briggs-Cloud, Phillip Gover, Jillian

Pappan and Courtney Tsotigh

Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 1 of 50 PageID# 1221
EXHIBIT A

Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 2 of 50 PageID# 1222

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

PRO-FOOTBALL, INC.,
Plaintiff, v.
AMANDA BLACKHORSE, MARCUS BRIGGS-CLOUD, PHILLIP GOVER, JILLIAN PAPPAN and COURTNEY TSOTIGH,
Defendants.

Civil Action No. 1-14-cv-1043-GBL-IDD

DECLARATION OF JENNIFER T. CRISS IN SUPPORT OF DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNTS 1, 2 AND 7
I, JENNIFER T. CRISS, declare: 1. I am an associate attorney in the Washington, DC, office of Drinker Biddle &
Reath LLP, counsel for Defendants in the above-captioned proceeding. From July 2008 to September 2013 I was a paralegal for the firm and assisted with the Blackhorse (T.T.A.B.) proceeding. I became an associate at the firm in September 2013. I submit this Declaration in support of Defendants’ Motion for Partial Summary Judgment on Counts 1, 2, and 7 (the “Motion”). I have personal knowledge of the facts set forth herein and would testify under oath consistent with this Declaration if called upon to do so.
2. On November 12, 2014, this Court ordered that the record of the cancellation proceeding before the Trademark Trial and Appeal Board of the United States Patent and Trademark Office (“PTO”) in Blackhorse v. Pro-Football, Inc., Cancellation No. 92/046,185

Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 3 of 50 PageID# 1223
(the “TTAB Record”) “be assembled and transmitted to the Court forthwith and made part of the record of and admitted in these proceedings.” (Dkt. 37 at 1).
3. On February 4, 2015, a representative of the PTO sent a notice to the Court, copying counsel for the parties, submitting to the Court a certified version of the TTAB Record in both hard copy and CD forms. A true and correct copy of that letter is attached hereto as Exhibit 1.
4. The PTO numbered the top of each page of the certified record with the designations A00001–A14157. Each exhibit herein drawn from the TTAB record is listed with the corresponding PTO record designation.
5. During the TTAB proceeding, the parties stipulated that with limited exceptions they would waive all non-relevance objections to the admission of the record from Harjo et al v.Pro-Football, Inc., No. 21,069 (TTAB). A true and correct copy of this stipulation is attached hereto as Exhibit 2.
6. Exhibits herein that were not part of the TTAB record as transmitted to this Court are additional exhibits that Defendants are relying upon pursuant to 15 U.S.C. 1071(b)(1), which permits the introduction of additional evidence.
7. Attached hereto as Exhibit 3 is a true and correct copy of Pro-Football, Inc.’s Objections and Responses to Defendants’ First Set of Requests For Admission to Pro-Football, Inc., served electronically on Defendants on February 13, 2015.
8. Attached hereto as Exhibit 4 is a true and correct copy of “Boston Braves Grid Men Become ‘Redskins,’” The Hartford Courant (July 6, 1933).
9. Attached hereto as Exhibit 5 is a true and correct copy of excerpts from the Redskins Edition of Pro! Magazine (Nov. 20, 1972), introduced into the Blackhorse record
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before the T.T.A.B. as BLA-TTAB-01375-78 and transmitted to this Court as A1736-39. Attached is a more legible copy of excerpts from same edition of Pro! Magazine, with additional pages included for context, as produced by Pro-Football, Inc. (“PFI”) in response to a document request. This copy has been Bates numbered PFI-EDVA-00381-512.
10. Attached hereto as Exhibit 6 is a true and correct copy of an excerpt from Webster’s Collegiate Dictionary (1898), bearing Bates stamp EDVA-DEF-0002574-81.
11. Attached hereto as Exhibit 7 is a true and correct copy of an excerpt from The Random House Dictionary of the English Language (1966), introduced into the Blackhorse record before the T.T.A.B. as BLA-TTAB-00163-65 and transmitted to this Court as A504-06.
12. Attached hereto as Exhibit 8 is a true and correct copy of an excerpt from the Thorndike-Barnhart Intermediate Dictionary (1974), bearing Bates stamp EDVA-DEF-0002796805.
13. Attached hereto as Exhibit 9 is a true and correct copy of an excerpt from the Oxford American Dictionary (1980), bearing Bates stamp EDVA-DEF-0002981-92.
14. Attached hereto as Exhibit 10 is a true and correct copy of an excerpt from The American Heritage Dictionary of the English Language, 3rd Edition (1982).
15. Attached hereto as Exhibit 11 is a true and correct copy of an excerpt from the Webster’s Ninth New Collegiate Dictionary (1983).
16. Attached hereto as Exhibit 12 is a true and correct copy of excerpts from the deposition of David K. Barnhart on December 19, 1996.
17. Attached hereto as Exhibit 13 is a true and correct copy of the Report “Linguistic Analysis of the Term Redskin,” introduced as into the Blackhorse record before the T.T.A.B. as Exhibit 3 to his Deposition on December 19, 1996 and transmitted to this Court as A10505-531.
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18. Attached hereto as Exhibit 14 is a true and correct copy of excerpts from the deposition of David K. Barnhart on April 9, 1997.
19. Attached hereto as Exhibit 15 is a true and correct copy of excerpts from the deposition of Dr. Geoffrey Nunberg on December 18, 2014.
20. Attached hereto as Exhibit 16 is a true and correct copy of the Report of Geoffrey Nunberg, introduced as Exhibit 3 to his Deposition on December 18, 2014.
21. Attached hereto as Exhibit 56 is a true and correct copy of Dr. Nunberg’s curriculum vitae, introduced with his Report as Exhibit 3 to his Deposition on December 18, 2014.
22. Attached hereto as Exhibit 57 is a true and correct copy of Corrections to Page 10 of Dr. Nunberg’s Report, introduced as Exhibit 12 to his Deposition on December 18, 2014.
23. Attached hereto as Exhibit 58 is a true and correct copy of excerpts from the deposition of Dr. Geoffrey Nunberg on February 18, 1997.
24. Attached hereto as Exhibit 17 is a true and correct copy of excerpts from the deposition of Ronald Butters on January 22, 2015.
25. Attached hereto as Exhibit 18 is a true and correct copy of E. Palmore, Ethnophaulisms and Ethnocentrism, American Journal of Sociology (Jan. 1962), introduced as Exhibit 7 to the deposition of Ronald Butters on January 22, 2015.
26. Attached hereto as Exhibit 19 is a true and correct copy of excerpts from Irving Lewis Allen, Unkind Words: Ethnic Labeling from Redskin to WASP (1990), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01908-82 and transmitted to this Court as A2308-82.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 6 of 50 PageID# 1226
27. Attached hereto as Exhibit 20 is a true and correct copy of excerpts from The Encyclopedia Britannica (11th ed. 1910), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00128-60 and transmitted to this Court as A469-501.
28. Attached hereto as Exhibit 21 is a true and correct copy of Alden Vaughan, From White Man to Redskin: Changing Anglo-American Perceptions of the American Indian, American Historical Review (October 1982), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01831-67 and transmitted to this Court as A2228-64.
29. Attached hereto as Exhibit 22 is a true and correct copy of Haig Bosmajian, Defining the ‘American Indian’: A Case Study in the Language of Suppression in Exploring Language (1983), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB01884-88 and transmitted to this Court as A2281-85.
30. Attached hereto as Exhibit 23 is a true and correct copy of Robert Keller, Hostile Language: Bias in Historical Writing About American Indian Resistance, Journal of American Culture (Winter 1986), introduced into the Blackhorse record before the T.T.A.B. at BLATTAB-01890-905 and transmitted to this Court as A2287-302.
31. Attached hereto as Exhibit 24 is a true and correct copy excerpts from the Michigan Civil Rights Commission Report, “Use of Nicknames, Logos and Mascots Depicting Native American People in Michigan Education Institutions” (1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-02213-310 and transmitted to this Court as A2619-716.
32. Attached hereto as Exhibit 25 is a true and correct copy of an excerpt from Jay Coakley, Sport in Society: Issues and Controversies (1990), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-02553-56 and transmitted to this Court as A2965-68.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 7 of 50 PageID# 1227
33. Attached hereto as Exhibit 26 is a true and correct copy of Robert Jensen, Banning ‘Redskins’ from the Sports Page: The Ethics and Politics of Native American Nicknames, Journal of Mass Media Ethics (1994), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-02042-46 and transmitted to this Court as A2445-49.
34. Attached hereto as Exhibit 27 is a true and correct copy of Philip Rahv, Paleface and Redskin, excerpted from Image and Idea: Twenty Essays on Literary Themes by Philip Rahv (1957), introduced by PFI into the Blackhorse record before the T.T.A.B. and transmitted to this Court at A11344-50.
35. Attached hereto as Exhibit 28 is a true and correct copy of Paul Kaplan, Do We Defame Native Americans?, Washington Star (Aug. 13, 1972), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00826-27 and transmitted to this Court as A1157-58. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF0000057-58.
36. Attached hereto as Exhibit 29 is a true and correct copy of Tom Quinn, Indians are starting to fight back, Washington Daily News (Jan. 28, 1972), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00828 and transmitted to this Court as A1159. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000059.
37. Attached hereto as Exhibit 30 is a true and correct copy of Russ White, No Reservations - Williams’ Answer: What’s In A Name?, Evening Star (Jan. 27, 1972), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00830 and transmitted to this Court as A1161. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000061.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 8 of 50 PageID# 1228
38. Attached hereto as Exhibit 31 is a true and correct copy of Tom Quinn, Redskins Face Suit and The Quest for Dignity, Washington Daily News (Feb. 18, 1972), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00831 and transmitted to this Court as A1162. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000059.
39. Attached hereto as Exhibit 32 is a true and correct copy of Tom Quinn, What’s in a nickname? In Washington, plenty of trouble, possibilities, Washington Daily News (Feb. 29, 1972), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00832 and transmitted to this Court as A1163. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000063.
40. Attached hereto as Exhibit 33 is a true and correct copy of Tim Giago, If the name Redskins doesn’t bother team owner, how about Blackskins?, Sioux Falls Argus Leader (Feb. 21, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00843 and transmitted to this Court as A1174.
41. Attached hereto as Exhibit 34 is a true and correct copy of Rose Gutfeld, A Native American Group Lobbies NFL’s Redskins to Change Name, The Wall Street Journal (1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00845 and transmitted to this Court as A1176.
42. Attached hereto as Exhibit 35 is a true and correct copy of an editorial, ‘Redskins’ is racist’, Stanford Daily (Feb. 2, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00880 and transmitted to this Court as A1211.
43. Attached hereto as Exhibit 36 is a true and correct copy of Ron Martz, Stereotypes of Indians Ingrained in America, Atlanta Constitution (Dec. 7, 1986), and a more
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 9 of 50 PageID# 1229
legible reprint of the same article, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00891-92, 878-79 and transmitted to this Court as A1222-23, A1209-10.
44. Attached hereto as Exhibit 37 is a true and correct copy of Don Boxmeyer, Humboldt Urged to Leave Indians in Peace, St. Paul Pioneer Press (Nov. 29, 1987), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00893 and transmitted to this Court as A1224.
45. Attached hereto as Exhibit 38 is a true and correct copy of John Slupski, Native Americans get unsportsmanlike rep (1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00894-95 and transmitted to this Court as A1225-26.
46. Attached hereto as Exhibit 39 is a true and correct copy of Gary Fallesen, ‘Racist’ name taints game with stupidity, Democrat and Chronicle (1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00896 and transmitted to this Court as A1227.
47. Attached hereto as Exhibit 40 is a true and correct copy of Group Calls Indian Names Racist, Watertown Public Opinion (Jan. 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00898 and transmitted to this Court as A1229.
48. Attached hereto as Exhibit 41 is a true and correct copy of AP, Indian Group Fights ‘Racist’ Team Names, St. Cloud Daily Times (Jan. 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00899 and transmitted to this Court as A1230.
49. Attached hereto as Exhibit 42 is a true and correct copy of Mark Grossman, ‘Redskins’ Irks Indians; Protests Planned, Fairfax Journal (Jan. 21, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00900-01 and transmitted to this Court as A1231-32.
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50. Attached hereto as Exhibit 43 is a true and correct copy of Clarence Page, It’ll be the Broncos vs. a racial slur, Chicago Tribune (Jan. 24, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00902 and transmitted to this Court as A1233. Also attached is a plain text copy of the article, Bates numbered EDVA-DEF-0000104-05.
51. Attached hereto as Exhibit 44 is a true and correct copy of Paul O. Sand, Do not continue to smear American Indians in team names, Saint Paul Pioneer Press Dispatch (Jan. 28, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00903 and transmitted to this Court as A1237.
52. Attached hereto as Exhibit 45 is a true and correct copy of Pat Helmberger, Consider Religious Significance, Pioneer (Bernidji, MN) (Feb. 5, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00905 and transmitted to this Court as A1239.
53. Attached hereto as Exhibit 46 is a true and correct copy of Bob Bernotas, American Indian Group Wants Sports Names Changed, Baltimore Jewish Times (Feb. 12, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00907-08 and transmitted to this Court as A1241-42.
54. Attached hereto as Exhibit 47 is a true and correct copy of Don Coldsmith, Horsin’ Around . . . Racism Topic of Athletic Concern, Grass and Green (Manhattan, Kansas) (Mar. 8, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00909 and transmitted to this Court as A1243.
55. Attached hereto as Exhibit 48 is a true and correct copy of Richard Cohen, Redskin Reservations, Wash. Post (Apr. 17, 1988), introduced into the Blackhorse record before
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 11 of 50 PageID# 1231
the T.T.A.B. at BLA-TTAB-00910 and transmitted to this Court as A1244. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000106.
56. Attached hereto as Exhibit 49 is a true and correct copy of Erik Brady, Indians: A People, Not a Nickname, USA Today (Aug. 15, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00912 and transmitted to this Court as A1246.
57. Attached hereto as Exhibit 50 is a true and correct copy of Rick Telander, This Was a Magic Year, Sports Illustrated (Dec. 26, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00913 and transmitted to this Court as A1247.
58. Attached hereto as Exhibit 51 is a true and correct copy of Sam Thorp, Mascot Could Be Part of Bigger Problem, Penn (IUP) (Dec. 8, 1989), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00914 and transmitted to this Court as A1248.
59. Attached hereto as Exhibit 52 is a true and correct copy of S. Coffey, Indians Open War on Redskins, Wash. Post (Mar. 30, 1972), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00886-88 and transmitted to this Court as A1217-19. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF0000069-70.
60. Attached hereto as Exhibit 53 is a true and correct copy of Tom Quinn, Williams, Indians in Showdown, Washington Daily News (Mar. 30, 1972), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00834 and transmitted to this Court as A1165. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF0000065.
61. Attached hereto as Exhibit 54 is a true and correct copy of George Solomon, Redskins Keep Names, Will Change Lyrics, Wash. Post (Jul. 18, 1972), introduced into the
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 12 of 50 PageID# 1232
Blackhorse record before the T.T.A.B. at BLA-TTAB-00837 and transmitted to this Court as A1168. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000071.
62. Attached hereto as Exhibit 55 is a true and correct copy of The Double Eagle Ticket, Baltimore Sun (Jul. 20, 1972), bearing Bates stamp EDVA-DEF-0002566
63. Attached hereto as Exhibit 59 is a true and correct copy of excerpts from the deposition of James Riding In on January 7, 2015.
64. Attached hereto as Exhibit 60 is a true and correct copy of the Report of James Riding In, introduced as Exhibit 1 to his Deposition on January 7, 2015.
65. Attached hereto as Exhibit 61 is a true and correct copy of Alan Dundes and C. Fayne Porter, American Indian Student Slang, American Speech, Vol. 38, No. 4 (Dec. 1963), introduced with the Report of James Riding In as Exhibit 1 to his Deposition on January 7, 2015.
66. Attached hereto as Exhibit 76 is a true and correct copy of Minutes of Athletic Board Meeting, Univ. of Utah (Mar. 8, 1972), introduced with the Report of James Riding In as Exhibit 1 to his Deposition on January 7, 2015.
67. Attached hereto as Exhibit 77 is a true and correct copy of a letter from Michael K. Young, Pres., Univ. of Utah, to Bernard Franklin, VP, NCAA (Aug. 31, 2005), introduced with the Report of James Riding In as Exhibit 1 to his Deposition on January 7, 2015.
68. Attached hereto as Exhibit 62 is a true and correct copy of excerpts from the deposition of Vine Deloria on March 4, 1996.
69. Attached hereto as Exhibit 63 is a true and correct copy of Indian Tribal Entities That Have a Government-to-Government Relationship with the United States, 44 Fed. Reg. 7235 (Jan. 31, 1979).
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70. Attached hereto as Exhibit 64 is a true and correct copy of excerpts from the deposition of Harold Gross on March 4, 1996, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-03530- 602 and transmitted to this Court as A3958-4030.
71. Attached hereto as Exhibit 65 is a true and correct copy of a letter from Harold Gross to the President of PFI, Edward Bennett Williams (Jan. 18, 1972), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01640-42 and transmitted to this Court as A2031-33.
72. Attached hereto as Exhibit 66 is a true and correct copy of an attendee list of the 1972 meeting with Edward Bennett Williams, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-05848 and transmitted to this Court as A6313.
73. Attached hereto as Exhibit 67 is a true and correct copy of a letter from Edward Bennett Williams to Commissioner Pete Rozelle (Mar. 30, 1972), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-05860 and transmitted to this Court as A6325.
74. Attached hereto as Exhibit 68 is a true and correct copy of NCAI Wages War on Indian Images, NCAI Sentinel, v. 14 no. 1 (Winter-Spring, 1969), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00881-83 and transmitted to this Court as A1212-14.
75. Attached hereto as Exhibit 69 is a true and correct copy of Tom Quinn, Redskins, Rednecks, Washington Daily News (Nov. 5, 1971), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00825 and transmitted to this Court as A1156. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000056.
76. Attached hereto as Exhibit 70 is a true and correct copy of ‘Redskins’ Target of Movement, Evening Star (Jan. 19, 1972), introduced into the Blackhorse record before the
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T.T.A.B. at BLA-TTAB-01643 and transmitted to this Court as A2034. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000137.
77. Attached hereto as Exhibit 71 is a true and correct copy of Morris Siegel, Siegel at Large, Washington Star (Jan. 26, 1972), introduced into the Blackhorse record before the T.T.A.B Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000060.
78. Attached hereto as Exhibit 72 is a true and correct copy of William M. Carley, Is Chief Noc-A-Homa Racist? Many Indians Evidently Think He Is, Wall Street Journal (Jan. 27, 1972).
79. Attached hereto as Exhibit 73 is a true and correct copy of John McKelway, The Rambler . . . Ponders Name For the Redskins, Evening Star (Jan. 28, 1972).
80. Attached hereto as Exhibit 74 is a true and correct copy of Tom Quinn, More on the Redskins, and Williams to Meet With Indians, Washington Daily News (Mar. 22, 1972), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00833 and transmitted to this Court as A1164. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000064.
81. Attached hereto as Exhibit 75 is a true and correct copy of Steve Guback, Indians Take On Williams, Wash. Post (Mar. 30, 1972), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00835 and transmitted to this Court as A1166. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000066-68.
82. Attached hereto as Exhibit 78 is a true and correct copy of A. Seidenbaum, Stanford’s Last Stand, Los Angeles Times (Mar. 14, 1972).
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 15 of 50 PageID# 1235
83. Attached hereto as Exhibit 79 is a true and correct copy of Calvin Trillin, U.S. Journal: Hanover, N.H. - The Symbol is a Symbol, New Yorker (May 7, 1979), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00889 and transmitted to this Court as A1220.
84. Attached hereto as Exhibit 80 is a true and correct copy of The National Indian Education Association unanimously supports Stanford’s elimination of their Indian mascot, Stanford University News Service (Dec. 6, 1979), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-02207 and transmitted to this Court as A2613.
85. Attached hereto as Exhibit 81 is a true and correct copy of Avis Little Eagle, Action taken to chop ‘Redskins’ trademark, Lakota Times (Sept. 16, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00987-88 and transmitted to this Court as A1321-22.
86. Attached hereto as Exhibit 82 is a true and correct copy of Eric Haase, 3,000 rally against racist mascots, Lakota Times (Jan. 28, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00956-63 and transmitted to this Court as A1290-97.
87. Attached hereto as Exhibit 83 is a true and correct copy of excerpts from the deposition of JoAnn Chase on April 26, 1996, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-02771-887 and transmitted to this Court as A3192-308.
88. Attached hereto as Exhibit 84 is a true and correct copy of Amy Baker, Redskins won? Not if this group has anything to say about it!, Christian Science Monitor (Feb. 5, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00906 and transmitted to this Court as A1240. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000106.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 16 of 50 PageID# 1236
89. Attached hereto as Exhibit 85 is a true and correct copy of a letter from Phillip St. John, Concerned American Indian Parents, to Jack Kent Cooke (Jan. 6, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00249 and transmitted to this Court as A593.
90. Attached hereto as Exhibit 86 is a true and correct copy of a letter from Christopher Burke, Fans Against Indian Racism, to Jack Kent Cooke (Jan. 15, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00250 and transmitted to this Court as A594.
91. Attached hereto as Exhibit 87 is a true and correct copy of Tim Giago, Using sham rituals to boost sports teams belittles Native Americans’ culture, Saint Paul Pioneer Press (Oct. 22, 1991), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01003 and transmitted to this Court as A1340.
92. Attached hereto as Exhibit 88 is a true and correct copy of Tim Giago, Talk Radio: Ignorance adds insult to injury, Lakota Times (Oct. 30, 1991), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01004 and transmitted to this Court as A1341.
93. Attached hereto as Exhibit 89 is a true and correct copy of Tim Giago, I Hope the Redskins Lose, Newsweek (Jan. 27, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01005 and transmitted to this Court as A1342.
94. Attached hereto as Exhibit 90 is a true and correct copy of Tim Giago, Brave redskins? Gee, Mr. Cooke, very bigot of you, Lakota Times (Feb. 4, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01006 and transmitted to this Court as A1343.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 17 of 50 PageID# 1237
95. Attached hereto as Exhibit 91 is a true and correct copy of Tim Giago, Mascot issue won’t go away and neither will Indian people, Lakota Times (Apr. 1, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01007 and transmitted to this Court as A1344.
96. Attached hereto as Exhibit 92 is a true and correct copy of a letter from D. Tobbin to J. Cooke (Feb. 1988) (with attached article: T. Giago, We Are Human Beings, Not Mascots, Great Falls Tribune, Feb. 16, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00252 and transmitted to this Court as A596.
97. Attached hereto as Exhibit 93 is a true and correct copy of a note from R. Schmidt to J. Cooke, (Feb. 16, 1988) (with attached article: T. Giago, What’s In a Name? Racism, Grand Forks Herald, Feb. 13, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00253 and transmitted to this Court as A597.
98. Attached hereto as Exhibit 94 is a true and correct copy of a letter from L. Ottinger, et al. to J. Cooke (Feb. 21, 1988) (with attached article: T. Giago, If the name Redskins doesn’t bother team owner, how about Blackskins?, Sioux Falls Argus Leader, Feb. 21, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00261-62 and transmitted to this Court as A605-06.
99. Attached hereto as Exhibit 95 is a true and correct copy of a letter from Roxanna Puchner to Jack Kent Cooke (Feb. 22, 1988) (with attached article: T. Giago, A Clever Nickname Cannot Disguise a Racial Slur, Lakota Times, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00273-75 and transmitted to this Court as A617-19.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 18 of 50 PageID# 1238
100. Attached hereto as Exhibit 96 is a true and correct copy of a letter from Sen. Rudy Boschwitz to Jack Kent Cooke (Mar. 22, 1988), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00295 and transmitted to this Court as A639.
101. Attached hereto as Exhibit 97 is a true and correct copy of a letter from Sen. Dennis DeConcini to Paul Tagliabue, Comm’r, NFL, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00315-16 and transmitted to this Court as A659-60.
102. Attached hereto as Exhibit 98 is a true and correct copy of Randy Furst, Wellstone urges end to Washington ‘Redskins’, Star Tribune (Jan. 23, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00949 and transmitted to this Court as A1283. Attached is a plain text copy of the article, Bates numbered EDVA-DEF-0000121-23.
103. Attached hereto as Exhibit 99 is a true and correct copy of Leonard Inskip, Redskins: good team, bad name, Star Tribune (Jan. 26, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00954 and transmitted to this Court as A1288. Attached is plain text copy of the article, Bates numbered EDVA-DEF-0000126-27.
104. Attached hereto as Exhibit 100 is a true and correct copy of Bunty Anquoe, ‘Redskins’ new site on Interior land, Lakota Times (Jan. 21, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00946-47 and transmitted to this Court as A1280-81.
105. Attached hereto as Exhibit 101 is a true and correct copy of Change Nickname, Redskins Told - Congressman’s Bill Targets Stadium, Wash. Post (Jul. 3, 1993), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00863 and transmitted to this Court as A1194. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000088-90.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 19 of 50 PageID# 1239
106. Attached hereto as Exhibit 102 is a true and correct copy of AP Denver, Senate Bill Could Force Redskins Name Change (Jul. 3, 1993), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00864 and transmitted to this Court as A1195.
107. Attached hereto as Exhibit 103 is a true and correct copy of Mayor favors renaming Redskins, Washington Times (Aug. 24, 1993), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00865 and transmitted to this Court as A1196. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000091-92.
108. Attached hereto as Exhibit 104 is a true and correct copy of Avis Little Eagle, Sen. Nighthorse Stalks Redskins, Indian Country Today (Jul. 8, 1993), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00996 and transmitted to this Court as A1333.
109. Attached hereto as Exhibit 105 is a true and correct copy of Bunty Anquoe, ‘Redskins’ on the Run… Bill Seeking Name Change, Indian Country Today (Aug. 4, 1993), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00997-98 and transmitted to this Court as A1334-35.
110. Attached hereto as Exhibit 106 is a true and correct copy of Ruben Castaneda, Protesters Condemn Redskins Name, Wash. Post (Sept. 7, 1993), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00867 and transmitted to this Court as A1198. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF0000097.
111. Attached hereto as Exhibit 107 is a true and correct copy of S. Kovaleski, Delays Push Back Stadium’s Chances for 1995 Opening, Wash. Post (Oct. 28, 1993), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00868-69 and transmitted to this Court as
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 20 of 50 PageID# 1240
A1199. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000098-99.
112. Attached hereto as Exhibit 108 is a true and correct copy of National Congress of American Indians, Resolution No. EX DC-93-11 (Jan. 18-19, 1993), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00236-42 and transmitted to this Court as A580-86.
113. Attached hereto as Exhibit 109 is a true and correct copy of National Congress of American Indians, Resolution No. NV-93-143 (Dec. 3, 1993), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-04727-28 and transmitted to this Court as A5171-72.
114. Attached hereto as Exhibit 110 is a true and correct copy of Pat Doyle, ‘Chop’ is Spreading, but Indians Disagree on what is Offensive; Most Decry ‘Redskins” Nickname, Star Tribune (Nov. 1, 1991), introduced into the Blackhorse record before the T.T.A.B. both at BLATTAB-000920 and 932 (plain text) and transmitted to this Court as A1254, 1256.
115. Attached hereto as Exhibit 111 is a true and correct copy of Avis Little Eagle, Protesters meet Kansas ‘Chiefs’ at training camp; Mascots: a history of cultural insensitivity and A chronology of the mascot controversy, Lakota Times (Jul. 29, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00982-83 and transmitted to this Court as A1316-17.
116. Attached hereto as Exhibit 112 is a true and correct copy of J. Markiewicz, ‘Redskins’ Banned by University Senate - Proposal Forbids Use in Any Publication, Moves to Risser, Trustees For Approval, Miami Student (Apr. 13, 1993), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00995 and transmitted to this Court as A1332.
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117. Attached hereto as Exhibit 113 is a true and correct copy of excerpts from the deposition of Dr. Ivan Ross on February 20, 1997, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-04247-387 and transmitted to this Court as A4684-824.
118. Attached hereto as Exhibit 114 is a true and correct copy of the Expert Disclosure of Dr. Ivan Ross, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB04860-69 and transmitted to this Court as A5307-16.
119. Attached hereto as Exhibit 115 is a true and correct copy of the Native American Study Results Table prepared by Dr. Ivan Ross, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-04885 and transmitted to this Court as A5332.
120. Attached hereto as Exhibit 116 is a true and correct copy of excerpts from the deposition of Dr. Ivan Ross on December 12, 1996, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-03118-366 and transmitted to this Court as A3543-791.
121. Attached hereto as Exhibit 117 is a true and correct copy of excerpts from the deposition of Dr. Ivan Ross on June 11, 1997, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-04389-539 and transmitted to this Court as A4829-980.
122. 123. Attached hereto as Exhibit 118 is a true and correct copy of the NFL Film “Hail to the Redskins,” introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB02376 and transmitted to this Court as A2785. 124. Attached hereto as Exhibit 119 is a true and correct copy of Heap Big Injuns, (Oct. 1940), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00601 and transmitted to this Court as A923.
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125. Attached hereto as Exhibit 120 is a true and correct copy of excerpts from a 1962 Game Program, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB01190-91 and transmitted to this Court as A1533-34.
126. Attached hereto as Exhibit 121 is a true and correct copy of Leonard Shapiro, Offensive Penalty Called on ‘Redskins’, Wash. Post (Nov. 3, 1991), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00848-49 and transmitted to this Court as A1179-80. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000074-75.
127. Attached hereto as Exhibit 122 is a true and correct copy of a newspaper photograph of Redskinettes in Native American costume with the caption “Four fumbles take the cheer out of Washington’s Redskinettes,” introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00699 and transmitted to this Court as A1024.
128. Attached hereto as Exhibit 123 is a true and correct copy of a photograph of Redskinettes cheerleaders wearing stereotyped black braided hair wigs and Native American costumes, The Redskin magazine, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01166 and transmitted to this Court as A1509.
129. Attached hereto as Exhibit 124 is a true and correct copy of excerpts from The Redskin magazine (Sept. 30, 1962), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01250-54 and transmitted to this Court as A1599-603.
130. Attached hereto as Exhibit 125 is a true and correct copy of excerpts from The Redskin magazine (Oct. 7, 1962), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01261-64 and transmitted to this Court as A1610-13.
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131. Attached hereto as Exhibit 126 is a true and correct copy of excerpts from The Redskin magazine (Sept. 29, 1963), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01275-77 and transmitted to this Court as A1624-26.
132. Attached hereto as Exhibit 127 is a true and correct copy of excerpts from The Redskin magazine (Oct. 6, 1963), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01278-81 and transmitted to this Court as A1627-30.
133. Attached hereto as Exhibit 128 is a true and correct copy of excerpts from The Redskin magazine (Nov. 17, 1963), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01285-88 and transmitted to this Court as A1637-40.
134. Attached hereto as Exhibit 129 is a true and correct copy of excerpts from The Redskin magazine (Nov. 17, 1968), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01355-59 and transmitted to this Court as A1713-17.
135. Attached hereto as Exhibit 130 is a true and correct copy of excerpts from Redskins magazine (Nov. 25, 1962), including a photograph of the Redskins Marching Band, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01269-70 and transmitted to this Court as A1618-19.
136. Attached hereto as Exhibit 131 is a true and correct copy of Respondent’s Fourth Supplemental Response to Petitioners’ First, Second and Third Sets of Interrogatories, Harjo v. Pro-Football Inc. No. 21,069 (TTAB) (Dec. 20, 1996), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-02632-42 and transmitted to this Court as A3047-57.
137. Attached hereto as Exhibit 132 is a true and correct copy of photographs of the “Washington Redskins Marching Band,” introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01139-67 and transmitted to this Court as A1478-96, A1500-10.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 24 of 50 PageID# 1244
138. Attached hereto as Exhibit 133 is a true and correct copy of excerpts from Redskins magazine (Dec. 1, 1963), including a photograph of the Redskins Marching Band, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01289-92 and transmitted to this Court as A1641-44.
139. Attached hereto as Exhibit 134 is a true and correct copy of excerpts from Redskins magazine (Oct. 29, 1967), including a photograph of the Redskins Marching Band, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01349-50 and transmitted to this Court as A1707-08.
140. Attached hereto as Exhibit 135 is a true and correct copy of excerpts from Redskins magazine (Oct. 13, 1968), including a photograph of the Redskins Marching Band, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01355-56 and transmitted to this Court as A1713-14.
141. Attached hereto as Exhibit 136 is a true and correct copy of Photographs of the members of the “Redskins marching band” from “Redskin ‘76 Yearbook,” introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01410-13 and transmitted to this Court as A1774-77.
142. Attached hereto as Exhibit 137 is a true and correct copy of photographs of the members of the “Redskins marching band” from 1988 “Redskins” Yearbook,” introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01473-74 and transmitted to this Court as A1846-47.
143. Attached hereto as Exhibit 138 is a true and correct copy of a photograph of players wearing headdresses captioned “Feathers Are Only Decorative But Players Bear D.C.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 25 of 50 PageID# 1245
Football Hope,” Washington Times Herald, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00676 and transmitted to this Court as A1001.
144. Attached hereto as Exhibit 139 is a true and correct copy of an AP photograph of PFI players wearing headdresses captioned “Heap, Heap Horray! For Redskins,” Wash. Post, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00677 and transmitted to this Court as A1002.
145. Attached hereto as Exhibit 140 is a true and correct copy of photos of players wearing “typical aborigine headdress” during practice, Washington Star, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00678 and transmitted to this Court as A1003.
146. Attached hereto as Exhibit 141 is a true and correct copy of a photo of PFI players wearing headdresses, Washington Daily News, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00679 and transmitted to this Court as A1004.
147. Attached hereto as Exhibit 142 is a true and correct copy of a photos of fans, players, and the Team marching band, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00680 and transmitted to this Court as A1005.
148. Attached hereto as Exhibit 143 is a true and correct copy of Ev Gardner, How George Preston Marshall Boosted Racing, with photo of Team owner wearing headdress, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00684 and transmitted to this Court as A1009.
149. Attached hereto as Exhibit 144 is a true and correct copy of Redskins Clip Eagles 27-21, As Baugh Ends Career, Washington Times Herald (Dec. 15, 1952) (with photograph),
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 26 of 50 PageID# 1246
introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00695-96 and transmitted to this Court as A1020-21.
150. Attached hereto as Exhibit 145 is a true and correct copy of a photograph of George Preston Marshall crowning twin sisters as Miss Redskins 1954, Evening Star (Oct. 6, 1954), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00697 and transmitted to this Court as A1022. Attached is a more legible photocopy, Bates numbered EDVA-DEF-0000020.
151. Attached hereto as Exhibit 146 is a true and correct copy of a photograph of PFI publicity aide Joan Adams wearing a headdress, Evening Star (Sep. 22, 1959), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00698 and transmitted to this Court as A1023. Attached is a more legible photocopy, Bates numbered EDVA-DEF-0000021.
152. Attached hereto as Exhibit 147 is a true and correct copy of excerpts from a 1959 Team game program, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB01226-29 and transmitted to this Court as A1572-75.
153. Attached hereto as Exhibit 148 are true and correct copies of covers from Team game programs, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB00757-70, 772, 774-75 and transmitted to this Court as A1085-98, A1100, A1102-03.
154. Attached hereto as Exhibit 149 is a true and correct copy of a cover from the Team game program (Sept. 21, 1958), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00776 and transmitted to this Court as A1104.
155. Attached hereto as Exhibit 150 is a true and correct copy of excerpts from the deposition of John Kent Cooke on March 27, 1996.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 27 of 50 PageID# 1247
156. Attached hereto as Exhibit 151 is a true and correct copy of an advertisement for Hecht’s “Scalp the Cowboys!: Hecht’s Fearless Prediction: The Redskins will cream “America’s Team,” introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00598 and transmitted to this Court as A920.
157. Attached hereto as Exhibit 152 is a true and correct copy of “All chiefs, no Indians,” introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00599 and transmitted to this Court as A921.
158. Attached hereto as Exhibit 153 is a true and correct copy of J. Sell, Washington Team’s Powerful Attack Routs Local Team - Scalped!, Pittsburgh Post Gazette (Oct. 7, 1940), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00600 and transmitted to this Court as A922.
159. Attached hereto as Exhibit 154 is a true and correct copy of Redskins Scalp Army Gridders, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00602 and transmitted to this Court as A924.
160. Attached hereto as Exhibit 155 is a true and correct copy of Redskins, Scalped by Steelers, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00603 and transmitted to this Court as A925.
161. Attached hereto as Exhibit 156 is a true and correct copy of a photograph with caption “‘Skins Scalp Yanks, 17 to 14” (Nov. 11, 1946), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00604 and transmitted to this Court as A926.
162. Attached hereto as Exhibit 157 is a true and correct copy of H. Autz, College Stars Give Redskins Scalping, 27-7, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00605 and transmitted to this Court as A927.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 28 of 50 PageID# 1248
163. Attached hereto as Exhibit 158 is a true and correct copy of J. McNae, Skins After Dummy’s Scalp in Next Session, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00606 and transmitted to this Court as A928.
164. Attached hereto as Exhibit 159 is a true and correct copy of Tribe Figured Best In East With Foe Tops In West, introduced into the Blackhorse record before the T.T.A.B. at BLATTAB-00607 and transmitted to this Court as A929.
165. Attached hereto as Exhibit 160 is a true and correct copy of D. Slattery, GP’s Set to Scalp if His Redskins Don’t, Washington Daily News (Oct. 23, 1948), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00608 and transmitted to this Court as A930.
166. Attached hereto as Exhibit 161 is a true and correct copy of C. Chamberlain, Tribe Is Inspired by Memory of 73-0 Defeat, Washington Evening Star (Nov. 23, 1942), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00609 and transmitted to this Court as A931.
167. Attached hereto as Exhibit 162 is a true and correct copy of a photograph with caption “Hail to the Redskins,” Washington Times-Herald (Nov. 4, 1947), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00610 and transmitted to this Court as A932.
168. Attached hereto as Exhibit 163 is a true and correct copy of a photograph with caption “35,676 (Count ‘Em) Fans See Redskins Scalped in Pro Football Exhibition”, Washington Post, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB00611 and transmitted to this Court as A933.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 29 of 50 PageID# 1249
169. Attached hereto as Exhibit 164 is a true and correct copy of an excerpt of the article 36,006 See Redskins Topple Bears for Title and Bears Will Go Through With ‘Pro Bowl’ Clash If They Beat Skins (Dec. 14, 1942), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00612-13 and transmitted to this Court as A934-35.
170. Attached hereto as Exhibit 165 is a true and correct copy of E. Prell, Redskin Chief Wants Showdown on Future, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00614-15 and transmitted to this Court as A936-37.
171. Attached hereto as Exhibit 166 is a true and correct copy of J. King, Skins’d Even Scalp Bears if the Kickoff Were Today (June 14, 1943), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00616 and transmitted to this Court as A938.
172. Attached hereto as Exhibit 167 is a true and correct copy of headlines including Grid Loop on Warpath Over Redskins’ Demands, Pittsburgh Press (June 21, 1943), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00617 and transmitted to this Court as A939.
173. Attached hereto as Exhibit 168 is a true and correct copy of D. Slattery, Skins Stage Another Boston Massacre, 59-21, Washington Daily News (Monday, November 1, 1948), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00618-19 and transmitted to this Court as A940-41.
174. Attached hereto as Exhibit 169 is a true and correct copy of an advertisement for “The Redskins Show,” introduced into the Blackhorse record before the T.T.A.B. at BLATTAB-00620 and transmitted to this Court as A942.
175. Attached hereto as Exhibit 170 is a true and correct copy of D. Slattery, Giants Massacre Redskins: Gen. Custer Avenged, Washington Daily News (October 11, 1954),
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 30 of 50 PageID# 1250
introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00621 and transmitted to this Court as A943.
176. Attached hereto as Exhibit 171 is a true and correct copy of A. Costello, Redskins Hit Warpath To Coast Camp Today, Washington Times-Herald (Dec. 16, 1950), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00622 and transmitted to this Court as A944.
177. Attached hereto as Exhibit 172 is a true and correct copy of photograph “Redskin Chiefs Pow-Wow” (1950), introduced into the Blackhorse record before the T.T.A.B. at BLATTAB-00623 and transmitted to this Court as A945.
178. Attached hereto as Exhibit 173 is a true and correct copy of D. Slattery, Wigwam Chit-Chat, Washington Daily News (Jan. 31, 1951), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00624 and transmitted to this Court as A946.
179. Attached hereto as Exhibit 174 is a true and correct copy of D. Slattery, Redskins on the Warpath, The Washington Daily News (Oct. 29, 1951), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00625 and transmitted to this Court as A947.
180. Attached hereto as Exhibit 175 is a true and correct copy of Skins Scalp Steelers, 22-7, For 3rd Win, Baltimore Sun (Nov. 11, 1951), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00626 and transmitted to this Court as A948.
181. Attached hereto as Exhibit 176 is a true and correct copy of a photograph with caption “Big Chief Welcomes Todd Back to Redskin Tepee” (1952), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00627 and transmitted to this Court as A949.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 31 of 50 PageID# 1251
182. Attached hereto as Exhibit 177 is a true and correct copy of a photograph with caption “Redskins’ Offensive Line Ready to Hit Warpath in Old D.C. Today,” Washington Times-Herald (Oct. 12, 1952), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00628 and transmitted to this Court as A950.
183. Attached hereto as Exhibit 178 is a true and correct copy of Ev Gardner, Optimism in the Tepee, Washington Daily News (Nov. 28, 1952), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00629 and transmitted to this Court as A951.
184. Attached hereto as Exhibit 179 is a true and correct copy of D. Slattery, Tribe Quarterbacks Go Back to School, Washington Daily News (August 8, 1953), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00630 and transmitted to this Court as A952.
185. Attached hereto as Exhibit 180 is a true and correct copy of D. Slattery, Tribe Thinks a Heap of Its Old Braves, Washington Daily News (Aug. 15, 1953), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00631 and transmitted to this Court as A953.
186. Attached hereto as Exhibit 181 is a true and correct copy of D. Slattery, Redskins Brewing Special Kickapoo Juice for Browns, Washington Daily News (Oct. 1953), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00632 and transmitted to this Court as A954.
187. Attached hereto as Exhibit 182 is a true and correct copy of D. Slattery, Wigwam Wigwags, Washington Daily News (Oct. 22, 1953), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00633 and transmitted to this Court as A955.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 32 of 50 PageID# 1252
188. Attached hereto as Exhibit 183 is a true and correct copy of the headline D. Slattery, Scalped Redskins Scratched: They’re Out of Title Race, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00634 and transmitted to this Court as A956.
189. Attached hereto as Exhibit 184 is a true and correct copy of D. Slattery, Redskins Ambushed, Washington Daily News (Aug. 20, 1957), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00635 and transmitted to this Court as A957.
190. Attached hereto as Exhibit 185 is a true and correct copy of W. Thompson, Joy in Teepee: Papoose Platoon Set For Rough NFL Wars, Charlotte Observer (1957), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00636 and transmitted to this Court as A958.
191. Attached hereto as Exhibit 186 is a true and correct copy of D. Slattery, Tribe’s Sloppy Play Makes Curly Erupt, The Washington Daily News (Aug. 16, 1954), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00637 and transmitted to this Court as A959.
192. Attached hereto as Exhibit 187 is a true and correct copy of D. Slattery, The Redskins Resembled Cigar Store Indians, The Washington Daily News (Oct. 6, 1953), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00638 and transmitted to this Court as A960.
193. Attached hereto as Exhibit 188 is a true and correct copy of H. Clark, Lo! The Vanishing Redskins! Speedy Steeds Outrun, Outgun Injuns, Baltimore News-Post (October 27, 1958), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00639-40 and transmitted to this Court as A961-62.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 33 of 50 PageID# 1253
194. Attached hereto as Exhibit 189 is a true and correct copy of T. Yorke, Redskins First In Trail-Blazing, The Washington Daily News (April 4, 1959), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00641 and transmitted to this Court as A963.
195. Attached hereto as Exhibit 190 is a true and correct copy of M. Muileman, Beware, Colts! Redskins In Ambush, The Charlotte (N.C.) News (Nov. 7, 1959), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00642 and transmitted to this Court as A964.
196. Attached hereto as Exhibit 191 is a true and correct copy of Nixon’s on the Redskin Warpath, Charlotte News (Dec. 3, 1959), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00643 and transmitted to this Court as A965.
197. Attached hereto as Exhibit 192 is a true and correct copy of an excerpt from Redskins Start Bloodletting Today, Washington Post (July 10, 1969), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00644 and transmitted to this Court as A966.
198. Attached hereto as Exhibit 193 is a true and correct copy of a photograph with caption “Darkness Descends on Redskin Ruins, 34-0” (Jan. 7, 1970), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00645 and transmitted to this Court as A967.
199. Attached hereto as Exhibit 194 is a true and correct copy of Cards Massacre Redskins, 44 to 7, Washington Times-Herald (Nov. 8, 1960), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00646 and transmitted to this Court as A968.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 34 of 50 PageID# 1254
200. Attached hereto as Exhibit 195 is a true and correct copy of T. Yorke, Tribe Brass Seek Answers, Washington Daily News (Nov. 10, 1960), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00647 and transmitted to this Court as A969.
201. Attached hereto as Exhibit 196 is a true and correct copy of T. Yorke, Colts Are Scalping Redskins at the Gate, The Washington Daily News (May 23, 1961), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00648 and transmitted to this Court as A970.
202. Attached hereto as Exhibit 197 is a true and correct copy of a photograph captioned “The New Indian Rope Trick,” introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00649 and transmitted to this Court as A971.
203. Attached hereto as Exhibit 198 is a true and correct copy of D. Brady, Redskins Will Be Good Warriors if Huff Gets Linebacking Help, Washington Post (July 12, 1964), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00650 and transmitted to this Court as A972.
204. Attached hereto as Exhibit 199 is a true and correct copy of D. Brady, Optimism Ramptant as 1965 Openers Near - Hostility of Redskins Intrigues Patient Fans, Washington Post (Sept. 12, 1965), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB00651 and transmitted to this Court as A973.
205. Attached hereto as Exhibit 200 is a true and correct copy of J. Tomlinson, TomToms (with drawing of Native American with small wood fire), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00652 and transmitted to this Court as A974.
206. Attached hereto as Exhibit 201 is a true and correct copy of L. Atchison, Bowand-Arrow Arsenal Fails: Reskins and Coaches Stunned By Debacle, Evening Star (Oct. 11,
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 35 of 50 PageID# 1255
1965), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00653-54 and transmitted to this Court as A975-76.
207. Attached hereto as Exhibit 202 is a true and correct copy of T. Yorke, Our Injuns Get Tuneup; Sonny the Spark Plug, Washington Daily News (Oct. 25, 1965), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00655 and transmitted to this Court as A977.
208. Attached hereto as Exhibit 203 is a true and correct copy of T. Yorke, McPeak Is Facing the Tomahawk, Washington Daily News (Dec. 6, 1965), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00657 and transmitted to this Court as A979.
209. Attached hereto as Exhibit 204 is a true and correct copy of T. Yorke, Did Tribe Panic on Paluck Deal?, Washington Daily News (Aug. 18, 1966), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00658 and transmitted to this Court as A980.
210. Attached hereto as Exhibit 205 is a true and correct copy of D. Brady, Redskins Scalp 49ers, Plan Cowboy Ambush, Pro Football Weekly (Nov. 13, 1967), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00659 and transmitted to this Court as A981.
211. Attached hereto as Exhibit 206 is a true and correct copy of D. Brady, Lombardi’s Messages Come Through Loud and Clear, Washington Post (July 10, 1969) (with photograph captioned “Redskins on Warpath,”), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00660-61 and transmitted to this Court as A982-83.
212. Attached hereto as Exhibit 207 is a true and correct copy of L. Atchison, More Cuts Likely to Follow Full-Scale Redskin Warfare, Evening Star (Aug. 13, 1969), introduced into
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 36 of 50 PageID# 1256
the Blackhorse record before the T.T.A.B. at BLA-TTAB-00663 and transmitted to this Court as A988.
213. Attached hereto as Exhibit 208 is a true and correct copy of S. Hershey, “The Scalp Hunters,” Evening Star (Nov. 9, 1972), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00664 and transmitted to this Court as A989.
214. Attached hereto as Exhibit 209 is a true and correct copy of W. Claiborne, Skin Fans Scalped By Ticket Owners / Some Ticket Owners Scalp ‘Skins Fans, The Washington Post (Dec. 16, 1973), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB00665 and transmitted to this Court as A990.
215. Attached hereto as Exhibit 210 is a true and correct copy of advertisement “How Many Redskins Does It Take To Clean a Fish?” for Woodward & Lothrop (1983), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00666-67 and transmitted to this Court as A991-92.
216. Attached hereto as Exhibit 211 is a true and correct copy of B. Levey, Bob Levey’s Washington: A Redskin ‘Salesman’ Gets Scalped, Wash. Post (Oct. 21, 1985), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00668 and transmitted to this Court as A993. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000014.
217. Attached hereto as Exhibit 212 is a true and correct copy of Sweet Revenge (Nov. 25, 1986), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00669 and transmitted to this Court as A994.
218. Attached hereto as Exhibit 213 is a true and correct copy of M. Zad, Redskins Back On the Warpath, Wash. Post (Aug. 5, 1990), introduced into the Blackhorse record before
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 37 of 50 PageID# 1257
the T.T.A.B. at BLA-TTAB-00670 and transmitted to this Court as A995. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000015-16.
219. Attached hereto as Exhibit 214 is a true and correct copy of Santa Claus Misses Wigwam Goal, Times-Herald (Washington D.C.) (Dec. 15, 1947), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00672 and transmitted to this Court as A997.
220. Attached hereto as Exhibit 215 is a true and correct copy of an AP photograph of George Preston Marshall with cigar store Indian caption: “So You Won’t Talk, Eh?” introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00673 and transmitted to this Court as A998.
221. Attached hereto as Exhibit 216 is a true and correct copy of a photograph of George Preston Marshall captioned “Cigar Store Indian Part of Marshall’s Ballyhoo,” Milwaukee Journal, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB00674 and transmitted to this Court as A999.
222. Attached hereto as Exhibit 217 is a true and correct copy of photos of marching band captioned “Dress Rehearsal for Another Season of Hailing,” introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00675 and transmitted to this Court as A1000.
223. Attached hereto as Exhibit 218 is a true and correct copy of a photo of PFI players wearing headdresses, Washington Daily News, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00682 and transmitted to this Court as A1007.
224. Attached hereto as Exhibit 219 is a true and correct copy of W. Haight, Redskins’ Backfield Star Talks Indian, Signs His Right Name and Haight Meets Farkas, Becomes Better Man, Wash. Post (Feb. 6, 1940), introduced into the Blackhorse record before the T.T.A.B. at
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 38 of 50 PageID# 1258
BLA-TTAB-00683 and transmitted to this Court as A1008. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000017-18.
225. Attached hereto as Exhibit 220 is a true and correct copy of a photo of marching band with director dressed in Native American costume captioned “Champion Drum Major Scores Hit With Band,” introduced into the Blackhorse record before the T.T.A.B. at BLATTAB-00685 and transmitted to this Court as A1010.
226. Attached hereto as Exhibit 221 is a true and correct copy of Photograph with caption “Layden Sits In on Annual Banquet of Redskin Band,” Washington Times-Herald (May 5, 1941), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00686 and transmitted to this Court as A1011.
227. Attached hereto as Exhibit 222 is a true and correct copy of a photo of man standing next to Native American statue in PFI office with caption “As One Indian to Another, Says Redskin Rookie,” Washington Times-Herald (Jun. 23, 1942), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00687 and transmitted to this Court as A1012.
228. Attached hereto as Exhibit 223 is a true and correct copy of a photograph with caption “The Admiral Gets His Orders” with coach and George Preston Marshall and a statue in the background, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00689 and transmitted to this Court as A1014.
229. Attached hereto as Exhibit 224 is a true and correct copy of AAC Won’t Puff on GP’s Peace Pipe, Washington Daily News (Dec. 3, 1949), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00690 and transmitted to this Court as A1015.
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230. Attached hereto as Exhibit 225 is a true and correct copy of a photo of George Preston Marshall smoking a peace pipe, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00691 and transmitted to this Court as A1016.
231. Attached hereto as Exhibit 226 is a true and correct copy of a photograph of potential player wearing headdress with caption “Big Chief Choo-Choo He Ponder” Washington Times-Herald (Aug. 3, 1950), introduced into the Blackhorse record before the T.T.A.B. at BLATTAB-00692 and transmitted to this Court as A1017.
232. Attached hereto as Exhibit 227 is a true and correct copy of a photo of Amoco president signing contract to sponsor radio broadcasts of games, in front of statues, Wash. Post (Mar. 13, 1952), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB00693 and transmitted to this Court as A1018. Attached is a more legible and more complete copy of the picture, Bates numbered EDVA-DEF-0000019.
233. Attached hereto as Exhibit 228 is a true and correct copy of D. Slattery, Three Redskins Due for Ax, Washington Daily News (Mar. 13, 1952), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00694 and transmitted to this Court as A1019.
234. Attached hereto as Exhibit 229 is a true and correct copy of Globe Helps Washington Redskins, Globe (August 1964), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00700 and transmitted to this Court as A1025.
235. Attached hereto as Exhibit 230 is a true and correct copy of M. Siegel, Redskins’ Band To Drop Dixie, Evening Star (Aug. 16, 1965), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00701 and transmitted to this Court as A1026.
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236. Attached hereto as Exhibit 231 is a true and correct copy of T. Seppy, Skins’ Pow Wow Fading?, Dallas Morning News (Nov. 21, 1978), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00702 and transmitted to this Court as A1027.
237. Attached hereto as Exhibit 232 is a true and correct copy of photos of Super Bowl XXVI Championship game with fans dressed as Native Americans, Washington Times (1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00704-05 and transmitted to this Court as A1029-30.
238. Attached hereto as Exhibit 233 is a true and correct copy of B. Harden, 500,000 Frenzied Fans Revel in the Rain for Redskins, Wash. Post (Feb. 3, 1983), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00707 and transmitted to this Court as A1032. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000024-26.
239. Attached hereto as Exhibit 234 is a true and correct copy of P.E. Bauer and J. Mintz, Unbelievers in an Alien Land and Touchdown Gallup Sparks Jubilation in Washington, Wash. Post (Jan. 11, 1981), introduced into the Blackhorse record before the T.T.A.B. at BLATTAB-00708-09 and transmitted to this Court as A1033-34. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000027-28.
240. Attached hereto as Exhibit 235 is a true and correct copy of J. Cook, The Chief of Victory, Great Times (Arundel, MD) (Aug. 25, 1983), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00710 and transmitted to this Court as A1035.
241. Attached hereto as Exhibit 236 is a true and correct copy of photos of Washington v. Dallas NFC Championship game with caption “A Fan’s First Impressions” (Jan.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 41 of 50 PageID# 1261
1983), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00711 and transmitted to this Court as A1036.
242. Attached hereto as Exhibit 237 is a true and correct copy of C. Williams, A City’s Soul on a Roll, Wash. Post (Jan. 31, 1983), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00712 and transmitted to this Court as A1037. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000029-31.
243. Attached hereto as Exhibit 238 is a true and correct copy of newspaper photos of fans during Washington football game including photo of Zema Williams (“Chief Z”) (Jan. 13, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00713 and transmitted to this Court as A1038.
244. Attached hereto as Exhibit 239 is a true and correct copy of Shame on you, Redskins!, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00714 and transmitted to this Court as A1039.
245. Attached hereto as Exhibit 240 is a true and correct copy of D. Kindred, ...Washington Reacts Quizzically, Wash. Post (Sept. 4, 1983) (with photograph), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00715 and transmitted to this Court as A1040. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000032-33.
246. Attached hereto as Exhibit 241 is a true and correct copy of M. Kimel, The Lullaby of Washington - ‘Hail to the Redskins’ - Music that Soothes the Savage Breast of a City, Wash. Post (Jan 13, 1991), introduced into the Blackhorse record before the T.T.A.B. at BLATTAB-00716 and transmitted to this Court as A1041. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000034.
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247. Attached hereto as Exhibit 242 is a true and correct copy of V.L. Dorsey, Indian Mascots Stir Sensitivity Debate, USA Today (Oct. 23, 1991), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00717 and transmitted to this Court as A1042.
248. Attached hereto as Exhibit 243 is a true and correct copy of K. Swisher, Undefeated ‘Skins Fans on the Store Path, Wash. Post (Oct. 26, 1991), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00718 and transmitted to this Court as A1043. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000035-36.
249. Attached hereto as Exhibit 244 is a true and correct copy of a photo of Washington football fans wearing headdress during Super Bowl (1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00719 and transmitted to this Court as A1044.
250. Attached hereto as Exhibit 245 is a true and correct copy of B. Molinero, Redskins Leave No Doubts, The Virginian Pilot (Jan. 27, 1992) (with photograph), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00720-21 and transmitted to this Court as A1045-46.
251. Attached hereto as Exhibit 246 is a true and correct copy of Newspaper photo of fan Samu Qureshi dressed in Native American costume surrounded by team memorabilia (1994), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00722 and transmitted to this Court as A1047.
252. Attached hereto as Exhibit 247 is a true and correct copy of L. Woellert, Movable Feasts - Redskins Fans Bring Party to Parking Lots at RFK, Washington Times (Sept. 5, 1994), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00723 and transmitted
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 43 of 50 PageID# 1263
to this Court as A1048. Attached is a more legible and more complete copy of the article, Bates numbered EDVA-DEF-0000039.
253. Attached hereto as Exhibit 248 is a true and correct copy of a newspaper cartoon by J. Berryman caricature of player with feather in helmet (1940), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00779 and transmitted to this Court as A1107.
254. Attached hereto as Exhibit 249 is a true and correct copy of a newspaper cartoon by Reinert captioned “Rams Fight to Bring Cleveland Its Second Pro Football Title” (1940s), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00781 and transmitted to this Court as A1109.
255. Attached hereto as Exhibit 250 is a true and correct copy of a newspaper cartoon showing caricature of Native American preparing to ambush a covered wagon labeled “AllStars” (1940s), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00782 and transmitted to this Court as A1110.
256. Attached hereto as Exhibit 251 is a true and correct copy of a newspaper cartoon by J. Berryman captioned “C’mon out and play, Chief” (1940s), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00783 and transmitted to this Court as A1111.
257. Attached hereto as Exhibit 252 is a true and correct copy of a newspaper cartoon by J. Berryman captioned “Red, White - and Blue!”, Evening Star (Dec. 1, 1942), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00784 and transmitted to this Court as A1112. Attached is a more legible and more complete copy of the cartoon, Bates numbered EDVA-DEF-0000041.
258. Attached hereto as Exhibit 253 is a true and correct copy of a newspaper cartoon by J. Berryman captioned “A Bold Challenge - With Reservations”, Sunday Star (Dec. 13,
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 44 of 50 PageID# 1264
1942), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00785 and transmitted to this Court as A1113. Attached is a more legible and more complete copy of the cartoon, Bates numbered EDVA-DEF-0000042.
259. Attached hereto as Exhibit 254 is a true and correct copy of Wholesale Changes Coming in 1941, Declares Marshall Charging His Team Quit, Washington Star (Dec. 9, 1940), (with cartoon captioned “The Vanishing American”), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00786-87 and transmitted to this Court as A1114-15. Attached is a more legible and more complete copy, Bates numbered EDVA-DEF-0000043.
260. Attached hereto as Exhibit 255 is a true and correct copy of a newspaper cartoon by J. Berryman captioned “Still Sitting - But Not Pretty!”, Evening Star (Nov. 17, 1941), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00788 and transmitted to this Court as A1116. Attached is a more legible and more complete copy of the cartoon, Bates numbered EDVA-DEF-0000044.
261. Attached hereto as Exhibit 256 is a true and correct copy of Redskins Unawed by Giants Vaunted Superiority, Likely Handicap of Wet Grid, Evening Star (Nov. 23, 1941) (with cartoon by J. Berryman), introduced into the Blackhorse record before the T.T.A.B. at BLATTAB-00789 and transmitted to this Court as A1117. Attached is a more legible and more complete copy, Bates numbered EDVA-DEF-0000045.
262. Attached hereto as Exhibit 257 is a true and correct copy of Newspaper ad for theater show captioned “Everybody Gets A Kick Out of Janie” with letter from Marshall supporting show and caricatures of Native Americans, New York Times (Oct. 29, 1942), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00790 and transmitted to this Court as A1118.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 45 of 50 PageID# 1265
263. Attached hereto as Exhibit 258 is a true and correct copy of A. Ward, In the Wake of the Night, (Aug. 19, 1943) (with cartoon), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00791 and transmitted to this Court as A1119.
264. Attached hereto as Exhibit 259 is a true and correct copy of a newspaper cartoon by J. Berryman captioned “Something to Shout About”, Evening Star (Oct. 19, 1943), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00792 and transmitted to this Court as A1112. Attached is a more legible and more complete copy, Bates numbered EDVADEF-0000046.
265. Attached hereto as Exhibit 260 is a true and correct copy of a newspaper cartoon by J. Berryman captioned “No time for Shadow-Boxing”, Sunday Star (Nov. 14, 1943), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00793 and transmitted to this Court as A1121. Attached is a more legible and more complete copy, Bates numbered EDVA-DEF-0000047.
266. Attached hereto as Exhibit 261 is a true and correct copy of a handwritten leaflet with caricature of Native American with tomahawk chasing football player carrying football (Nov. 17, 1957), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB00794 and transmitted to this Court as A1122.
267. Attached hereto as Exhibit 262 is a true and correct copy of a newspaper cartoon by J. Berryman captioned “Full of Food And Fight,” Washington Star (Nov. 24, 1950), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00795 and transmitted to this Court as A1123.
- 44 -

Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 46 of 50 PageID# 1266
268. Attached hereto as Exhibit 263 is a true and correct copy of The Redskins Are Coming!, Charlotte News (Aug. 1959) (with cartoon), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00797 and transmitted to this Court as A1125.
269. Attached hereto as Exhibit 264 is a true and correct copy of a cartoon by Pat Coffey captioned “Get the Message?”, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00798 and transmitted to this Court as A1126.
270. Attached hereto as Exhibit 265 is a true and correct copy of T. Yorke, Jurgensen to Be Out Two to Three Weeks, Washington Daily News (Aug. 6, 1964) (with cartoon), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00799 and transmitted to this Court as A1127.
271. Attached hereto as Exhibit 266 is a true and correct copy of T. Yorke, McPeak Shakes Up the Troops, Cuts Atkins - Redskins Don’t Figure to Be as Nervous Without Pervis, Washington Daily News (Oct. 14, 1965) (with cartoon), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00800 and transmitted to this Court as A1128.
272. Attached hereto as Exhibit 267 is a true and correct copy of an editorial cartoon by Baccerra captioned “The Medicine Man,” Yonkers Herald Statesman (Feb. 7, 1969), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00801 and transmitted to this Court as A1129.
273. Attached hereto as Exhibit 268 is a true and correct copy of a cartoon of game vs. Cowboys captioned “Viewpoints,” Fort Worth Star-Telegram (Nov. 21, 1979), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00802 and transmitted to this Court as A1130.
- 45 -

Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 47 of 50 PageID# 1267
274. Attached hereto as Exhibit 269 is a true and correct copy of an editorial cartoon by Garner with picture of “scalped” man saying “I got tickets to the playoff!,” Washington Times (1990s), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00803 and transmitted to this Court as A1131.
275. Attached hereto as Exhibit 270 is a true and correct copy of a cartoon by Snyder captioned “Anne Arundel Viewpoints,” Baltimore Sun (Dec. 18, 1994), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00804 and transmitted to this Court as A1132.
276. Attached hereto as Exhibit 271 is a true and correct copy of UPI, George Marshall, Redskins Chief, Dies, The Pittsburgh Press (Aug. 10, 1969), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00819 and transmitted to this Court as A1150.
277. Attached hereto as Exhibit 272 is a true and correct copy of The Nickname Controversy, Washington Times, introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00844 and transmitted to this Court as A1175.
278. Attached hereto as Exhibit 273 is a true and correct copy of B. Alexander Jr., Why This Football Lover Passed Up the Super Bowl, Wash. Post (Feb. 23, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00850 and transmitted to this Court as A1181. Attached is a plain text copy, Bates numbered EDVA-DEF-0000076-78.
279. Attached hereto as Exhibit 274 is a true and correct copy of Les Suzukamo, Indians Plan Super Protest of Redskins Name, Saint Paul Pioneer Press (Jan. 22, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00851 and transmitted to this Court as A1182.
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Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 48 of 50 PageID# 1268
280. Attached hereto as Exhibit 275 is a true and correct copy of Dick Heller and Tom Knott, Should the Redskins Change Their Name?, Washington Times (Mar. 4, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00856-57 and transmitted to this Court as A1178-88. Attached is a more legible and more complete copy, Bates numbered EDVA-DEF-0000083-85.
281. Attached hereto as Exhibit 276 is a true and correct copy of B. Molinaro, Please, Stop Calling Them ‘Redskins’, Virginian-Pilot (Oct. 4, 1992), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-00861-62 and transmitted to this Court as A192-93.
282. Attached hereto as Exhibit 277 is a true and correct copy of D. Matheny, The Year of a Super Bowl, a Final 4 and a ‘Hugedale’, Star Tribune (Dec. 31, 1992) (with photograph), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01133 and transmitted to this Court as A1473.
283. Attached hereto as Exhibit 278 is a true and correct copy of excerpts from the “Official 1983 Team Yearbook,” introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01429-32 and transmitted to this Court as A1796-1800.
284. Attached hereto as Exhibit 279 is a true and correct copy of photographs of fans with face paint and feathered headbands, from GAMEDAY Program (Nov. 27, 1983), introduced into the Blackhorse record before the T.T.A.B. at BLA-TTAB-01440 and transmitted to this Court as A1807.
285. Attached hereto as Exhibit 280 is a true and correct copy of excerpts from the deposition of John Kent Cooke on March 26, 1996.
- 47 -

Case 1:14-cv-01043-GBL-IDD Document 71-1 Filed 02/26/15 Page 49 of 50 PageID# 1269

286.

Attached hereto as Exhibit 281 is a true and correct copy of excerpts

from Hearings before the Subcomm. on Trademarks Comm. on Patents, House of

Representatives, 76th Cong. 1st Sess. (March 28, 29 and 30, 1939).

287.

Attached hereto as Exhibit 282 is a true and correct copy of excerpts from

Hearings before the Subcomm. on Trademarks Comm, on Patents, House of Representatives,

77th Cong., 1st Sess. (Nov. 4, 12, 13 and 14, 1941).

288.

Attached hereto as Exhibit 283 is a true and correct copy of excerpts from

H. Rep. No. 2283 (77th Cong. 2d Sess.) (June 25, 1942).

289.

Attached hereto as Exhibit 284 is a true and correct copy of excerpts from

Hearings before the Comm. on Patents, House of Representatives, 78th Cong., 1st Sess. (Apr.

7-8, 1943).

290.

Attached hereto as Exhibit 285 is a true and correct copy of excerpts from

Hearings before the Subcomm. of the Comm. on Patents, 78th Cong., 2d Sess. (Nov. 15-16,

1944).

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Case 1:14-cv-01043-GBL-IDD Document 71-2 Filed 02/26/15 Page 1 of 7 PageID# 1271
EXHIBIT B

Case 1:14-cv-01043-GBL-IDD Document 71-2 Filed 02/26/15 Page 2 of 7 PageID# 1272

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

PRO-FOOTBALL, INC.,
Plaintiff,
v.
AMANDA BLACKHORSE, MARCUS BRIGGS-CLOUD, PHILLIP GOVER, JILLIAN PAPPAN and COURTNEY TSOTIGH,
Defendants.

Civil Action No.: 1:14-cv-1043-GBL-IDD

DECLARATION OF RAYMOND D. APODACA 1. My name is Raymond D. Apodaca. The facts stated in this declaration are true and correct and based on my personal knowledge. 2. I was born on October 15, 1946, am an enrolled member of the federally recognized Ysleta Del Sur Pueblo, and grew up in Las Cruces, New Mexico, near the reservation of my tribe. 3. In 1969, I received my undergraduate degree in Government and, in 1976, I received a Master’s degree in Government/Public Administration, both from New Mexico State University (“NMSU”). While attending NMSU, both in 1965-69 and 1974-76, I was active with the Native American Students Association (“NMSU-NASA”). As a graduate student, I served on the board of directors of the NMSU-NASA, including a term as President during the 1975-76 school year. I served in the United States Air Force from 1969 until December 1972, when I was honorably discharged.

Case 1:14-cv-01043-GBL-IDD Document 71-2 Filed 02/26/15 Page 3 of 7 PageID# 1273
4. I have served in numerous employed, volunteer, and elected positions in the Native American community. From 1976-1977, I served as Education Director for the Yselta Del Sur Pueblo. From 1977-1982, I served as the Texas Indian Commission (an agency of the State of Texas) Reservation Superintendent (state trust officer and program administrator) for the Tigua Indian Reservation. From 1982-1989, I served as Executive Director of the Texas Indian Commission. From 1989-1991, I was the Tribal Planner for the Ysleta Del Sur Pueblo.
5. From 1991-1992, I was the Tribal Administrator for the Ysleta Del Sur Pueblo. At the time, the Tribal Administrator was the highest administrative role within the tribe, overseeing its day-to-day operations. Simultaneously, I was elected for three consecutive terms as the Tribal Governor for the Yselta Del Sure Pueblo, from 1990-1992. Tribal Governor is the highest executive role of the tribe and the equivalent of other tribes’ Tribal Chairman or Chief. I have remained an active member of my tribe throughout my life.
6. From 1973 to the present day, I have been an active member of the National Congress of American Indians (“NCAI”).
7. NCAI is the oldest and the preeminent Native American organization, representing the majority of Native Americans on a variety of political, cultural, and social policy issues. I have served in a number of leadership roles for NCAI, including as Chairman of the NCAI Commission on Human Rights and Religious and Cultural concerns, from 1986-1999, and as Albuquerque Area Vice President for two consecutive, two-year terms, from 1990-1993.
8. An Area Vice President is a delegate to the NCAI Executive Council. The Executive Council is made up of the President, First Vice President, Secretary, Recording Treasurer, and 11-12 Area Vice Presidents. The Executive Council is charged with identifying policy matters and issues to be brought before the body of NCAI, to set NCAI goals, and to
2

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administer NCAI affairs. The “areas” of NCAI mirror the 11-12 organizational regions of the Bureau of Indian Affairs. Each Area Vice President represents the tribes within his or her region. As Albuquerque Area Vice President, I represented the NCAI member tribes located in New Mexico, Colorado, and West Texas.
9. NCAI membership has both tribes as members, as well as individual membership. The entirety of the membership is known as the General Assembly, which reviews and votes on resolutions, position papers, and other matters of NCAI. These General Assembly meetings usually occur at NCAI annual and semi-annual conferences. Each individual member receives one vote. Each tribal member receives a number of votes based on population. For example, the Navajo or Cherokee Nations would receive more votes than tribes with smaller populations. Although General Assembly meetings are open to the public, only voting members, tribal or individual, are permitted to cast a vote.
10. One of the matters on which the General Assembly may vote is the passing of resolutions. An NCAI resolution identifies and memorializes the position of NCAI on any given issue. A final resolution reflects the assimilation of the various drafts of the committees charged with reviewing the resolution.
11. NCAI is one of a number of organizations interested in Native American issues. The National Indian Youth Council (“NIYC”) is a youth organization advocating and promoting a positive experience for Native American youth. The American Indian Movement (“AIM”) is a group of Indian activists formed in the 1960s, actively advocating for national and international changes to Native American policies. The National Tribe Chairmen Association (“NTCA”) is a defunct organization consisting of a group of tribal chairmen.
3

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12. Of these organizations, NCAI is the most representative and has been so since at least the late 1960s. Through its tribal memberships, NCAI represents the majority of Native Americans in federally recognized Native American tribes. If one wanted to know the consensus position of Native Americans on a given issue, NCAI would be the best organization to consult.
13. I have addressed many Native American issues over my career, including protection of religious practices, promoting effective educational policies, and identifying solutions to widespread poverty. Among these matters, the use of terms and images offensive to Native Americans has been an important one, particularly the use of the term “redskin” by the Washington football team. The term “redskin,” whether as a term in everyday use or as a name for a football team, is derogatory, disparaging, and demeaning to Native Americans.
14. My understanding of the term “redskin” comes from my own personal experience, growing up in the 1960s and 1970s in the Southwest. I understood growing up that the term “redskin” was a racial slur against Native Americans. I formed that understanding in the same from the daily use of the English language by me and the people around me, from the media, and from reading.
15. I have heard the term “redskin” or “redskins” used on many occasions to refer to Native Americans in a disparaging way. In one very memorable occasion, when I was in high school, I was at a bus stop in Lubbock, Texas, which had racially segregated lunch counters. At that time, I was told that I was “a redskin” and that I would need to eat my lunch outside the bus stop, and leave through the door marked “Black,” as opposed to sitting at the “White,” “Mexican,” or “Other” counter. On another occasion, while attending a dinner at a National Indian Education Association conference in the 1970s in Minneapolis, Minnesota, my colleagues
4

Case 1:14-cv-01043-GBL-IDD Document 71-2 Filed 02/26/15 Page 6 of 7 PageID# 1276 and I were called “disgruntled Redskins” by a fellow dinner patron when we objected to an inappropriate, racially-charged song specifically “dedicated” to us by the dinner band. 16. The majority of Native American individuals in my circle of acquaintances, friends, and family share my understanding that “redskin” is derogatory. 17. I do not see a difference between the use of the term on an individual level or its use as the name of the Washington football team.
5

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EXHIBIT C

Case 1:14-cv-01043-GBL-IDD Document 71-3 Filed 02/26/15 Page 2 of 8 PageID# 1279

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

PRO-FOOTBALL, INC.,
Plaintiff,
v.
AMANDA BLACKHORSE, MARCUS BRIGGS-CLOUD, PHILLIP GOVER, JILLIAN PAPPAN and COURTNEY TSOTIGH,
Defendants.

Civil Action No.: 1:14-cv-1043-GBL-IDD

DECLARATION OF LEON COOK 1. My name is Leon Cook. The facts stated in this declaration are true and correct and based on my personal knowledge. 2. I was born on July 30, 1939, am an enrolled member of the Red Lake Band of Chippewa Indians, and grew up on the Red Lake Chippewa reservation in Red Lake, Minnesota. 3. I received a Bachelor’s degree in Psychology from St. John’s University in Minnesota in 1963 and a Master’s degree in Social Work from the University of Minnesota in 1966. After graduate school, I first worked for the Anti-Poverty Programs in Minneapolis and Duluth, Minnesota. From 1968 to 1970, I worked for the U.S. Economic Development Administration in Phoenix, Arizona. In 1970, I moved to Washington, D.C., and worked for the Bureau of Indian Affairs, until 1971. 4. I have remained an active member of the Native American community throughout my life. I have served as Director of Indian Education for the Minneapolis Public Schools; as Tribal Council Representative for the Red Lake Nation, an elected member of the tribal

Case 1:14-cv-01043-GBL-IDD Document 71-3 Filed 02/26/15 Page 3 of 8 PageID# 1280
governing council; as Tribal Administrator for the Red Lake Nation; and as Human Resources Director for the Red Lake Nation. Although I am retired, today I continue to actively volunteer my time to the Red Lake Nation.
5. Beginning in 1966, I have been and remain an active member and participant in the National Congress of American Indians (“NCAI”). NCAI is the oldest and the preeminent Native American organization, founded in 1944 in order to, among other thing, secure and preserve American Indian sovereign rights under treaties and agreements with the United States, to promote and enhance the quality of life of American Indian people, and to educate the general public regarding American Indian people and rights. NCAI represents its individual and tribal members, on a variety of political, cultural, and social policy issues.
6. I was elected President of NCAI in November of 1971. While I was President, NCAI had approximately 150 tribal members; those tribes constituted a majority of the Native American population. During my deposition, I stated that NCAI had at least 100 tribes as members during my tenure. Having considered the question further, I now believe 150 is a more accurate count.
7. I was elected President by the NCAI membership at the annual conference in 1971. At the annual conference in November 1971, I was nominated as a candidate and elected by an overwhelming majority of tribal and individual members. Under NCAI voting rules, votes for tribes are apportioned by population – the bigger the tribe the greater total number of votes. Individual members receive only one vote. The tribal members, representing thousands of Native Americans, almost unanimously voted in favor of my election.
8. As NCAI President, I led the NCAI Executive Council, a representative body made up of 15-16 individuals: President, First Vice President, Secretary, Recording Treasurer,
2

Case 1:14-cv-01043-GBL-IDD Document 71-3 Filed 02/26/15 Page 4 of 8 PageID# 1281
and 11 Regional Vice Presidents representing 11 regions around the United States. These regions cover all of the federally recognized tribes and the 11 Regional Vice Presidents represent the tribes of their respective regions. The Executive Council identifies issues of concern to the Native Americans membership and develops strategies to address those issues.
9. At the January 1972 NCAI Executive Council meeting, I led a discussion about the issues that NCAI sought to prioritize for the coming year. I invited representatives of a number of other Native American organizations to attend, including the American Indian Movement (“AIM”), the National Indian Youth Council (“NIYC”), and the Americans for Indian Opportunity (“AIO”).
10. At the time of my election as NCAI President, NCAI, NIYC, AIO and AIM had disparate priorities and goals with regard to Native American issues. NCAI’s priority was to act as one voice for the Native American population on political, social, and cultural matters. NIYC was focused on improving the educational and social experience of Native American youth. AIO was focused on promoting economic opportunities for Native Americans. AIM was an organization that took a more radical and confrontational approach to Native American issues. I felt that we could all be more effective if the different organizations cooperated and worked together more. In an effort to unite these different organizations around a common cause, I proposed at the January 1972 NCAI Executive Council meeting that the organizations identify an issue on which they shared a common interest. Each of the members of the 1972 NCAI Executive Council and the leaders of the other organizations agreed that the Washington football team’s name was bigoted, discriminatory, and offensive to Native Americans. And all agreed that opposing the Washington football team’s name, and seeking a change in that name, would be the first issue on which we could unite in a common effort. Accordingly, all members of the
3

Case 1:14-cv-01043-GBL-IDD Document 71-3 Filed 02/26/15 Page 5 of 8 PageID# 1282
NCAI Executive Council and the other organizations agreed that opposition to offensive characterizations of Native Americans should be the top priority, starting with efforts to bring about a change in the name of the Washington NFL team. At the meeting, it was decided that the next step would be to contact the Washington football team directly to begin a dialogue aimed at changing the team’s name, as well as other insensitive depictions of Native Americans by the team.
11. Through the efforts of Harold Gross, an attorney who worked with NCAI and who, at that time, headed the Indian Legal Information Development Service (“ILIDS”), a meeting was set between the various Native American organizations and the Washington football team. Mr. Gross wrote to the Washington football team’s then-President Edward Bennett Williams, explaining that Native Americans understood the name to be a racial epithet and identical in character to other racial slurs leveled against other minorities. After Mr. Gross sent the letter, a meeting was held in March 1972. I attended on behalf of NCAI, with the knowledge and support of the NCAI Executive Council. Also in attendance were LaDonna Harris, the President of AIO; Ron Aguila, the District Representative for NIYC; Dennis Banks, the District Representative for AIM; Hanay Geigomah, the Director of Youth Programs for the Bureau of Indian Affairs; Richard LaCourse, the Washington bureau chief for the American Indian Press Association; and Laura Wittstock, Editor of the ILIDS Legislative Review, as well as some others. The Washington football team was represented by Edward Bennett Williams.
12. At the meeting, each of the leaders of the various organizations took turns explaining our united reason as to why the Washington football team’s name should be changed, namely that we all believed the name to be discriminatory, demeaning, and offensive to Native Americans. As President of NCAI, I was representing the entire membership in our opposition to
4

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the name. Although Mr. Williams did not at first appear to be receptive to our message, by the end of the meeting, we believe he understood our sincere view that the team name was deeply offensive.
13. Although Mr. Williams refused to change the name after this meeting, he did have the football team’s cheerleader costumes altered to remove the fake Cherokee hair extensions and the team also changed the lyrics of its fight song to eliminate certain stereotypical and language.
14. At the 1973 NCAI annual conference in Tulsa, Rueben Snake, the Chairman of the Winnebago tribe and a delegate to the convention on behalf of his tribe, introduced a resolution before the NCAI General Assembly calling for the Washington football team to change its offensive and discriminatory name. The General Assembly enthusiastically voted in favor of Mr. Snake’s resolution.
15. After my tenure as President of NCAI ended in 1973, NCAI maintained its opposition to the Washington team’s name. To my knowledge, NCAI never changed its views toward the Washington team name and even formalized its opposition in resolutions in the early 1990s.
16. Throughout my life, I have maintained my opposition to the Washington football team’s name. I believe that use of the term “redskin” in any context – professional athletics or otherwise – is derogatory, disparaging, and demeaning to Native Americans. Over the last 40 years of my involvement in the Native American community and my active opposition to the Washington team name, I have met and associated with thousands of Native Americans. As President and as Past President of NCAI, a leader within my own tribe, and a leader within the Native American community in Minnesota, I have traveled extensively throughout Indian
5

Case 1:14-cv-01043-GBL-IDD Document 71-3 Filed 02/26/15 Page 7 of 8 PageID# 1284 country, met with Native American leaders on dozens of reservations, and talked with Native Americans from all walks of life. I have only rarely encountered a Native American who has expressed disagreement with my understanding that the Washington football team’s name is disparaging, discriminatory, and offensive to Native Americans.
6

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EXHIBIT D

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Case 1:14-cv-01043-GBL-IDD Document 71-4 Filed 02/26/15 Page 3 of 6 PageID# 1288

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Case 1:14-cv-01043-GBL-IDD Document 71-4 Filed 02/26/15 Page 5 of 6 PageID# 1290
Exhibit A
To Gover Declaration

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Case 1:14-cv-01043-GBL-IDD Document 71-5 Filed 02/26/15 Page 1 of 9 PageID# 1292
EXHIBIT E

Case 1:14-cv-01043-GBL-IDD Document 71-5 Filed 02/26/15 Page 2 of 9 PageID# 1293

Case 1:14-cv-01043-GBL-IDD Document 71-5 Filed 02/26/15 Page 3 of 9 PageID# 1294

Case 1:14-cv-01043-GBL-IDD Document 71-5 Filed 02/26/15 Page 4 of 9 PageID# 1295

Case 1:14-cv-01043-GBL-IDD Document 71-5 Filed 02/26/15 Page 5 of 9 PageID# 1296

Case 1:14-cv-01043-GBL-IDD Document 71-5 Filed 02/26/15 Page 6 of 9 PageID# 1297

Case 1:14-cv-01043-GBL-IDD Document 71-5 Filed 02/26/15 Page 7 of 9 PageID# 1298

Case 1:14-cv-01043-GBL-IDD Document 71-5 Filed 02/26/15 Page 8 of 9 PageID# 1299

Case 1:14-cv-01043-GBL-IDD Document 71-5 Filed 02/26/15 Page 9 of 9 PageID# 1300

 
 Case 1:14-cv-01043-GBL-IDD Document 79 Filed 03/19/15 Page 1 of 3 PageID# 2891

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

PRO-FOOTBALL, INC., Plaintiff,

Civil Action No. 1:14-cv-1043-GBL-IDD

v.

AMANDA BLACKHORSE, MARCUS BRIGGS-CLOUD, PHILLIP GOVER, JILLIAN PAPPAN, and COURTNEY TSOTIGH,

Defendants,

and UNITED STATES OF AMERICA,
Intervenor.

PRO-FOOTBALL, INC.’S CROSS-MOTION FOR SUMMARY JUDGMENT ON CLAIMS I, II, AND VII
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiff Pro-Football, Inc. (“PFI”) cross-moves the Court to enter summary judgment in its favor on Claims I, II, and VII of its Complaint [Dkt. 1]. The grounds and reasons for granting this relief are stated with particularity in PFI’s accompanying Memorandum of Law (which also is in opposition to Defendants’ motion for summary judgment [Dkt. 69]) and the accompanying declarations of Jessica Rose, Esq., Bruce Allen, David Barnhart, Hart Blanton, Ronald Butters, and Jacob Jacoby, and the exhibits thereto.

Case 1:14-cv-01043-GBL-IDD Document 79 Filed 03/19/15 Page 2 of 3 PageID# 2892

Dated: March 19, 2015

Respectfully submitted,
/s/ Craig C. Reilly Craig C. Reilly, Esq. (VSB # 20942) craig.reilly@ccreillylaw.com THE LAW OFFICE OF CRAIG C. REILLY 111 Oronoco Street Alexandria, Virginia 22314 Tel: (703) 549-5354 Fax: (703) 549-5355
Robert L. Raskopf (pro hac vice) robertraskopf@quinnemanuel.com Todd Anten (pro hac vice) toddanten@quinnemanuel.com Claudia T. Bogdanos (pro hac vice) claudiabogdanos@quinnemanuel.com Jessica A. Rose (pro hac vice) jessicarose@quinnemanuel.com Jennifer D. Bishop (pro hac vice) jenniferbishop@quinnemanuel.com QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Tel: (212) 849-7000 Fax: (212) 849-7100
Counsel for Plaintiff Pro-Football, Inc.

- 2 -

Case 1:14-cv-01043-GBL-IDD Document 79 Filed 03/19/15 Page 3 of 3 PageID# 2893
CERTIFICATE OF SERVICE
I hereby certify that on March 19, 2015, I caused the foregoing pleading or paper to be filed
and served electronically by the Court’s CM/ECF system upon all registered users in this action:
/s/ Craig C. Reilly Craig C. Reilly, Esq. (VSB # 20942) craig.reilly@ccreillylaw.com THE LAW OFFICE OF CRAIG C. REILLY 111 Oronoco Street Alexandria, Virginia 22314 Tel: (703) 549-5354 Fax: (703) 549-5355 Counsel for Plaintiff

 
 Case 1:14-cv-01043-LO-IDD Document 105 Filed 03/23/15 Page 1 of 3 PageID# 4929

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

PRO-FOOTBALL, INC.,
Plaintiff,
v.
AMANDA BLACKHORSE, MARCUS BRIGGS-CLOUD, PHILLIP GOVER, JILLIAN PAPPAN and COURTNEY TSOTIGH,
Defendants.

Civil Action No.: 1:14-cv-1043-GBL-IDD

DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNTS 3 THROUGH 6 COME NOW, pursuant to Federal Rule of Civil Procedure 56, Local Civil Rule 56, and this Court’s Scheduling Order, Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan, and Courtney Tsotigh, by and through counsel, and hereby respectfully move this Court for partial Summary Judgment on Counts 3 through 6 of Plaintiff Pro-Football, Inc.’s Complaint. Defendants respectfully direct the Court’s attention to their Memorandum In Support Of Their Motion For Partial Summary Judgment On Counts 3 Through 6 And In Opposition To Plaintiff’s Motion For Summary Judgment On Constitutional Claims III-VI and Exhibits thereto, submitted in support of this Motion. WHEREFORE, for the reasons above and provided in Defendants’ Memorandum, Defendants respectfully pray that the Court grant this Motion, enter the attached Proposed Order granting partial Summary Judgment in favor of Defendants, and to award to Defendants such other and further relief as the Court deems to be just and proper.

Case 1:14-cv-01043-LO-IDD Document 105 Filed 03/23/15 Page 2 of 3 PageID# 4930

Dated: March 23, 2015.

Respectfully submitted,
/s/ Jeffrey J. Lopez Jesse A. Witten (pro hac vice) Jeffrey J. Lopez (VA Bar No. 51058) Adam Scott Kunz (VA Bar No. 84073) Tore T. Debella (VA Bar No. 82037) Jennifer T. Criss (VA Bar No. 86143) DRINKER BIDDLE & REATH LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 Telephone: (202) 842-8800 Facsimile: (202) 842-8465 Jesse.Witten@dbr.com Jeffrey.Lopez@dbr.com Adam.Kunz@dbr.com Tore.DeBella@dbr.com Jennifer.Criss@dbr.com
Counsel for Defendants Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh

Case 1:14-cv-01043-LO-IDD Document 105 Filed 03/23/15 Page 3 of 3 PageID# 4931

CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of March, 2015, the foregoing pleading or paper was filed and served electronically by the Court’s CM/ECF system upon all registered users in this action:

/s/ Jeffrey J. Lopez

Jeffrey J. Lopez

DRINKER BIDDLE & REATH LLP

1500 K Street, N.W., Suite 1100

Washington, D.C. 20005-1209

Telephone: (202) 842-8800

Facsimile: (202) 842-8465

Email:

Jeffrey.Lopez@dbr.com

Counsel for Defendants Amanda Blackhorse,

Marcus Briggs-Cloud, Phillip Gover, Jillian

Pappan and Courtney Tsotigh

 
 Case 1:14-cv-01043-LO-IDD Document 108 Filed 03/23/15 Page 1 of 3 PageID# 5058

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

PRO-FOOTBALL, INC., Plaintiff,
v. AMANDA BLACKHORSE, et al.,
Defendants.

) ) ) ) Civil Action No. 1:14-cv-1043 (GBL/IDD) ) ) ) ) )

UNITED STATES’ MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56, the United States’ January 9, 2015 Notice of Intervention to Defend the Constitutionality of a Federal Statute, ECF No. 46, and the Court’s January 26, 2015 Order, the United States hereby moves the Court to enter summary judgment in favor of the United States and against Pro-Football, Inc. (PFI) on PFI’s claims that Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), is unconstitutional.1

///

///

1 As the Court correctly recognized at the January 22, 2015 scheduling conference, “courts should avoid deciding constitutional questions unless they are essential to the disposition of a case.” Bell Atlantic, Md. v. Prince George’s Cty., Md., 212 F.3d 863, 865 (4th Cir. 2000); see Califano v. Yamasaki, 442 U.S. 682 (1979) (“Due respect for the coordinate branches of government . . . counsels against unnecessary constitutional adjudication.”); Ashwander v. TVA, 297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring) (explaining the importance of the “series of rules under which [the Court has] avoided passing upon a large part of all the constitutional questions pressed upon it for decision.”). Because resolution of the merits of this case may obviate any need to decide the constitutional issues, the United States urges that resolution of this motion, and the parties’ constitutional motions, ECF Nos. 54 & 106, be deferred until after the Court decides the merits issues.

Case 1:14-cv-01043-LO-IDD Document 108 Filed 03/23/15 Page 2 of 3 PageID# 5059

Dated: March 23, 2015

Respectfully submitted,
BENJAMIN C. MIZER Acting Assistant Attorney General
DANA J. BOENTE United States Attorney
/s/ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Ave. Alexandria, Virginia 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: Dennis.Barghaan@usdoj.gov
JOHN R. GRIFFITHS Branch Director ERIC R. WOMACK Assistant Branch Director ERIC J. SOSKIN (PA Bar 200663) Senior Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 Tel: (202) 353-0533 Fax: (202) 305-2685 Email: Eric.Soskin@usdoj.gov
Attorneys for the United States

Case 1:14-cv-01043-LO-IDD Document 108 Filed 03/23/15 Page 3 of 3 PageID# 5060

CERTIFICATE OF SERVICE
I hereby certify that on the 23rd day of March, 2015, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:
Jesse A. Witten Jeffrey J. Lopez Adam Scott Kunz Tore T. DeBella Jennifer Criss DRINKER BIDDLE & REATH LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 Email: Jesse.Witten@dbr.com; Jeffrey.Lopez@dbr.com; Adam.Kunz@dbr.com; Tore.DeBella@dbr.com; Jennifer.Criss@dbr.com
Craig C. Reilly, Esq. THE LAW OFFICE OF CRAIG C. REILLY
111 Oronoco Street Alexandria, Virginia 22314 Email: craig.reilly@ccreillylaw.com

Date: March 23, 2015

/s/ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Ave. Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: Dennis.Barghaan@usdoj.gov
Attorneys for the United States

Case 1:14-cv-01043-GBL-IDD Document 109 Filed 03/23/15 Page 1 of 42 PageID# 5061

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

PRO-FOOTBALL, INC., Plaintiff,
v. AMANDA BLACKHORSE, et al.,
Defendants.

) ) ) ) Civil Action No. 1:14-cv-1043 (GBL/IDD) ) ) ) ) )

UNITED STATES’ MEMORANDUM OF LAW IN OPPOSITION TO PFI’S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF THE UNITED STATES’ MOTION FOR SUMMARY JUDGMENT

Dated: March 23, 2015
BENJAMIN MIZER Acting Assistant Attorney General JOHN R. GRIFFITHS Branch Director ERIC WOMACK Assistant Branch Director ERIC J. SOSKIN (PA Bar 200663) Senior Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 Tel: (202) 353-0533 Fax: (202) 305-2685 Email: Eric.Soskin@usdoj.gov Attorneys for the United States

DANA J. BOENTE United States Attorney
DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Ave. Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: Dennis.Barghaan@usdoj.gov

Case 1:14-cv-01043-GBL-IDD Document 109 Filed 03/23/15 Page 2 of 42 PageID# 5062
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
RESPONSE TO STATEMENT OF UNDISPUTED FACTS........................................................ 2
BACKGROUND ............................................................................................................................ 2
LEGAL STANDARD..................................................................................................................... 5
ARGUMENT .................................................................................................................................. 6
I. The Lanham Act’s Limits Do Not Implicate the First Amendment. .................................. 6
A. Denial of trademark registration does not restrict speech or otherwise create a burden cognizable under the First Amendment. ....................... 7
B. The Trademark Registration Statute Appropriately Excludes Flags, Names, Merely Descriptive and Immoral Terms, and Other Matter That the Common Law Generally Did Not Recognize As Subjects For Trademark Protection. .................................................................................... 11
C. Setting the Terms on Participation in Voluntary Programs Does Not Offend the First Amendment or Create an Unconstitutional Condition on Speech. ............................................................................................ 14
II. Even Assuming that the Program of Federal Trademark Registration Implicates Speech or Expression, Section 2(a) Is Constitutional. .................................... 16
A. The Court Cannot Disregard the Government’s Role in Any Such Expressive Aspects of Trademark Registration. ................................................... 16
B. If Analyzed Under the Fourth Circuit’s Treatment of Hybrid Speech as Occurring in a Limited Public Forum, Section 2(a) is Constitutional........................................................................................................ 17
C. Even Assuming PFI Is Correct that Its Challenge Should Be Analyzed as a Restriction on Commercial Speech, the Trademark Statute Is Constitutional. ....................................................................................... 19
III. Section 2(a)’s Exclusion of Disparaging Trademarks is Not Impermissibly Vague. ............................................................................................................................... 24
IV. The Lanham Act’s Cancellation Procedure Does Not Violate the Fifth Amendment....................................................................................................................... 26
CONCLUSION............................................................................................................................. 30
i

Case 1:14-cv-01043-GBL-IDD Document 109 Filed 03/23/15 Page 3 of 42 PageID# 5063
TABLE OF AUTHORITIES
Federal Cases Adolph Kastor & Bros. v. FTC, 138 F.2d 824 (2d Cir. 1943).......................................................................................................... 14 American Meat Institute v. USDA,,
968 F. Supp. 2d 38 (D.D.C. 2013), ........................................................................................... 10 Am. Meat Inst. v. USDA.,
760 F.3d 18 (D.C. Cir. 2014) ................................................................................................... 25 Bajwa v. Sunoco,
320 F. Supp. 2d 454 (E.D. Va. 2004) ....................................................................................... 28 Bd. of Regents v. Roth,
408 U.S. 564 (1972)............................................................................................................ 29, 30 Bodum USA v. La Cafeterie,
621 F.3d 624 (7th Cir. 2010) .................................................................................................... 31 Brown v. Town of Cary,
706 F.3d 294 (4th Cir. 2013) .............................................................................................. 26, 27 Bullfrog Films v. Wick
847 F.2d 502 (9th Cir. 1988) ...................................................................................................... 8 California v. Cabazon Band of Mission Indians,
480 U.S. 202 (1987).................................................................................................................. 22 Carlson v. Green,
446 U.S. 14 (1980).................................................................................................................... 23 Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm.. of NY,
447 U.S. 557 (1980)...................................................................................................... 20, 23, 24 City of Lakewood v. Plain Dealer Pub. Co.,
486 U.S. 750 (1988)............................................................................................................ 25, 26 City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41 (1986).................................................................................................................... 10 City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989).................................................................................................................. 22 Clatterbuck v. Charlottesville,
708 F.3d 549 (4th Cir. 2013) .................................................................................................... 19 Cnty. of Allegheny v. ACLU,
492 U.S. 573 (1989).................................................................................................................. 22 Coates v. City of,Cin.,
402 U.S. 611 (1971).................................................................................................................. 26 College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666 (1999).................................................................................................................. 30 Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd.,
604 F.2d 200 (2d Cir. 1979)...................................................................................................... 23 Dambro v. Cent. Mich. U.,
55 F.3d 1177 (6th Cir. 1995) .................................................................................................... 26 Dastar Corp. v. 20th Century Fox Film Corp.,
539 U.S. 23 (2003)...................................................................................................................... 8
ii

Case 1:14-cv-01043-GBL-IDD Document 109 Filed 03/23/15 Page 4 of 42 PageID# 5064
Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262 (5th Cir. 2012) .................................................................................................... 30
Dental Prods. v. Darby Dental Supply Co., 794 F.2d 850 (3d Cir. 1986)...................................................................................................... 31
Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985).................................................................................................................. 10
Dwinell-Wright Co. v. Nat'l Fruit Product Co., Inc., 129 F.2d 848 (1st Cir. 1942)............................................................................................. 12
Edison v. Thomas A. Edison,, 128 F.3d 1013 (C.C. Del. 1904)................................................................................................ 12
Educational Media Co. at Virginia Tech, Inc. v. Insley, 731 F.3d 291 (4th Cir. 2013) .............................................................................................. 20, 23
Empresa Cubana Exportadora v. Dep't of Treasury, 606 F. Supp. 2d 59 (D.D.C. 2009) ............................................................................................ 28
FEC v. Intl' Funding Instit., 969 F.2d 1110 (D.C. Cir. 1992) .................................................................................................... 15 First English Evangelical Lutheran Church v. Los Angeles County,
482 U.S. 304 (1987).................................................................................................................. 29 Fowle v. Spear,
9 F. Cas. 611 (C.C. Pa. 1847) ................................................................................................... 13 Friedman v. Rogers,
440 U.S. 1 (1979)................................................................................................................ 1, 6, 8 FW/PBS, Inc. v. Dallas,
493 U.S. 215 (1990).................................................................................................................... 6 Gantt v. Security, USA,
356 F.3d 547 (4th Cir. 2004) .................................................................................................... 28 Giovani Carandola Ltd. v. Fox,
470 F.3d 1074 (4th Cir. 2006) .................................................................................................. 26 Glynn v. EDO Corp.,
710 F.3d 209 (4th Cir. 2013) ...................................................................................................... 6 Grayned v. Rockford,
408 U.S. 104 (1972).................................................................................................................. 25 Hanky v. City of Richmond,
532 F. Supp. 1298 (E.D. Va. 1982) .......................................................................................... 25 Harrell v. Florida Bar,
915 F. Supp. 2d at 1295 ...................................................................................................... 26, 27 Harrods, LTD. v. Sixty Internet Domain Names,
302 F.3d 214 (4th Cir. 2002) .............................................................................................. 3, 5, 9 Hearts Bluff Game Ranch, Inc. v. U.S.,
669 F.3d 1326 (Fed. Cir. 2012)................................................................................................. 30 Hercules Powder Co. v. Newton,
266 F. 169 (2d Cir. 1920).......................................................................................................... 19 Hightower v. City of Boston,
693 F.3d 61 (1st Cir. 2012) ....................................................................................................... 31 Hill v. Colorado,
530 U.S. 703 (2000).................................................................................................................. 26
iii

Case 1:14-cv-01043-GBL-IDD Document 109 Filed 03/23/15 Page 5 of 42 PageID# 5065
Hoover Co. v. Royal Appliance Mfg. Co., 238 F.3d 1357 (Fed. Cir. 2001)................................................................................................. 19
In re Boulevard Entertainment, 334 F.3d 1336 (Fed. Cir. 2003)................................................................................................... 6
In re City of Houston, 731 F.3d 1326 (Fed. Cir. 2013)................................................................................................. 14
In re Conklin, 946 F.2d 306 (4th Cir. 1991) .................................................................................................... 22
In re Fox, 702 F.3d 633 (Fed. Cir. 2012)..................................................................................................... 6
In re Int'l Flavors & Fragrances, 183 F.3d 1361 (Fed. Cir. 1999)................................................................................................. 30
In re Holiday Inn, 534 F.2d at 320 ......................................................................................................................... 31
In re John F. Tolle,, 2 O.G. 415 (Oct. 8, 1872) ......................................................................................................... 13
In re Mavety Media Grp., 33 F.3d at 1374 ..................................................................................................................... 6, 24
In re McGinley, 660 F.2d 481 (CCPA, 1981) ........................................................................................... 6, 7, 8, 9
Internat'l Food & Beverage Sys. v. City of Ft. Lauderdale, 794 F.2d 1520 (11th Cir. 1986) .................................................................................................. 9
Inwood Labs. v. Ives Labs., 456 U.S. 844 (1982).............................................................................................................. 4, 12
Iota Xi Chapter, Sigma Chi Fraternity v. Patterson, 566 F.3d 138 (4th Cir. 2009) .................................................................................................... 29
Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005) .................................................................................................... 14
Legal Aid of Oregon v. Legal Svcs. Corp., 608 F.3d 1084 (9th Cir. 2010) .................................................................................................. 16
Legal Servs. Corp v. Velazquez, 531 U.S. 533 (2001)............................................................................................................ 16, 20
Legend Night Club v. Miller, 637 F.3d 291 (4th Cir. 2011) .................................................................................................... 22
Lion Raisins, Inc. v. U.S., 416 F.3d 1356 ........................................................................................................................... 28
Lustgarten v. Felt & Tarrant Mfg. Co., 92 F.2d 277 (3d Cir. 1937)........................................................................................................ 14
Mathews v. Eldridge, 424 U.S. 319 (1976).................................................................................................................. 31
MicroStrategy, Inc. v. Motorola, 245 F.3d 335 (4th Cir. 2001) ...................................................................................................... 9
Mobin v. U.S., 22 Cl. Ct. 331 (Cl. Ct. 1991)..................................................................................................... 30
Morrison & Foerster v. Wick, 94 F. Supp. 2d 1125 (D. Colo. 2000)........................................................................................ 12
iv

Case 1:14-cv-01043-GBL-IDD Document 109 Filed 03/23/15 Page 6 of 42 PageID# 5066
Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003).................................................................................................................... 8
Mutual of Omaha Ins. Co. v. Novak, 836 F.2d 397 (8th Cir. 1987) .................................................................................................... 23
Name.Space v. Network Solutions, Inc., 202 F.3d 573 (2d Cir. 2000)...................................................................................................... 12
Nat'l A-1 Advert. v. Network Sol'ns., 121 F. Supp. 2d 156 (D.N.H. 2000)............................................................................................ 7
Nat'l Endowment for the Arts v. Finley, 524 U.S. 569 (1998)........................................................................................................ 6, 15, 25
Nemet Chevrolet, Ltd. v. Consumeraffairs.com., 564 F. Supp. 2d 544 (E.D. Va. 2008) ....................................................................................... 18
New Kids on the Block v. New America Publishing, 971 F.2d 302 (9th Cir. 1992) .................................................................................................. 2, 9
OBX-Stock, Inc. v. Bicast, Inc., 558 F.3d 334 (4th Cir. 2009) .................................................................................................... 23
Park N Fly, Inc. v. Dollar Park and Fly, 469 U.S. 189 (1985)........................................................................................................ 3, 27, 30
Passions Video, Inc. v. Nixon, 375 F. Supp. 2d 866 (W.D. Mo. 2005) ..................................................................................... 22
Patlex Corp. v. Mossinghoff, 758 F.2d 594 (Fed. Cir. 1985)................................................................................................... 30
PGMedia, Inc. v. Network Solutions, 51 F. Supp. 2d 389 (S.D.N.Y. 1999)......................................................................................... 12
Planned Parenthood Fed'n of America v. Bucci, 1997 WL 133313 (S.D.N.Y. Mar. 24, 1997), .......................................................................... 12
Planned Parenthood of S.C. v. Rose, 361 F.3d 786 (4th Cir. 2004) .................................................................................................... 17
Pro-Football Inc. v. Harjo, 2000 WL 1923326 ...................................................................................................................... 7
Pro-Football Inc. v. Harjo, 284 F. Supp. 2d 96 (D.D.C. 2003) ............................................................................................ 27
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992)...................................................................................................................... 19 Regan v. Taxation with Representation of Wash.,
461 U.S. 540 (1983)............................................................................................................ 15, 16 Renna v. County of Union, N.J.,
2014 WL 2435775 (D.N.J. 2014) ............................................................................................. 13 Ritchie v. Simpson,
170 F.3d at 1099 (Fed. Cir. 1999)........................................................................................... 6, 7 Rogers v. Grimaldi,
875 F.2d 994 (2d Cir. 1989)...................................................................................................... 14 Rosenberger v. Rector & Visitors of UVA,
515 U.S. 819 (1995)............................................................................................................ 18, 19 Roth v. King,
449 F.3d 1272 (D.C. Cir. 2006) ................................................................................................ 29
v

Case 1:14-cv-01043-GBL-IDD Document 109 Filed 03/23/15 Page 7 of 42 PageID# 5067
Rust v. Sullivan, 500 U.S. 173(1991)..................................................................................................... 6, 7, 15, 16
Ry. Labor Executives' Ass'n v. United States, 987 F.2d 806 (D.C. Cir. 1993) .................................................................................................. 29
S.C. Ed. Ass'n v. Campbell, 883 F.2d 1251 (4th Cir. 1989) ............................................................................................ 15, 16
Sambo's Restaurants v. Ann Arbor, 663 F.2d 686 (6th Cir. 1981) .................................................................................................... 21
San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee 483 U.S. 522 (1987)................................................................................................................... 27
Seymour v. U.S. ex. Rel. State of S.C., 2 App. D.C. 240 (Ct. App. D.C. 1894) .................................................................................... 4
Simon & Schuster v. N.Y. Crime Victims Bd., 502 U.S. 105 (1991).................................................................................................................. 10
Smith v. Goguen, 415 U.S. 566 (1974).................................................................................................................. 25
Sons of Confederate Veterans, Inc. ("SCV") v. Comm'n of Va. Dep't of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002) .................................................................................................... 17
South Corp v. U.S., 690 F.2d 1368 (Fed. Cir. 1982)................................................................................................... 6
Spartan Food Systems, Inc., v. HFS Corp., 813 F.2d 1279 (4th Cir. 1987) .................................................................................................. 13
Spence v. State of Wash., 418 U.S. 405 (1974).................................................................................................................. 14
Stone Lion Capital Partners, L.P. v. Lion Capital, LLP, 746 F.3d 1317 (Fed. Cir. 2014)................................................................................................. 10
Taubman Co. v. Webfeats, 319 F.3d 770 (6th Cir. 2003) .................................................................................................... 12
Test Masters Educ. Svcs. v. Singh, 428 F.3d 559 (5th Cir. 2005) ...................................................................................................... 7
Transportation Alternatives, Inc. v. City of New York, 218 F. Supp. 2d at 438 .............................................................................................................. 20
Truck Center v. Volvo White Truck Corp., 692 F.Supp. 1010 (W.D. Wis.1988) ......................................................................................... 28
Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992).................................................................................................................... 8
U.S. ex rel. Bronson Co. v. Duell, 17 App. D.C. 471 (Ct. App. D.C. 1901) ............................................................................... 4, 14
U.S. v. Edge Broadcasting, 509 U.S. 418 (1993).................................................................................................................. 24
U.S. v. Glenn, 562 F.2d 324 (4th Cir. 1977) .................................................................................................... 27
U.S. v. Hedaithy, 392 F.3d 580 (3d Cir. 2004)...................................................................................................... 31
U.S. v. Lanning, 723 F.3d 476 (4th Cir. 2013) .................................................................................................... 25
vi

Case 1:14-cv-01043-GBL-IDD Document 109 Filed 03/23/15 Page 8 of 42 PageID# 5068
U.S. v. Martinez, 736 F.3d 981 (11th Cir. 2013) .................................................................................................. 19
U.S. v. Morrison, 529 U.S. 598 (2000).................................................................................................................. 23
U.S. v. Philip Morris, 566 F.3d 1095 (D.C. Cir. 2009) ................................................................................................ 20
U.S. v. Sun, 278 F.3d 302 (4th Cir. 2002) .................................................................................................... 26
USAID v. Alliance for Open Society Int'l, 133 S. Ct. 2321 (2013) .............................................................................................................. 16
United Drug v. Theodore Rectanus Co., 248 U.S. 90 (1918).................................................................................................................... 30
United States v. Causby, 328 U.S. 256 (1946).................................................................................................................. 29
Va. State Bd. of Pharmacy, 425 U.S. at 770...................................................................................................................... 8, 21
Village of Hoffman Estates, 455 U.S. at 498.......................................................................................................................... 26
Visa, U.S.A. v. Birmingham Trust Nat'l Bank, 696 F.2d 1371 (Fed. Cir. 1982)................................................................................................. 30
Volkswagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d 812 (1st Cir. 1987) ............................................................................................... 5, 7, 9
Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205 (2000).............................................................................................................. 3, 23
Wash. St. Grange v. Wash St. Rep. Pty., 552 U.S. 442 (2008).................................................................................................................... 6
Whitney v. California, 274 U.S. 357 (1927).................................................................................................................. 14
Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985).................................................................................................................. 29
Wishnatsky v. Rovner, 433 F.3d 608 (8th Cir. 2006) .................................................................................................... 19
WV Ass'n of Club Owners and Fraternal Services v. Musgrave, 553 F.3d 292 (4th Cir. 2009) .............................................................................................. 17, 24
Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353 (2009)............................................................................................................ 15, 16
Zauderer v. Office of Discip. Counsel, 471 U.S. 626 (1985).................................................................................................................. 25
State Cases Flint v. Hutchinson Smoke-Burner Co.,
110 Mo. 492 (1892) .................................................................................................................. 14 Hennessy v. Wheeler,
51 How. Pr. 457 (C.C.P. N.Y. 1876) ........................................................................................ 13 In re Name Change Petition of Bethea,
8 Pa. D. & C. 4th 645 (Pa. Com. Pl. 1991) ............................................................................... 11
vii

Case 1:14-cv-01043-GBL-IDD Document 109 Filed 03/23/15 Page 9 of 42 PageID# 5069
In re Ritchie, 159 Cal. App.3d 1070 (1984) ................................................................................................... 11
In re Verrill, 40 Mass. App. Ct. 34 (1996)..................................................................................................... 11
Lee v. Superior Court, 9 Cal. App. 4th 510 (Cal. 1992).......................................................................................... 11, 12
McVey v. Brendel, 144 Pa. 235, 22 A. 912 (Pa. 1891) ............................................................................................ 13
Petition of Dengler, 246 N.W. 2d 758 (1976) ........................................................................................................... 11
Petition of Variable for Change of Name v. Nash, 144 N.M. 633 (N.M. App. 2008) .............................................................................................. 11
Smiling Irishman, Inc. v. Juliano, 45 N.Y.S. 2d 361 (N.Y. Sup. 1943) .......................................................................................... 13
Federal Statutes 15 U.S.C § 1051.............................................................................................................................. 5 15 U.S.C. § 1011........................................................................................................................... 22 15 U.S.C. § 1052............................................................................................................................. 5 15 U.S.C.§ 1052(e) ................................................................................................................... 8, 27 15 U.S.C. § 1057(b) ........................................................................................................................ 3 15 U.S.C. § 1060........................................................................................................................... 31 15 U.S.C. § 1064(3) ................................................................................................................ 11, 17 15 U.S.C. § 1065........................................................................................................................... 21 15 U.S.C. § 1067........................................................................................................................... 31 15 U.S.C. § 1114............................................................................................................................. 3 15 U.S.C. § 1115(b) ...................................................................................................................... 23 15 U.S.C. § 1125(a) ........................................................................................................................ 5 15 U.S.C. § 1125(c)(3).................................................................................................................. 23 15 U.S.C. §§ 1065, 1115................................................................................................................. 3 25 U.S.C. § 305e ........................................................................................................................... 22 25 U.S.C. §§ 450-450e-3(2006).................................................................................................... 22 28 U.S.C. § 1491(a) ...................................................................................................................... 29
State Statutes Me. Rev. Stat. Ann. tit. 10 § 1522 (2005)....................................................................................... 9
Federal Rules Fed. R. Civ. P. 5.1(a) ...................................................................................................................... 2 Fed. R. Civ. P. 56(a) ....................................................................................................................... 6
Other Authorities 1 J. McCarthy, Trademarks and Unfair Competition, §§ 2:5(D).................................................... 5 2 McCarthy, Trademarks and Unfair Competition § 11:4.............................................................. 8 5 McCarthy, Trademarks and Unfair Competition § 19:78.......................................................... 13 Consorzio Del Prosciutto Di Parma v. Parma Sausage Prods.,
23 U.S.P.Q.2d 1894 (1992)....................................................................................................... 10 Harjo v. Pro Football, Inc.,
50 USPQ2d 1705 (TTAB 1999) ............................................................................................... 26
viii

Case 1:14-cv-01043-GBL-IDD Document 109 Filed 03/23/15 Page 10 of 42 PageID# 5070 In re Heeb Media, LLC, 89 USPQ2d 1071 (TTAB 2008) ............................................................................................... 20 In re Old Glory Condom Corp., 26 U.S.P.Q.2d 1216 (T.T.A.B. 1993) ....................................................................................... 21 In re Shiao Tam, 108 U.S.P.Q.2d 1305 (TTAB 2013) ......................................................................................... 19 Moral Intervention in the Trademark Arena: Banning the Registration of Scandalous and Immoral Trademarks, 83 Trademark Rep. 661 (1993) .......................................................................................... 21, 22 Paris Convention for the Protection of Industrial Property March 20th 1883, 21 U.S.T. 1583 .......................................................................................................................... 13
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INTRODUCTION The statutory provision at issue in this case does not restrict any speech or prohibit the dissemination of any message in any form. The effort by Pro-Football, Inc. (“PFI”) to attack Section 2(a) of the Lanham Act in isolation ignores its context as part of the federal trademark registration scheme, structured to provide protections to trademark owners and the public without disrupting a parallel system of state law. First Amendment principles lifted piecemeal from other contexts cannot easily be applied to trademark law, where trademark owners have the power to use the courts to exclude others from using a mark, and where the Supreme Court has recognized that the names of businesses constitute “a form of commercial speech [with] no intrinsic meaning” that are not intended to “editorialize on any subject, cultural, philosophical, or political.” Friedman v. Rogers, 440 U.S. 1, 11-12 (1979). The Lanham Act’s limitations on trademark registration are far more modest than those upheld in Friedman -- they do not bar the use of any name or impose any direct cost or burden on such use, and are therefore presumptively permissible. This Court should therefore recognize, as other courts have, that the statutory exclusions from trademark registration do not implicate the First Amendment, and thereby avoid becoming the first court to disrupt the careful balancing of interests developed over decades of trademark law. Even assuming, incorrectly, that the exclusion of material from the reach of the trademark registration system affects First Amendment interests, the exclusion would survive constitutional scrutiny. Not only do trademarks function only minimally as a vehicle for expression, but trademark registration also involves the necessary participation of the government in approving that registration, which confers relaxed First Amendment review even when combined with the speech of a private party. The statute is best interpreted as viewpoint-
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neutral, and any limited burden on expression that results from a denial of registration is warranted given the government’s substantial interests in, inter alia, maintaining a working trademark system at the state and federal levels and preventing a mistaken perception of official endorsement of insult and calumny.
PFI’s remaining claims – objections to the trademark registration cancellation process raised under the Just Compensation Clause and Due Process Clause of the Fifth Amendment – suffer from common flaws. PFI lacks a cognizable property right under the Fifth Amendment to support either claim. Moreover, PFI has chosen the wrong parties and the wrong Court for a takings claim, and PFI has been accorded any constitutionally-required level of process. For these reasons, PFI’s constitutional claims should be rejected.
RESPONSE TO STATEMENT OF UNDISPUTED FACTS On September 12, 2014, PFI provided to the Attorney General, in accordance with Fed. R. Civ. P. 5.1(a), a notice of constitutional challenge to the Lanham Act under the First Amendment. See ECF No. 1; ECF No. 17. On January 9, 2015, the United States intervened as a matter of right for the limited purpose of defending the question identified by PFI in its notice, see ECF No. 46, a purely-legal question to which none of PFI’s stated “facts” – introduced through discovery that did not include the United States – are material.1
BACKGROUND The Lanham Act is the latest in a series of statutes dating to 1870 providing a program of federal registration for trademarks to encourage consumer protection via source identification. New Kids on the Block v. New Am. Publ’g, 971 F.2d 302, 305 (9th Cir. 1992) (“Throughout the
1 The United States also objects that several of PFI’s purported “facts” constitute legal conclusions. See, e.g., Statement of Undisputed Facts at ¶¶ 2,7.
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development of trademark law, the purpose of trademarks remained constant and limited: [i]dentification of the manufacturer[,] sponsor[,] or [] provider”); see Harrods, LTD. v. Sixty Internet Domain Names, 302 F.3d 214, 229 (4th Cir. 2002). Rather than creating new benefits, participation in this voluntary program primarily confers procedural advantages that mitigate the challenges of trademark enforcement under state law. See Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 209 (2000); Park N Fly, Inc. v. Dollar Park and Fly, 469 U.S. 189, 194 (1985). For example, registration provides prima facie evidence of validity and ownership of a trademark in connection with the goods and services specified at registration, 15 U.S.C. § 1057(b); creates the opportunity for the right to use a mark to become incontestable as to certain defenses after a sufficient period of use, 15 U.S.C. §§ 1065, 1115; and provides a basis for a trademark owner to sue an infringer in federal court, 15 U.S.C. § 1114.
Through several iterations of the federal trademark registration program, Congress has sought to create a functioning trademark system that harmonizes trademark protections at the state and federal levels, in part by ensuring that federal trademark definitions are not incompatible with those of state and common law. Thus, in 1870, Congress excluded registration of “any proposed trade-mark which is not and cannot become a lawful trade-mark,” and limited the rights available to “any trade-mark which is used or claimed in any unlawful business, or upon any article which is injurious in itself.” See Act of July 8, 1870, ch.230, §§ 77, 84, 16 Stat. 198, 210-12 (1870) (“1870 Act”); compare Act of Mar. 3, 1881, ch. 138, §§ 3, 9, 21 Stat. 502 (“1881 Act”) (empowering Patent Office to “decide the presumptive lawfulness” of a trademark and barring enforcement for marks used on “any article . . . injurious in itself”). As judicially interpreted, these limitations proscribed registration of any matter “which cannot be lawfully converted into a trade-mark [for protection] at common law.” Seymour v. U.S. ex. Rel.
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State of S.C., 2 App. D.C. 240, 249 (Ct. App. D.C. 1894); see also U.S. ex rel. Bronson Co. v.
Duell, 17 App. D.C. 471, 477 (Ct. App. D.C. 1901) (Congress did not “throw open the door of
registration to every name and symbol that caprice might adopt”).
In 1905, Congress enumerated more extensively the limits on marks to be registered:
no mark . . . shall be refused registration as a trade-mark on account of the nature of such mark unless such mark(a) Consists of or comprises immoral or scandalous matter; (b) Consists of or comprises the flag or coat of arms or other insignia of the United States, or any simulation thereof, or of any State or municipality, or of any foreign nation . . . [and] no portrait of a living individual may he registered as a trade-mark, except by [] consent . . .
Act of Feb. 20, 1905, ch. 592, § 5, 33 Stat. 724 (1905) (“1905 Act”). As one of the Act’s
drafters explained, these elements of the 1905 Act were meant to allow “registration of all marks
which under the common law as expounded by the courts, could be considered trademarks”
protectable under the common law. See A.P. Greeley, Registration of Trademarks Under the
New Trademark Act of the United States at 8, 11 (1905).
The 1946 Lanham Act, Pub. L. No. 79-489, 60 Stat. 427 (1946), is no different. Its
purpose is “to codify and unify the common law of unfair competition and trademark
protection.” Inwood Labs. v. Ives Labs., 456 U.S. 844, 861 n.2 (1982). Similar to the 1905 Act,
Section 2 of the Lanham Act bars the registration of any mark that:
(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons . . ., institutions, beliefs, or national symbols, or bring them into contempt, or disrepute . . .;
(b) Consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof;
(c) Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States . . .;
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(d) Consists of . . . a mark which so resembles a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States by another and not abandoned, as to be likely. . . to cause confusion . . . ; (e) Consists of a mark which (1) when used on or in connection with the goods of the applicant is merely descriptive or deceptively misdescriptive of them, (2) when used on or in connection with the goods of the applicant is primarily geographically descriptive . . . . (4) is primarily merely a surname, or (5) comprises any matter that, as a whole, is functional. 15 U.S.C. § 1052. Participants submit a verified application specifying the mark and the goods and services for which registration is sought, which provides the basis of an evidentiary record used to determine whether a mark is registrable. See 15 U.S.C § 1051. If the PTO errs in registering a prohibited mark, a cancellation petition may be brought to the Trademark Trial and Appeal Board (“TTAB”), with a right to review in federal court. Id. §§ 1064, 1071. To ensure that the federal trademark registry functions smoothly in a system in which state law also governs trademarks, there is much that the Act does not do.2 There is no requirement that any trademark user register its trademark under the Lanham Act, and “rights to a mark do not arise out of registration.” Volkswagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d 812, 819 (1st Cir. 1987). Rather, “it is the use of a mark, not [] registration, that confers trademark protection.” Harrods, 302 F.3d at 229; see generally 1 J. McCarthy, Trademarks and Unfair Competition, §§ 2:5(D); id. 2:12(A) (contrasting trademark law with patent and copyright law). Section 43(a) of the Act further harmonizes the scope of state and federal protection by affording some benefits to trademarks even if unregistered. See 15 U.S.C. § 1125(a).
LEGAL STANDARD A motion for summary judgment shall be granted if the pleadings and exhibits “show[]
2 As PFI acknowledges, state common law and statutory protections also apply to trademarks that do not participate in the federal registration program. See Pl. Br. at n.21; id. at n.22; McCarthy §§ 5:2- 5:4.
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that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court is to “view the facts and draw all reasonable inferences in the light most favorable to the non-moving party.” Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). Plaintiff’s facial constitutional challenge to § 2(a) “confront[s] a heavy burden” to succeed. NEA v. Finley, 524 U.S. 569, 580 (1998) (quoting Rust v. Sullivan, 500 U.S. 173, 183(1991)). “Facial challenges to legislation are generally disfavored,” and facial invalidation of a statute is “manifestly, strong medicine” that should be granted “sparingly and only as a last resort.” Finley at 579. Because the federal registration program does not limit speech, if the Court reaches the constitutional issues in this case, PFI must show “that no set of circumstances exists under which [§ 2(a)] would be valid,” or that § 2(a) lacks any “plainly legitimate sweep.” Wash. St. Grange v. Wash St. Rep. Pty., 552 U.S. 442, 449 (2008).
ARGUMENT I. The Lanham Act’s Limits Do Not Implicate the First Amendment. As the Federal Circuit – the court that is most familiar with Section 2 of the Lanham Act – has repeatedly held, the “refusal to register [an applicant’s] mark does not affect [its] right to use it.”3 In re McGinley, 660 F.2d 481, 484 (CCPA 1981).4 Coupled with the minimal “intrinsic meaning” and expressive content of trademarks, Friedman, 440 U.S. at 12, the registrability provisions of the Lanham Act do not require review under traditional free-speech doctrines. See McGinley, 660 F.2d at 484 (“With respect to appellant’s First Amendment rights, it is clear that the PTO’s refusal to register appellant's mark does not affect his right to use it. No conduct is
3 The Federal Circuit’s view is derived from the holdings of its predecessors. See South Corp v. U.S., 690 F.2d 1368, 1369 (Fed. Cir. 1982) (adopting as binding precedent the “holdings of our predecessor courts”). 4 See also In re Fox, 702 F.3d 633, 640 (Fed. Cir. 2012); In re Boulevard Entm’t., 334 F.3d 1336, 1343 (Fed. Cir. 2003); In re Mavety Media Grp., 33 F.3d 1367, 1374 (Fed. Cir. 1994); Ritchie v. Simpson, 170 F.3d 1092, 1099 (Fed. Cir. 1999) (“denial of federal registration of a mark does not prohibit the use of that mark”).
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proscribed, and no tangible form of expression is suppressed”). Following the lead of the Federal Circuit, other federal courts have embraced this principle. See Test Masters Educ. Servs. v. Singh, 428 F.3d 559, 578 n. 9 (5th Cir. 2005) (rejecting claim “that prohibiting [a person] from registering a mark with the PTO violates [] first amendment”).5 Although these cases have reviewed the limit on registration of “immoral, deceptive, or scandalous” trademarks, nothing distinguishes the analysis applicable to the parallel anti-disparagement provision. Pro-Football Inc. v. Harjo, 2000 WL 1923326 at *1 n.1; Ritchie, 170 F.3d at 1099 (Fed. Cir. 1999).
As discussed in more detail below, the conclusion of these cases that limitations imposed by the Lanham Act do not require First Amendment scrutiny correctly reflects three principles. First, as the Federal Circuit observed in McGinley, denial of trademark registration does not directly restrict or burden any speech or expression. See 660 F.2d at 484. This conclusion reflects recognition of the applicant’s ability to continue to use the mark and the fact that many aspects of trademark law function on the assumption that trademarks are not expressive, at least in a First Amendment sense. Second, the purpose of the statutory exclusion of disparaging matter is merely to mark the boundaries of a complex federal regulatory system to harmonize with state law and codify common law definitions. Third, because Congress is not obligated to subsidize private speech, there is no constitutional violation where Congress sets the parameters of a program in a manner that operates consistent with existing law. See Rust, 500 U.S. at 201.
A. Denial of trademark registration does not restrict speech or otherwise create a burden cognizable under the First Amendment.
The Federal Circuit’s analysis in McGinley is correct: the Lanham Act’s limits on
5 See also Nat’l A-1 Adver. v. Network Sol’ns., 121 F. Supp. 2d 156, 178 (D.N.H. 2000) (where “[n]o tangible form of expression has been suppressed,” plaintiff’s “free speech rights have not been infringed in any constitutionally significant way”) (citing McGinley with approval); accord Wheeler, 814 F.2d at 819 (“refusal by the PTO to register a mark does not preclude the owner of the mark from his right to use it”).
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trademark registration do not implicate the First Amendment. See 660 F.2d at 484. Far from being vehicles for expression, trademarks are “source-identif[iers]” which “reduce the customer’s cost of shopping and making purchasing decisions.” Dastar Corp. v. 20th Century Fox Film Corp., 539 U.S. 23, 34 (2003). As the Supreme Court has recognized, source identifiers are “categorically different” from expression that “editorialize[s] on . . . cultural, philosophical, [] political . . . [or] even about commercial matters.” Friedman, 440 U.S. at 11. Consistent with this distinction, the Supreme Court has also rejected the idea that trademark law may “accord[] special treatment to communicative products.”6 Dastar, 539 U.S. at 33.
Indeed, the commercial function that a trademark serves can be impaired, and its ability to be registered rendered suspect, when it is used as a means of expression rather than as a means of identifying goods. “Marks which are merely descriptive of a product”—and thus convey useful information about the product—“are not inherently distinctive . . . , do not inherently identify a particular source, and hence cannot be protected.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769 (1992).7 By contrast, a “fanciful” mark—“a word that is coined for the express purpose of functioning as a trademark”— conveys no information other than the source of the product or service and thus is afforded the strongest trademark protection. 2 McCarthy § 11:4; see also Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 429 n.10 (2003) ( “The rule that arbitrary, coined or fanciful marks,” such as “Kodak” or “Mazda,” “should be given a much broader degree of protection . . . would appear to be entirely sound.”).
The conclusion in McGinley also reflects that registration is independent from use of a
6 PFI’s challenge to trademark registration thereby presents a far different circumstance than the regulations of the contents of films described in Bullfrog Films v. Wick, 847 F.2d 502 (9th Cir. 1988), see Pl. Br. at 11-12. 7 Thus, Coca-Cola cannot assert trademark rights in the term “soda,” see 15 U.S.C. § 1052(e), even though this is a true fact about its product that the company is entitled under the First Amendment to advertise to the public, see Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 773 (1976).
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trademark. For this reason, PFI cannot identify any use of its trademarks that is prohibited or made more difficult by the denial of registration. Rather, “refusal by the PTO to register a mark does not preclude the owner of the mark from his right to use it,” or, for that matter, “extinguish common law rights [in its protection].” Wheeler, 814 F.2d at 819; see Harrods, 302 F.3d at 229 (“it is the use of [the] mark, not its registration, that confers trademark protection”). As PFI correctly acknowledges, exclusion from the federal registration program does not deprive a trademark of legal protection.8 See Pl. Br. at n.22; 15 U.S.C. § 1125; MicroStrategy, Inc. v. Motorola, 245 F.3d 335, 341 (4th Cir. 2001). And it certainly does not limit the trademark holder from saying whatever it wishes in public debate about its trademarks and their meaning or engaging in other expressive activities associated with its trademark. A trademark holder engages in expression through these types of activities, not through its use of a trademark as a source-identifier or its registration of a trademark with the government.
Instead, all of the alleged “burdens” identified by PFI, such as the “cost of enforcement,” relate to PFI’s activities to enforce its trademarks against infringers. See Pl. Br. at 8-9. These enforcement activities and their associated costs are unrelated to expression and cannot give rise to a First Amendment claim.9 See Int’l Food & Bvg. Sys. v. City of Ft. Lauderdale, 794 F.2d 1520, 1526 (11th Cir. 1986) (explaining that “the first amendment does not guarantee anyone a profit,” only the right to express a message); New Kids, 971 F.2d at 309 (“limited” rights
8 Plaintiff notes that many states have legislatively adopted an anti-disparagement provision similar to Section 2(a). Yet application of state law to Plaintiff’s mark is independent of federal law, and in any event, the presence of this provision is not uniform as Plaintiff concedes – although Plaintiff’s suggestion that this provision is consistent in all states except Wisconsin appears to be in error, see 10 Maine Rev. Stat. Ann. Tit. 10, § 1522 (2005). 9 PFI’s convoluted effort to explain that the government has burdened it by “distort[ing] public debate,” Pl. Br. at 5, underscores the absence of a burden to the “entertainment services,” e.g., “football exhibitions,” for which its trademarks are registered. See Stone Lion Capital Partners, L.P. v. Lion Capital, LLP, 746 F.3d 1317, 1324 (Fed. Cir. 2014) (trademark rights are limited “commensurate with the scope of the services” identified in the application).
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conferred by trademark do not protect every profit interest of mark holder).10 As one court
recently observed, “[i]n the First Amendment context, it is the burden on speech, not
pocketbook, that matters.” American Meat Inst. v. USDA, 968 F. Supp. 2d 38, 52 (D.D.C. 2013),
aff’d 746 F.3d 1065 (D.C. Cir. 2014), aff’d en banc after vacating, 760 F.3d 18 (D.C. Cir. 2014).
Amici separately hypothesize that some people may be deterred by the unregistrability of
a disparaging term from adopting the term as part of the name of a group identifying themselves.
Brief of Amici Curiae ACLU et al. (“ACLU Br.”) at 6-7; 18-19. ECF No. 76-2. This argument,
however, wrongly presupposes a right to repurpose a federal program designed to encourage
source-identification of commercial goods and services as a forum for personal expression. The
cases cited by amici do not support this proposition, as they involve direct monetary fines on
speech itself, such as the publication of journals or heightened charges for security at speeches. See ACLU Br. at 9-10.11 In contrast to circumstances involving such penalties, PFI remains free
to use its trademarks without any costs imposed by the government on such use, and even retains legal protections available under other sources of law.12
In the closest parallel context to federal trademark registration, it is well-established that
where the common-law right to call one’s self by a name of one’s own choosing is left
untrammeled, the government may regulate access to official registration of name changes
10 See also Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 762 (1985) (First Amendment concerns are limited where only specific business interests of a single party are affected); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54 (1986) (“The inquiry for First Amendment purposes is not concerned with economic impact”); id. (“we have never suggested that the First Amendment compels the Government to ensure that . . . speech-related businesses . . . will be able to obtain sites at bargain prices”). 11 See, e.g., Simon & Schuster v. N.Y. Crime Victims Bd., 502 U.S. 105 (1991) (direct financial penalty imposed on the profits from speech (i.e. authorship of books)). 12Amici’s brief also wrongly assumes that Section 2(a) may deter speakers because of the threat that language will evolve over time. See ACLU Br. at 15-16. But Congress has not empowered PTO to sit as a continuing board of censors; rather, by providing cancellation only if the registration should not have been granted at the time of issuance, Congress has cabined PTO’s review role to a specific moment in time. See Consorzio Del Prosciutto Di Parma v. Parma Sausage Prods., 23 U.S.P.Q.2d 1894 at *5 - *7 (1992) (analyzing 15 U.S.C. § 1064(3)).
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without implicating the First Amendment. See, e.g., Petition of Variable for Change of Name v.
Nash, 144 N.M. 633, 635 (N.M. Ct. App. 2008) (denial of name change request does not
“infringe[] on Petitioner’s right to free speech” because, without official application, he may
“use any name at all”).13 Applying this principle, courts have confirmed that the First
Amendment right to choose one’s own name does not extend to requiring official “approval of a
surname that will shock, disparage, or emotionally harm members of a racial group.” Lee v.
Superior Court, 9 Cal. App. 4th 510 (Cal. 1992).14 As the California Supreme Court explained,
because the requestor’s “common law right to use the surname ha[d] not been abrogated, none of
his First Amendment rights ha[d] been prejudiced.” Id. Section 2(a) is no different: Plaintiff and
others denied federal registration for marks that “disparage, or emotionally harm members of a
racial group” have no First Amendment claim because they remain free to use the trademark at
will. Id.15 The federal government is not constitutionally required to participate in that effort.
B. The Trademark Registration Statute Appropriately Excludes Flags, Names, Merely Descriptive and Immoral Terms, and Other Matter That the Common Law Generally Did Not Recognize As Subjects For Trademark Protection.
Section 2’s registration prohibitions do not take away any protectable trademark rights
13 See also In re Verrill, 40 Mass. App. Ct. 34, 35-36 (1996) (“The statute does not abrogate the common law right to use a name of one's choosing. It simply aids a petitioner in securing an official record.”); In re Ritchie, 159 Cal. App.3d 1070 (1984) (“The common law recognizes the right of a person to change his name without the necessity of legal proceedings; the purpose of the statutory procedure is simply to have . . . the change recorded.”). 14 See also In re Bacharach, 344 N.J. Super. 126, 132 (“A hearing judge is not required to rubber stamp by judicial order a change of name to one that is obscene, ridiculous or racist.”); In re Name Change Petition of Bethea, 18 Pa. D. & C. 4th 645, 647 (Pa. Com. Pl. 1991) (rejecting recognition of “World Saviour” because most religious persons would find the name “to be highly offensive if bestowed upon anyone other than the One in whom they believe”); Petition of Dengler, 246 N.W. 2d 758, 764 (1976) (“[T]he Legislature in giving authority to the courts to change a name had in mind a name as understood and defined by common law.”). 15Courts have similarly concluded that Internet domain names that serve only as “source identifiers” are not entitled to the protections of the First Amendment (although the United States does not agree with any suggestion that government action is inherently involved in administering domain names). See, e.g., PGMedia, Inc. v. Network Solutions, 51 F. Supp. 2d 389, 407-08 (S.D.N.Y. 1999) (“Internet alphanumeric addresses are not speech but are rather like a telephone number”); cf. Planned Parenthood Fed’n of Am. v. Bucci, 1997 WL 133313 at *10 (S.D.N.Y. Mar. 24, 1997), aff'd, 152 F.3d 920 (2d Cir. 1998) (unpublished decision); Morrison & Foerster v. Wick, 94 F. Supp. 2d 1125, 1134 (D. Colo. 2000); but see Name.Space v. Network Solutions, Inc., 202 F.3d 573, 585-86 (2d Cir. 2000); Taubman Co. v. Webfeats, 319 F.3d 770 (6th Cir. 2003).
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that otherwise would have existed under state and common law. As explained supra, each
iteration of the federal trademark registration system has ensured that the overall system of
federal and state trademark protection functions smoothly by allowing registration only of
material consistently recognized as the subject of state and common law trademark protection.
See, e.g., 1870 Act § 79; 1905 Act at § 5. Prior to the Lanham Act, these certain exclusions
helped Congress maintain a well-functioning trademark system by avoiding inconsistencies
between federal law and trademark common law. See 1870 Act § 84 (preserving common law trademark rights and remedies); 1881 Act § 10 (same); 1905 Act § 23 (same).16 Under the
Lanham Act, which attempted to “codify” much of the existing substantive common law, these
exclusions ensured that the Lanham Act did not impose trademark protections that could not be
reconciled with longstanding state interpretations. Inwood Labs, 456 U.S. at 861 n.2; see Pierre
N. Leval, Trademark: Champion of Free Speech, 27 Colum. J.L. & Arts 187, 198-99 (2004)
(“What may look on its face like a legislative creation . . . [is] nothing more than a cursory legislative recognition of a long pre-existing body of . . . common law”).17 The Lanham Act’s
exclusion of “disparaging” matter, including misleading racial stereotypes, reflects these
common-law roots. See, e.g., McVey v. Brendel, 144 Pa. 235, 248-49 (Pa. 1891) (placing beyond
the “purpose of an injunction” protecting trademarks “the use of vulgar epithets and personal
denunciation” on cigar labels to “stigmatize[]” others and “cover[] them with opprobrious
16 See also Cong. Globe, 41st Cong., 2nd Sess., 2683 (1869) (statement of Rep. Thomas B. Jenckes) (explaining that 1870 Act does not extend beyond common-law protections); Trade-Marks, 29 Am. Law Register 304, 310 (1880) available at http://www.jstor.org/stable/3304183 (“The registration of a trademark . . . gives [] no better right to its exclusive property than [] possessed before registration” and discussing 1870 Act); Edison v. Thomas A. Edison, 128 F. 1013, 1014 (C.C. Del. 1904) (discussing 1881 Act); Dwinell-Wright Co. v. Nat'l Fruit Product Co., Inc., 129 F.2d 848, 851 (1st Cir. 1942) (“Registration of a trade-mark under the Trade-mark Act of 1905 neither enlarges nor abridges the registrant's substantive common-law rights in the mark”). 17 Compare Renna v. County of Union, N.J., 2014 WL 2435775 at *6 (D.N.J. 2014) (noting Act’s “determination[s] that [certain matters] are not appropriate subjects of trademark law at all”) (citing 5 McCarthy § 19:78) with Spartan Food Sys., Inc., v. HFS Corp., 813 F.2d 1279 (4th Cir. 1987) (recognizing conflict preemption in Lanham Act).
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epithets”); Smiling Irishman, Inc. v. Juliano, 45 N.Y.S. 2d 361, 364-66 (N.Y. Sup. 1943)
(discussing whether mark constituted “caricature of the Irish,” and ultimately rejecting the
possibility that “the use of the name ‘Smiling Irishman’ . . . [would] be a matter of grave concern
to the many numbers of persons throughout the country of Irish blood.”).18 In short, in adopting
the Lanham Act, Congress did not single out disfavored categories of speech, but rather sought
to ensure that the Act did not create significant incompatibilities between federal and state
trademark law. See, e.g., Trade-Mark Conv., U.S.-Fr., Apr. 16, 1869 (ratification reported 17
Sen. Exec. J. 219 (1869)); Consular Conv., U.S.-German Empire, Dec. 11, 1871, 17 Stat. 921.19
Importantly, the Lanham Act’s statutory framework also incorporates the recognition by
courts that excessively-broad trademark protections could potentially place free speech at risk.
Judge Learned Hand noted the tension between the interests of trademark owners and the
principle that “all are entitled prima facie to use” words and language to express themselves.
Adolph Kastor & Bros. v. FTC, 138 F.2d 824, 825 (2d Cir. 1943); Flint v. Hutchinson Smoke-
Burner Co., 110 Mo. 492 (1892); Lustgarten v. Felt & Tarrant Mfg. Co., 92 F.2d 277, 281 (3d
18 As one influential 1885 treatise explained, “[t]he tale told by the symbol must be sincere,” and therefore cannot be a “representation[] calculated to mislead the public.” W.H. Browne, A Treatise on the Law of Trade-Marks and Analogous Subjects (Firm-Names, Business-Signs, Good-Will, Labels, & c), 2nd ed. § 71, at 78-79 (1885). In addition, to be protected as “a ‘lawful trademark,’ the emblem must avoid transgressing the rules of morality or public policy.” Id. § 602 at 608. These equitable principles extended broadly, from the “qualities and properties” of merchandise to marketers engaged in false, misrepresentative, or disingenuous statements. See id. § 71, 78-79; Fowle v. Spear, 9 F. Cas. 611 (C.C. Pa. 1847); Hennessy v. Wheeler, 51 How. Pr. 457 (C.C.P.N.Y. 1876) (trademark enforcement “denied when the trade mark claimed was in any respect of a false or deceptive character . . . [or] attended by disingenuous or deceptive concomitants”). The decisions by the Commissioner of Patents likewise reflect recognition that disingenuous trademarks or those directly reflecting strong moral pre-associations would “defeat the fundamental object of the trade-mark law.” In re John F. Tolle, 2 Off. Gaz. Pat. Office 415 (Oct. 8, 1872) (Masonic emblem, although otherwise qualifying as trademark, held such strong “general significance” to “the public mind,” and “moral significance” to Masons as to require rejection). 19 Congress’ delineation of the scope of federal registration also reflected the need to avoid discord with international law, which incorporated similar exclusions. See, e.g., Denmark Law of July 2, 1880 For the Protection of Marks of Trade and Commerce (“Registration of the declaration shall be refused . . . [i]f it contains objects calculated to provoke public scandal”); Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, as last revised a July 14, 1967, 21 U.S.T. 1583 (encouraging national-level trademark registration systems and authorizing the exclusion of marks that were “contrary to morality or public order”); cf. In re City of Houston, 731 F.3d 1326, 1334 (Fed. Cir. 2013) (discussing Paris Convention’s exclusion from protection of other marks).
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Cir. 1937) (Dickinson, J., dissenting) (discussing “the right to teach any art or science which will aid men and women in their daily avocations”). By incorporating the balance between these interests established by the common law, the Lanham Act avoids “serious First Amendment concerns” associated with the “right[] to control language” and “allow[s] breathing space for free expression.” Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005); Rogers v. Grimaldi, 875 F.2d 994, 998 n.3 (2d Cir. 1989). Application of First Amendment doctrines extracted from other contexts to Section 2 of the Lanham Act risks requiring the government to register as a trademark “every name and symbol” sought, Duell, 17 App. D.C. 477, no matter how hateful the disparaging racial epithet, thereby upending this long and carefully-established balance.20
C. Setting the Terms on Participation in Voluntary Programs Does Not Offend the First Amendment or Create an Unconstitutional Condition on Speech.
The First Amendment “protects the right to be free from government abridgment of speech,” but although “in some contexts the government must accommodate expression, it is not required to assist others in funding the expression of particular ideas.” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 358 (2009). For this reason, Congress’s “decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.” Regan v. Taxation with Representation of Wash., 461 U.S. 540, 549 (1983); see S.C. Ed. Ass’n v. Campbell, 883 F.2d 1251, 1256 (4th Cir. 1989). In the Lanham Act, because operation of the federal trademark registration program entails the expenditure of public funds in evaluating and approving marks and the exercise of legal authority in conferring procedural
20 Indeed, acceptance of the First Amendment interpretation urged here – that the government must permit registration of disparaging marks, thereby providing owners with tools to exclude others from using those marks – risks chilling those who would respond to a disparaging mark with a critical or mocking use of the mark. See Spence v. State of Wash., 418 U.S. 405, 415 (1974) (recognizing value of using a symbol in protest “in a way closely analogous to the manner” in which it is commonly used); cf. Whitney v. Calif., 274 U.S. 357, 377 (1927) (Brandeis, J., concurring) (identifying principle of “more speech” as the First Amendment remedy to offensive speech).
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advantages, Congress is under no obligation to subsidize “a more convenient method” of trademark enforcement for applicants. Campbell, 883 F.2d 1256.21 Here, PFI remains “free to engage in such speech as [it] see[s] fit,” including using pre-existing state law remedies to enforce its trademark. PFI is “simply . . . barred from enlisting the [PTO] in support” of its speech. Therefore, there is no abridgment of First Amendment rights. Ysursa, 555 U.S. 359.
In addition, Congress can “selectively fund” programs or otherwise assert its authority to “encourage certain activities it believes to be in the public interest,” Rust, 500 U.S. at 193, and it does not violate the First Amendment for such programs to convey a message of “decency” and “respect” for others. NEA v. Finley, 524 U.S. 569, 588 (1998). Here, federal recognition of trademarks is not constitutionally mandated, and Congress was not required, in providing for registration, to include previously non-existent protections for the categories enumerated in Section 2, including disparaging marks. Congress has thus appropriately set the parameters of the registration system to serve the public interests in consistency with common law as well as to convey a message that disparaging others should not be profitable. Significantly, in doing so, Congress has structured the program to leave intact state law protection for marks not included, thereby “simply leav[ing] undisturbed a pre-existing barrier” to trademark enforcement. FEC v. Intl’ Funding Instit., 969 F.2d 1110, 1114 (D.C. Cir. 1992) (holding that such action “cannot be said in any sensible way to infringe upon the [] first amendment”).
PFI and amici err when they portray the Lanham Act’s direct regulation of the registration of trademarks as a “statute that conditions benefits on the curtailment of speech.” Pl. Br. at 11. This analysis distorts both the nature of the Lanham Act and the precedent concerning
21 See also Regan, 461 U.S. 549-50 (government “may not place obstacles in the path of a [person's] exercise of ... freedom of [speech], [but] it need not remove those not of its own creation”).
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unconstitutional conditions. See USAID v. Alliance for Open Soc’y Int’l, 133 S. Ct. 2321, 2327 (2013) (distinguishing between regulation within the program itself and “condition[s]” on expression elsewhere). Contrary to PFI’s argument, the exclusions in Section 2 do not condition registration on any expression, let alone “speech outside the contours of the [trademark registration] program.” Id. at 2328; Pl. Br. at 11 (emphasis by Plaintiff).22 It matters not what PFI or other trademark applicants say about, or do with, their trademarks in other contexts. Thus, the TTAB correctly concluded that PFI’s efforts to show that its marks are “being used in a respectful manner” were irrelevant. Pl. Br. at 5; see TTAB Op. at 23-24. Indeed, Congress has explicitly framed the question at issue in a cancellation proceeding involving subsection 2(a) as whether registration of a mark “was obtained” contrary to the statute’s requirements at the time of registration and not based on its subsequent use. See 15 U.S.C. § 1064(3). Rather, Section 2 is appropriately upheld as an aspect of the registration itself: a government decision that does not implicate the First Amendment even though it may deny commercial benefits to an applicant.
II. Even Assuming that the Program of Federal Trademark Registration Implicates Speech or Expression, Section 2(a) Is Constitutional.
A. The Court Cannot Disregard the Government’s Role in Any Such Expressive Aspects of Trademark Registration.
Even assuming that private expression is involved in a trademark registration, the Fourth Circuit has explained that there is “additional weight in favor of upholding” regulations affecting private speech where the expression is imbued with the government’s authority. WV Ass’n of Club Owners and Fraternal Servs. v. Musgrave, 553 F.3d 292, 301 (4th Cir. 2009). Here,
22 See also Rust, 500 U.S. at 197 (no unconstitutional condition where government is not “effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program”). Plaintiff’s effort to rely on Legal Servs. Corp v. Velazquez, 531 U.S. 533 (2001), Pl. Br. at 11, to show a conditioning of benefits is unavailing. As the Ninth Circuit has concluded, under Velazquez, as part of a government program, Congress may “limit specific procedural tools and strategies” for carrying out “legal advocacy” as long as it does not prohibit expression altogether. Legal Aid of Oregon v. Legal Svcs. Corp., 608 F.3d 1084, 1095 (9th Cir. 2010).
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although the availability of trademark registration may have an indirect effect on the desirability of choosing a particular mark to promote a product, the direct consequence of registration comprises certain presumptions in litigation and the government’s publication in its own register. The program therefore includes an element of government expression and requires special solicitude to the government’s ability “to promote particular messages[,] . . . limit the scope of the message it sends[,] . . . [and] select from among various viewpoints those that the government will express as its own.”23 Sons of Confederate Veterans, Inc. (“SCV”) v. Comm’n of Va. Dep’t of Motor Vehicles, 288 F.3d 610, 616-17 (4th Cir. 2002); Planned Parenthood of S.C. v. Rose, 361 F.3d 786, 795-96 (4th Cir. 2004) (Op. of Michael, J.) (relaxed scrutiny where government “creat[es] and manag[es] its own programs,” even where a private component to speech exists, such as “when a public museum decides to display one work of art as opposed to another”). Thus, to the extent trademark registration implicates speech, the Lanham Act is entitled to added deference, regardless of the First Amendment doctrinal standard applied.
B. If Analyzed Under the Fourth Circuit’s Treatment of Hybrid Speech as Occurring in a Limited Public Forum, Section 2(a) is Constitutional.
In SCV, the Fourth Circuit examined a government program to approve privatelydesigned license plates and adopted “forum analysis as the means of analyzing restrictions placed on private speech that occurs on government property or with government participation [] where the government is not expressing its own message.” SCV, 288 F.3d at 622. To the extent that trademark registration involves speech in any forum,24 Congress at most created a limited
23 As discussed below, the trademark standards do not, in any event, discriminate on the basis of viewpoint and so the Court need not reach the issue of whether trademark registration constitutes government speech. 24 As explained above, the better view is that registration is not a forum at all, given that registration is separate from trademark use and is merely the legal vehicle for “secur[ing] to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com. 564 F. Supp. 2d 544, 552-53 (E.D. Va. 2008) (quoting legislative history).
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public forum, in which the government may regulate the content of speech. See, e.g., Rose, 361 F.3d at 797-99 (“certain restrictions on speech within [such a] forum are reasonable and permissible . . . the government may consider content. . . [and] prohibit patently offensive speech”); see also Rosenberger v. Rector & Visitors of UVA, 515 U.S. 819, 830 (1995). Indeed, as the lead opinion in Rose explained, the government may even “favor certain speech on the basis of viewpoint” in the programs it manages, 361 F.3d at 795, but the Court need not reach that issue here because the Lanham Act’s exclusion of marks that may “disparage” does not discriminate on the basis of viewpoint.
As an initial matter, characterizing Section 2’s limits on trademark content as a form of viewpoint discrimination ignores that trademark law is generally structured to protect words or symbols that identify the source of goods, rather than those that contain expressive content. See supra Part I.A. Also erroneous is the suggestion, ACLU Br. at 8, that Section 2 limits registration only for “negative[]” and not “positive[]” trademarks: Section 2 likewise excludes from registration as merely descriptive much positive and laudatory language that traditionally cannot be the subject of trademark protection under the common law. See Hoover Co. v. Royal Appliance Mfg. Co., 238 F.3d 1357, 1360 (Fed. Cir. 2001) (“generally laudatory phrase” unregistrable as merely descriptive and remains “free for use by all”); Hercules Powder Co. v. Newton, 266 F. 169, 172 (2d Cir. 1920) (“laudatory epithets” descriptive and unregistrable). Furthermore, the availability of trademark registration does not turn on the views held by a trademark applicant. Rather, as the TTAB explained, it is not the “alleged honorable intent and manner of use of the term” at issue, but the objective question of “whether a substantial composite” of Native Americans found “Redskins” to be “a disparaging term in the context of
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[PFI’s] services.”25 TTAB Op. at *10; id. at *12-*14.26 Indeed, the limitation on disparaging
content applies regardless of the view that is intended to be expressed by such disparaging
speech. See In re Tam, 108 U.S.P.Q.2d 1305 (TTAB 2013) (refusing registration to applicant
seeking to “embrace” stereotype embodied in the racial slur “Slants”).27 PFI’s tortured effort to
claim as-applied “viewpoint” discrimination by alleging that cancellation of registration restricts
“[w]hat PFI says in [] debate,” Pl. Br. at 7, over PFI’s brands is equally baseless: PFI may
continue to say whatever it likes about its brands or Native Americans without any limit at all.28
C. Even Assuming PFI Is Correct that Its Challenge Should Be Analyzed as a Restriction on Commercial Speech, the Trademark Statute Is Constitutional.
In the alternative, even if the Court rejects the United States’ other arguments and
concludes that PFI is correct that the trademark registration program should be analyzed as a
limit on commercial speech, Section 2(a) of the Lanham Act is constitutional under the
applicable standard of review.29 In Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n. of
25 See also U.S. v. Martinez, 736 F.3d 981, 987 (11th Cir. 2013) (discussing relationship between “objective standards” and analysis of how speech “‘might have been understood’ by listeners”). Section 2(a) thus contrasts starkly with the circumstance presented by R.A.V. v. City of St. Paul, in which certain words could be used by “those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers’ opponents.” 505 U.S. 377, 391 (1992). 26 In contrast to Clatterbuck v. Charlottesville, 708 F.3d 549, 556 (4th Cir. 2013), relied on by PFI, the decision on PFI’s registration thus “reasonably comports with the content distinction on the face of the regulation” without reference to viewpoint. Id. Nor is Rosenberger to the contrary: PFI’s quotation of isolated phrases obscures Rosenberger’s unremarkable holding that it is impermissible viewpoint discrimination to withhold direct funding from an organization based on its “avowed religious perspective,” i.e. its expressed viewpoint. 515 U.S. at 832. The other cases cited by PFI likewise found viewpoint discrimination based on the regulated party’s actual “beliefs or advocacy.” Wishnatsky v. Rovner, 433 F.3d 608, 613 (8th Cir. 2006); see Pl. Br. at n.4 and cases cited therein. 27 See also In re Heeb Media, LLC, 89 USPQ2d 1071, 1076-77 (TTAB 2008) (refusing registration of the slur HEEB despite publisher’s “good intentions” to use the mark as a “source of pride”); cf. Velazquez, 531 U.S. 533 (striking down restriction on speech that is critical of government, not just speech that is critical). 28 If it violated the First Amendment for the government to make a statement or take an action that might indirectly “affect[] PFI’s message in [an] ongoing public debate,” Pl. Br.at 7, the First Amendment would operate as a universal shield against commercial regulation of every kind. For this reason other courts have rejected heightened scrutiny for limits on the public use of trademarks because it “would create disaster” to “[g]ive trademarks, trade names, or logos the level of protection afforded to non-commercial speech.” Transportation Alternatives, 218 F. Supp. 2d at 438; cf. U.S. v. Philip Morris, 566 F.3d 1095, 1144 (D.C. Cir. 2009) (fact that tobacco advertising may be “link[ed] to an issue of public debate[] does not change the commercial nature of the speech”). 29 Significantly, the cases on which PFI relies hold only that use, not registration, of a trademark is commercial
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NY, 447 U.S. 557 (1980), the Supreme Court set out the standard for review of government prohibitions on non-misleading commercial speech about lawful activity, which will be upheld if: (1) the government “assert[s] a substantial interest” in support that is (2) “directly advance[d]” by the regulation; and if (3) “the regulation is not more extensive than is necessary to serve that interest.” Educ. Media Co. at Va. Tech, Inc. v. Swecker, 602 F.3d 583, 588 (4th Cir. 2010).
Section 2(a) is supported by several government interests, each of which is substantial in its own right. As an initial matter, in developing the commercial speech doctrine, the Supreme Court recognized a government interest in preventing “harmful” commercial speech, identifying “untruthful” and “deceptive” speech, along with speech in furtherance of illegal activities, as examples of harmful speech. See Va. State Bd. of Pharmacy, 425 U.S. at 770-71.30 Disparaging commercial speech is also likely to be harmful, particularly when focused on the dignity and reputation of those associated with disadvantaged and minority groups. See Sambo’s Restaurants v. Ann Arbor, 663 F.2d 686, 695 (6th Cir. 1981) (finding “racial harmony and equality [to be] a substantial state interest,” but rejecting ban on offensive business name); Def’s MSJ Mem, ECF No. 71, at 12-13 & exhibits cited therein (describing disparagement). However, because Section 2 does not restrict any speech, this interest applies only indirectly; rather, the government’s substantial interest exists in preventing federal registration from magnifying the impact of disparaging trademarks or in encouraging the use of such marks.
First, the structure of the Lanham Act creates direct incentives for use of a registered mark, such as according the presumption of incontestability only after “continuous use for five consecutive years subsequent to the date of [] registration.” 15 U.S.C. § 1065. The Constitution
speech. See Pl. Br. at 7-8 and cases cited therein. 30 The Supreme Court made clear, however, that its list of exceptions describes only “a few” of the “forms of commercial speech regulation [that] are surely permissible.” Id.
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does not require the federal government to provide direct incentives to use language that disparages individuals or groups. Second, although “issuance of a trademark registration” does not “amount[] to the awarding of the U.S. Government’s ‘imprimatur,’” In re Old Glory Condom Corp., 26 U.S.P.Q.2d 1216, 1219 n.3 (T.T.A.B. 1993), federal registration may nevertheless create the perception of government endorsement even where no such endorsement actually exists. See, e.g., Stephen R. Baird, Moral Intervention in the Trademark Arena: Banning the Registration of Scandalous and Immoral Trademarks, 83 Trademark Rep. 661, 663 n.6 (1993); cf. Cnty. of Allegheny v. ACLU, 492 U.S. 573, 593–94 (1989) (warning of the perception of endorsement in the Establishment Clause context). The perception that the government itself is endorsing a trademark containing a disparaging term is likely to magnify the harm of the disparagement, particularly where the group subject to such denigration has been the subject of a long and painful history of de jure discrimination. Even in very different contexts where the government imposes direct regulations on protected expression, such “secondary effects” in avoiding harms are recognized to present a substantial government interest. See, e.g., Legend Night Club v. Miller, 637 F.3d 291, 298-99 (4th Cir. 2011); cf. Passions Video, Inc. v. Nixon, 375 F. Supp. 2d 866, 872 (W.D. Mo. 2005) (“dehumanizing influence” of adult businesses on children); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 492 (1989) (“compelling interest” in government avoiding “passive participa[tion] in a system of racial exclusion”).31
In addition, the government’s interest in ensuring the smooth functioning of the complex
31 This interest is particularly acute in considering Plaintiff’s as-applied challenge, because the federal government’s interests are near their zenith where the interests being protected are part of the “government’s unique and continuing relationship with and responsibility to the Indian people.” California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216-17 n.19 (1987); see Indian Self-Determination and Education Assistance Act of 1975 § 2 (codified at 25 U.S.C. §§ 450-450e-3(2006)) (findings recognizing “the Federal Government’s unique and continuing relationship with, and responsibility to, individual Indian tribes and to the Indian people” in light of the “Federal Government’s historical and special legal relationship” that has “served to retard rather than enhance the progress of Indian people and their communities”); 25 U.S.C. § 305e (trademarks of Indian goods).
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state and federal system of trademark regulation embodies multiple substantial government interests. As discussed above, in enacting the Lanham Act, Congress sought to avoid creating conflicts between federal and state law protections for trademarks that would disrupt this equilibrium, potentially “displac[ing] the primacy of the States” and of common law. In re Conklin, 946 F.2d 306, 308 (4th Cir. 1991); cf. 15 U.S.C. § 1011 (declaring federal interest in state leadership in insurance regulation under McCarran-Ferguson Act).32 Likewise, Congress incorporated protections into the Lanham Act that preserve the balance between the interests of trademark owners and the expressive interests of others. See, e.g., 15 U.S.C. § 1115(b); 15 U.S.C. § 1125(c)(3); compare OBX-Stock, Inc. v. Bicast, Inc., 558 F.3d 334, 339-40 (4th Cir. 2009) (explaining, in context of merely descriptive and generic marks, that excluding terms from registrability is necessary to “protect[] the linguistic commons”) (internal quotation omitted).33
There is little doubt that Section 2 “directly advances” the interests described above, in accordance with the second step in the Central Hudson analysis. Swecker, 602 F.3d at 588. The direct incentives for use of a mark and the mistaken perception of official endorsement are avoided outright by Congress’s exclusion of registration of disparaging marks in Section 2. The exclusion likewise ensures the complementary relationship of state and federal trademark law by preserving common law conclusions about the scope of trademark protection. And denial of registration preserves the balance struck between the interests of trademark owners and those engaged in counter-speech. Exclusion from the federal registration system quite naturally
32 See also Carlson v. Green, 446 U.S. 14, 48 (1980) (“The importance of federalism in our constitutional system has been recognized both by this Court and by Congress”) (internal citations omitted). 33 The existence of defenses to trademark enforcement does not render irrelevant the incorporation of common-law exclusions in Section 2 as an important part of the balancing of interests, however. See Wal-Mart, 529 U.S. at 214 (Use of a mark “is deterred, however, not merely by successful suit but by the plausible threat of successful suit”); Mutual of Omaha Ins. Co. v. Novak, 836 F.2d 397, 402-03 (8th Cir. 1987) (rejecting First Amendment defense in “Mutant of Omaha” phrase); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 206 (2d Cir. 1979) (rejecting parody defense).
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advances the government interests in avoiding the harms of registration, and so the third prong of the Central Hudson analysis is readily satisfied.
Nor is Section 2(a)’s exclusion “more extensive than is necessary to serve” these substantial government interests – the final step under Central Hudson. 447 U.S. at 566. Congress chose to enact a focused limit on registration of disparaging trademarks, not an outright ban (or broader restriction) on such marks or other expression to the extent that they may otherwise have enjoyed existing protection at the state level. Compare H.R. Rep. No. 52-1860, at 3 (1892). Moreover, by creating the statutory cancellation procedure, Congress empowered the PTO to resolve decisions about registrability “in favor of [the] applicant and pass the mark for publication with the knowledge . . . that any person believed damaged by the registration would have the opportunity” to bring a challenge, thereby often avoiding any limitation on registration unless a challenger’s interests are actually harmed by registration. Mavety, 33 F.3d at 1374. Because regulation of commercial speech – particularly where such regulations do not effect an outright prohibition – does not “require a fit between the restriction and the government interest that is . . . perfect, [only] reasonable,” U.S. v. Edge Broadcasting, 509 U.S. 418, 429-30 (1993), Section 2(a) satisfies this final step of the Central Hudson analysis and is constitutional.
The conclusion that Section 2(a) is constitutional regulation is even clearer if the Court employs a relaxed application of the Central Hudson analysis, as it should. As the Fourth Circuit recognized in Musgrave with respect to the hybrid of government and private speech at issue there, the Central Hudson standard is not fixed, but instead serves as a more flexible “guide” to increased deference to government interests when commercial speech regulations present circumstances “not present in other commercial speech cases.” 553 F.3d at 301; see id. at 307 (existence of “a comprehensive and ‘carefully calculated effort’” by the government to regulate
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supports a less “searching” application of Central Hudson). The limited expressive content of trademarks likewise warrants a deferential application of Central Hudson, analogous to the Supreme Court’s conclusion in compelled commercial disclosure cases that deferential review is warranted where – as is clearly the case here – there are “material differences” between the regulation and “outright prohibitions on speech.” Zauderer v. Office of Discip. Counsel, 471 U.S. 626, 651 (1985); cf. American Meat Instit. v. USDA, 760 F.3d at 21-23 (en banc) (holding that the test set forth in Zauderer applies to government interests beyond preventing consumer deception). These principles further confirm that Section 2(a) is a valid regulation of commercial speech. III. Section 2(a)’s Exclusion of Disparaging Trademarks is Not Impermissibly Vague.
Plaintiff’s challenge to Section 2(a) as impermissibly vague must be rejected because in providing legal advantages to registered trademarks, “the Government is acting as patron” by exercising its funds and authority to confer business advantages, so “the consequences of imprecision are not constitutionally severe.” Finley, 524 U.S. at 589; see Hanky v. City of Richmond, 532 F. Supp. 1298, 1309-11 (E.D. Va. 1982) (identifying criminal statutes and deportations as “archetypal” circumstances for vagueness challenge). In contrast to the principal cases on which PFI relies, cancellation of a registration involves no criminal liability, no civil penalty, no restriction on use, and therefore no limit on expression, and so it matters not whether Section 2(a) would raise “substantial vagueness concerns” if enacted in a penal context. Finley, 524 U.S. at 588; compare Pl. Br. at 18-22 (citing, e.g., Grayned v. Rockford, 408 U.S. 104 (1972) (criminal penalty); U.S. v. Lanning, 723 F.3d 476 (4th Cir. 2013) (same); City of Lakewood v. Plain Dealer Publ’g. Co., 486 U.S. 750 (1988) (ban on newspaper distribution); Smith v. Goguen, 415 U.S. 566, 572 n.8 (1974) (“No one may be required . . . to speculate as to
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the meaning of penal statutes”)). The vagueness doctrine simply has no application to a civil registration system for trademarks,34 and because any expression is “commercial speech,” Pl. Br.
at 7, “the overbreadth doctrine does not apply.” Hoffman Estates, 455 U.S. 496-97.
In any event, Section 2(a) neither “fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits [n]or . . . authorizes . . . arbitrary
and discriminatory enforcement.” Giovani Carandola Ltd. v. Fox, 470 F.3d 1074, 1079 (4th Cir.
2006). As the TTAB has explained, a disparaging trademark is one that may “dishonor by
comparison with what is inferior, slight, deprecate, degrade, or affect or injure by unjust
comparison.” Harjo v. Pro Football, Inc., 50 USPQ2d 1705 *35 (TTAB 1999). This definition,
based on dictionaries published at the time of passage of the Lanham Act, constitutes a
“comprehensible normative standard” in which a “standard of conduct is specified.” Coates v.
City of Cin., 402 U.S. 611, 614 (1971). If “disparage” is a word that “lack[s] the clarity [PFI]
would insist on, it is because . . . ‘we can never expect mathematical certainty from our
language.’” Brown v. Town of Cary, 706 F.3d 294, 306 (4th Cir. 2013) (quoting Hill, 530 U.S. at
732). Under PFI’s reasoning, the Act’s other prohibitions, such as those on registering marks
that are “merely descriptive,” “likely to cause confusion,” or “functional,” would also fail.
The arguments by PFI and amici that an enumeration of purportedly contradictory
34 Even if the Court decides that some vagueness review is warranted, such review need not be searching, “given the subordinate position of commercial speech under the First Amendment,” Harrell v. Florida Bar, 915 F. Supp. 2d 1285, 1295 (M.D. Fla. 2011), the presumption that “businesses . . . consult relevant legislation in advance of action,” U.S. v. Sun, 278 F.3d 302, 309 (4th Cir. 2002), and the opportunity for trademark registrants “to clarify the meaning of the regulation by [their] own inquiry, or by resort to an administrative process.” Village of Hoffman Estates v. Flipside Hoffman Estates, 455 U.S. 489, 498 (1992). Importantly, registration decisions are conducted in writing, explained on-the-record (on evidence supplied by, inter alia, the applicant itself), with the opportunity to appeal to the TTAB and then to federal court, thereby protecting against “unreviewable” decisions and the “abuse of censorial power” that authorizes facial vagueness challenges. Lakewood, 486 U.S. 758-59. When the TTAB acts in a trial capacity, such as in a cancellation proceeding, the parties also have the opportunity to take discovery and present testimony. For this reason, there is simply no basis to assume that the TTAB acts on “political opinions,” or the “political climate.” Pl. Br. at 19, 21-23 (citing, e.g., Dambrot v. Cent. Mich. U., 55 F.3d 1177 (6th Cir. 1995)).
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registration decisions demonstrates vagueness through “arbitrary and inconsistent” application of Section 2(a) has no greater merit, and, if broadly applied, would undercut both the registration system and trademark law as a whole. As the Supreme Court has recognized in the context of merely descriptive marks under § 1052(e), registration decisions are done on the basis of a factspecific, individualized “inquiry into the merits of an application.” Park n Fly, 469 U.S. at 202. Courts must make similar determinations when evaluating trademark challenges.35 To hold that statutory terms like “confusion,” “descriptive,” or “disparage” are inconsistent with the First Amendment precludes any possibility of a trademark registration system that protects the free speech interests in “prevent[ing] commercial monopolization of language.” San Fran. Arts & Athletics v. U.S. Olympic Comm., 483 U.S. 522, 573 (1987).
Ultimately, “the vagueness doctrine does not prevent governments from regulating vague concepts – it only requires that they provide some guidance for citizens to understand the reach of a law’s application.” Brown, 706 F.3d at 306.36 Given the specific language in the statute, the PTO’s detailed interpretation of the statute and adoption of the “substantial composite” threshold, and that “core First Amendment speech is [not] at issue,” PFI has not met its burden to “demonstrate a greater level of vagueness.” Harrell, 915 F. Supp. 2d at 1295; see U.S. v. Glenn, 562 F.2d 324 (4th Cir. 1977) (even in criminal context, “indecent act” not unlawfully vague).
IV. The Lanham Act’s Cancellation Procedure Does Not Violate the Fifth Amendment.
PFI’s challenge to the trademark registration system is no more persuasive when
35 Notably, PFI’s examples do not demonstrate that administrative review by the TTAB, as opposed to individual examiners, have reached results that are even superficially contradictory. See, e.g., In re Squaw Valley Dev. Co., 80 U.S.P.Q.2d 1264 (T.T.A.B. 2006) (cited by PFI) (providing the reasons distinguishing No. 3,322,061). 36 The TTAB has explained why 30% of the population constitutes a “substantial composite,” TTAB Op. at *28*29, and that the determination is to be made “in the context of [each] case,” PFI v. Harjo, 284 F. Supp. 2d 96, 133 n. 32 (D.D.C. 2003), so there is no vagueness problem with this standard.
26

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repackaged in the guise of the Fifth Amendment.37 This Court lacks jurisdiction over takings claims under the Just Compensation Clause (also known as the Takings Clause) of the Fifth Amendment, which must be brought in an action against the United States in the Court of Federal Claims. Such an action would be futile, however, because cancellation of PFI’s federal registration for a trademark does not deprive PFI of the recognized property interest that is a predicate for both of its Fifth Amendment claims. For these reasons, Plaintiff’s takings and due process claims must be rejected.
This action is between private parties and PFI did not plead claims against the United States. Yet the Just Compensation Clause of the Fifth Amendment “does not apply to private parties who are not state or governmental actors,” Bajwa v. Sunoco, 320 F. Supp. 2d 454, 459 (E.D. Va. 2004), and therefore “does not provide for a cause of action against a private party.” Id.; see Gantt v. Security, USA, 356 F.3d 547, 552 (4th Cir. 2004); Lion Raisins, Inc. v. U.S., 416 F.3d 1356, 1362-63 (even where a private party or government agent effects a taking, “the suit must be brought against the United States”). PFI does not challenge the validity of the statutory cancellation procedure, nor assert that a taking occurred without a “public purpose,” see Pl. Br. at 25-27, arguing only that the TTAB’s order did not provide it with compensation, which must be obtained from the government, not a private party. See Wisc. Truck Center v. Volvo White Truck Corp., 692 F.Supp. 1010, 1015-16 (W.D. Wis.1988), rev’d in part 894 F.2d 1338 (“If a ‘taking’ is found, the remedy is compensation from the government not relief from the judgment entered against another private party”).38 Moreover, for cases in which compensation of over
37 PFI’s Notice of Constitutional Question, ECF No. 17, and the United States’ intervention as a matter of right, ECF No. 46, extend only to PFI’s First Amendment challenge. In light of its familiarity with the legal issues presented by PFI’s Fifth Amendment challenge, the United States offers this discussion for the convenience of the Court. 38 See also First English Evangelical Lutheran Church v. Los Angeles Cnty., 482 U.S. 304, 314 (1987) (Fifth Amendment designed not to prohibit taking by government but to secure proper compensation from government).
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$10,000 is sought from the government and no other statute waives immunity from suit, the Tucker Act, 28 U.S.C. § 1491(a), provides for exclusive jurisdiction in the United States Court of Federal Claims. See Ry. Labor Execs. Ass’n v. United States, 987 F.2d 806, 815-16 (D.C. Cir. 1993); United States v. Causby, 328 U.S. 256, 267 (1946) (“[I]f there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the Court of Claims to hear and determine”). Finally, it is well-settled that the Constitution is not violated — and a takings claim is not ripe — until a claimant seeks and is denied compensation. See Williamson Cty. Reg’l Plan. Comm’n v. Hamilton Bank, 473 U.S. 172, 194 & n.13 (1985) (“[B]ecause the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied”). This Court thus lacks jurisdiction over PFI’s takings claim.39
PFI’s Due Process and Just Compensation claims both are also defective because trademark registrants have no Fifth Amendment protected property interest in an erroneouslyissued trademark registration, and absent “deprivation of a protected . . . property interest . . . the constitutional right to due process [and against takings] is simply not implicated.” Iota Xi Chapter, Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 146 (4th Cir. 2009) (internal quotations and alterations omitted); Roth v. King, 449 F.3d 1272, 1286 (D.C. Cir. 2006) (“invalidity of a takings claim follows a fortiori from . . . failure to establish any entitlement that would qualify as property under the Due Process Clause”).
“Property interests . . . are not created by the Constitution,” Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972), and “[t]here is no constitutionally protected right to federal registration of
39 See also Empresa Cubana Exportadora v. Dep’t of Treasury, 606 F. Supp. 2d 59, 81-82 (D.D.C. 2009) (no taking unless government action “appropriate[s] to the public use” or “vest[s] assets in the United States”). Moreover, even under the “economic impact” analysis proffered by PFI, it has failed to put forward any record evidence regarding any change in value to its trademarks, only evidence about the team’s actual value. Pl. Br. at 25-26.
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any mark.” In re Int’l Flavors & Fragrances, 183 F.3d 1361, 1368 (Fed. Cir. 1999). Under the cancellation procedure applicable to Section 2(a), a registration may be cancelled as disparaging only if it should not have issued in the first instance, i.e., if the Act did not properly entitle the mark to registration. See Roth, 408 U.S. at 577. For that reason, and because “[a] trademark, even a registered one, is not a property right, like a copyright or a patent, but merely an identifier of source,” trademarks are not “property” within the meaning of the Fifth Amendment. Door Sys., Inc. v. Pro-Line Door Sys., 83 F.3d 169, 173 (7th Cir. 1996); see Int’l Flavors, 183 F.3d 1368; cf. Patlex Corp. v. Mossinghoff, 758 F.2d 594, 605 (Fed. Cir. 1985) (property interest absent in legal presumption of patent validity).40
Plaintiffs’ argument is “based upon the fundamental error of supposing that a trade-mark right is a right in gross or at large, like a statutory copyright or a patent for an invention, to either of which, in truth, it has little or no analogy. There is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade in connection with which the mark is employed.” United Drug v. Theodore Rectanus Co., 248 U.S. 90, 97 (1918); see Visa, U.S.A. v. Birmingham Trust Nat’l Bank, 696 F.2d 1371, 1375 (Fed. Cir. 1982). Rather, federal registration of a mark involves an applicant’s “voluntar[y] ent[rance] into an area which from the start is subject to pervasive Government control,” where a property interest is therefore lacking. Hearts Bluff Game Ranch, Inc. v. U.S., 669 F.3d 1326, 1330 (Fed. Cir. 2012).41 Indeed, PFI should have known that “even an incontestable mark is always subject to certain enumerated
40 Contrary to PFI’s selective quotation of College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 673 (1999), the Court therein held there was no constitutionally-protected property right in the portion of the Lanham Act at issue, and declined, even in dicta, to recognize cognizable property interests in the rest; see also Park ‘n Fly, 469 U.S. at 208 (Stevens, J., dissenting) (no “public purpose would be served by granting incontestable status to a mark that should never have been accepted for registration in the first place”). 41 See also Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 272 (5th Cir. 2012) (similar); Mobin v. U.S., 22 Cl. Ct. 331, 335 (Cl. Ct. 1991) (no taking where government action “merely involved an implementation of the very statutes and procedures that defined the scope of plaintiff's property interest in the first place”).
29

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grounds for cancellation of the registration.” Holiday Inn v. Holiday Inns, 534 F.2d 312, 320 (CCPA 1976). And the Lanham Act prohibits the transfer of a trademark except in connection with a transfer of the underlying goodwill of the business. 15 U.S.C. § 1060; see U.S. v. Hedaithy, 392 F.3d 580, 600 (3d Cir. 2004) (no protected property interest where hallmarks of “the concept of property” such as the right to transfer or sell it alone are absent).42 For all of these reasons, PFI cannot establish that it has a property interest recognized by the Fifth Amendment for either of its claims.
Even if a property interest existed, however, PFI’s assertion that the Lanham Act provides insufficient process is meritless. Prior to any cancellation, a trademark registration holder is entitled to the benefit of extensive administrative proceedings and a hearing before a panel of independent administrative law judges. See 15 U.S.C. § 1067; 37 CFR §§ 2.111-2.136. This pre-deprivation process, moreover, is supplemented by the procedural rights to review in a new proceeding on the merits in federal district court. Id. § 1071(b). The panoply of procedural protections, including the capstone judicial review, would satisfy any hypothetically-required level of process. See Hightower v. City of Boston, 693 F.3d 61, 87 (1st Cir. 2012); Mathews v. Eldridge, 424 U.S. 319 (1976).
CONCLUSION For the foregoing reasons, should this Court reach the constitutional issues presented by PFI, judgment should be entered against PFI on those claims.
42 Indeed, property rights are limited even in a trademark itself, which cannot be sold “divorced from a product, because a trademark is significant only to the extent it helps consumers associate a product with a producer.” Bodum USA v. La Cafetiere, 621 F.3d 624, 631 (7th Cir. 2010); Prem. Dental Prods. v. Darby Dental Supply Co., 794 F.2d 850, 853 (3d Cir. 1986) (“a trademark is not the subject of property except in connection with an existing business”).
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Dated: March 23, 2015

Respectfully submitted,
BENJAMIN C. MIZER Acting Assistant Attorney General
DANA J. BOENTE United States Attorney
/s/ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Ave. Alexandria, Virginia 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: Dennis.Barghaan@usdoj.gov
JOHN R. GRIFFITHS Branch Director ERIC R. WOMACK Assistant Branch Director ERIC J. SOSKIN (PA Bar 200663) Senior Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 Tel: (202) 353-0533 Fax: (202) 305-2685 Email: Eric.Soskin@usdoj.gov
Attorneys for the United States

31

Case 1:14-cv-01043-GBL-IDD Document 109 Filed 03/23/15 Page 42 of 42 PageID# 5102

CERTIFICATE OF SERVICE
I hereby certify that on the 23rd day of March, 2015, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:
Jesse A. Witten Jeffrey J. Lopez Adam Scott Kunz Tore T. DeBella Jennifer Criss DRINKER BIDDLE & REATH LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 Email: Jesse.Witten@dbr.com; Jeffrey.Lopez@dbr.com; Adam.Kunz@dbr.com; Tore.DeBella@dbr.com; Jennifer.Criss@dbr.com
Craig C. Reilly, Esq. THE LAW OFFICE OF CRAIG C. REILLY
111 Oronoco Street Alexandria, Virginia 22314 Email: craig.reilly@ccreillylaw.com

Date: March 23, 2015

/s/ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Ave. Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: Dennis.Barghaan@usdoj.gov
Attorneys for the United States

32

 
 Case 1:14-cv-01043-LO-IDD Document 171 Filed 01/18/18 Page 1 of 4 PageID# 6262
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 15-1874
PRO-FOOTBALL, INC.,
Plaintiff - Appellant,
v.
AMANDA BLACKHORSE; MARCUS BRIGGS-CLOUD; PHILLIP GOVER; JILLIAN PAPPAN; COURTNEY TSOTIGH,
Defendants - Appellees,
UNITED STATES OF AMERICA,
Intervenor - Appellee,
------------------------------
CONSTITUTIONAL LAW PROFESSORS; CATO INSTITUTE; THE RUTHERFORD INSTITUTE; DON BETTELYOUN; FORT MCDERMITT PAIUTE SHOSHONE TRIBE; BOYD GOURNEAU; NATIVE AMERICAN GUARDIANS ASSOCIATION; PETER MACDONALD; AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA; AMERICAN CIVIL LIBERTIES UNION OF THE NATION’S CAPITAL; FIRST AMENDMENT LAWYERS ASSOCIATION; RUSS VERSTEEG,
Amici Supporting Appellant,
NATIVE AMERICAN ORGANIZATIONS; THE NAVAJO NATION; FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY; NATIONAL NATIVE AMERICAN BAR ASSOCIATION; NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION; NATIVE HAWAIIAN BAR ASSOCIATION; CALIFORNIA INDIAN LAW ASSOCIATION,
Amici Supporting Appellee.

Case 1:14-cv-01043-LO-IDD Document 171 Filed 01/18/18 Page 2 of 4 PageID# 6263

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:14-cv-01043-GBL-IDD)

Submitted: December 22, 2017

Decided: January 18, 2018

Before KING, FLOYD, and HARRIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Robert L. Raskopf, Todd Anten, Jessica A. Rose, QUINN EMANUEL URQUHART & SULLIVAN, LLP, New York, New York; Lisa S. Blatt, Robert Alan Garrett, ARNOLD & PORTER, LLP, Washington, D.C., for Appellant. Jesse A. Witten, Jeffrey J. Lopez, Tore T. DeBella, Patrick H. Thompson, DRINKER BIDDLE & REATH, LLP, Washington, D.C.; Thomas W. Krause, Acting Solicitor, Christina J. Hieber, Thomas L. Casagrande, Associate Solicitors, OFFICE OF THE SOLICITOR, UNITED STATES PATENT AND TRADEMARK OFFICE, Alexandria, Virginia; Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Dana J. Boente, United States Attorney, Douglas N. Letter, Mark R. Freeman, Daniel Tenny, Joshua M. Salzman, Molly R. Silfen, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Rodney A. Smolla, Wilmington, Delaware; Floyd Abrams, CAHILL GORDON & REINDEL LLP, New York, New York, for Amici Constitutional Law Professors. Ilya Shapiro, CATO INSTITUTE, Washington, D.C.; John W. Whitehead, Douglas R. McKusick, THE RUTHERFORD INSTITUTE, Charlottesville, Virginia; Megan L. Brown, Joshua S. Turner, Christopher J. Kelly, Jennifer L. Elgin, Dwayne D. Sam, WILEY REIN LLP, Washington, D.C., for Amici Cato Institute and The Rutherford Institute. Thomas C. Goldstein, Bethesda, Maryland, Kimberly N. Brown, GOLDSTEIN & RUSSELL, P.C., Chevy Chase, Maryland, for Amici Don Bettelyoun, Fort McDermitt Paiute Shoshone Tribe, Boyd Gorneau, Native American Guardians Association, and Peter MacDonald. Lee Rowland, Esha Bhandari, AMERICAN CIVIL LIBERTIES UNION, New York, New York; Hope R. Amezquita, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, INC., Richmond, Virginia; Arthur B. Spitzer, AMERICAN CIVIL LIBERTIES UNION OF THE NATION’S CAPITAL, Washington, D.C., for Amici American Civil Liberties Union, American Civil Liberties Union of Virginia, and American Civil Liberties Union of the Nation’s Capital. Marc J. Randazza, RANDAZZA LEGAL GROUP, PLLC, Las Vegas, Nevada, for Amicus First Amendment Lawyers Association. Russ Versteeg, NEW ENGLAND LAW | BOSTON, Boston, Massachusetts, for Amicus Russ Versteeg. Robert S. Chang, FRED T.
2

Case 1:14-cv-01043-LO-IDD Document 171 Filed 01/18/18 Page 3 of 4 PageID# 6264 KOREMATSU CENTER OF LAW AND EQUALITY, Seattle, Washington; William C. Rava, Elvira Castillo, David A. Perez, Cara Wallace, Dane A. Westermeyer, PERKINS COIE LLP, Seattle, Washington, for Amici Fred T. Korematsu Center for Law and Equality, National Native American Bar Association, National Asian Pacific American Bar Association, Native Hawaiian Bar Association, and California Indian Law Association. Larry S. Gondelman, Brandi A. Taylor, POWERS PYLES SUTTER & VERVILLE PC, Washington, D.C.; Richard A. Guest, NATIVE AMERICAN RIGHTS FUND, Washington, D.C., for Amici National American Organizations. Ethel Branch, Attorney General, Paul Spruhan, Assistant Attorney General, Katherine Belzowski, NAVAJO NATION DEPARTMENT OF JUSTICE, Window Rock, Arizona; Mark A. Griffin, Karin B. Swope, KELLER ROHRBACK L.L.P., Seattle, Washington, for Amicus The Navajo Nation. Unpublished opinions are not binding precedent in this circuit.
3

Case 1:14-cv-01043-LO-IDD Document 171 Filed 01/18/18 Page 4 of 4 PageID# 6265
PER CURIAM: Pro-Football, Inc. (“PFI”), the owner of the professional football team the
Washington Redskins, holds six trademarks for the team’s name and logos which are federally registered. The Defendants-Appellees, Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan, and Courtney Tsotigh, a group of Native Americans, filed a petition seeking the cancellation of the registrations of those trademarks, asserting that the trademarks consist of “matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. § 1052(a) (2012). The Trademark Trial and Appeal Board ordered cancellation of the registrations based on § 1052(a). On PFI’s appeal, the district court affirmed that order, and PFI now appeals.
While this appeal was pending, the Supreme Court in Matal v. Tam, 137 S. Ct. 1744, 1751 (2017), determined that § 1052(a) violates the free speech clause of the First Amendment. In light of this determination, we vacate the district court’s order and remand for further proceedings consistent with Tam. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid in the decisional process.
VACATED AND REMANDED
4

 
 4/8/2019

15-1874 Docket

General Docket United States Court of Appeals for the Fourth Circuit
Court of Appeals Docket #: 15­1874 Nature of Suit: 3840 Trademark Pro­Football, Inc. v. Amanda Blackhorse Appeal From: United States District Court for the Eastern District of Virginia at Alexandria Fee Status: fee paid
Case Type Information: 1) Civil Private 2) private 3) null

Docketed: 08/06/2015 Termed: 01/18/2018

PRO­FOOTBALL, INC. Plaintiff ­ Appellant
v. AMANDA BLACKHORSE
Defendant ­ Appellee
https://ecf.ca4.uscourts.gov/n/beam/servlet/TransportRoom

Todd Anten Direct: 212­849­7000 Email: toddanten@quinnemanuel.com [COR NTC Retained] QUINN EMANUEL URQUHART & SULLIVAN, LLP 22nd Floor 51 Madison Avenue New York, NY 10010­0000
Lisa Schiavo Blatt Direct: 202­434­5050 Email: lblatt@wc.com [COR NTC Retained] WILLIAMS & CONNOLLY, LLP 725 12th Street, NW Washington, DC 20005­5901
Robert Alan Garrett Direct: 202­942­5000 [On Brief] ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue NW Washington, DC 20001
Robert Lloyd Raskopf, Esq. Direct: 212­849­7000 Email: robertraskopf@quinnemanuel.com [COR NTC Retained] QUINN EMANUEL URQUHART & SULLIVAN, LLP 22nd Floor 51 Madison Avenue New York, NY 10010­0000
Jessica Anne Rose Direct: 212­849­7254 Email: jessicarose@quinnemanuel.com [COR NTC Retained] QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue New York, NY 10010­0000
Sanford Ian Weisburst Direct: 212­849­7000 Email: sandyweisburst@quinnemanuel.com [COR NTC Retained] QUINN EMANUEL URQUHART & SULLIVAN, LLP 22nd Floor 51 Madison Avenue New York, NY 10010­0000
Tore Thomas DeBella, II Direct: 202­230­5830
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4/8/2019
MARCUS BRIGGS­CLOUD Defendant ­ Appellee
PHILLIP GOVER Defendant ­ Appellee
JILLIAN PAPPAN Defendant ­ Appellee
COURTNEY TSOTIGH Defendant ­ Appellee
UNITED STATES OF AMERICA Intervenor ­ Appellee
https://ecf.ca4.uscourts.gov/n/beam/servlet/TransportRoom

15-1874 Docket
Email: Tore.DeBella@dbr.com [COR NTC Pro Bono] DRINKER BIDDLE & REATH, LLP Suite 1100 1500 K Street, NW Washington, DC 20005­1209
Jesse Ammon Witten Direct: 202­230­5146 Email: Jesse.Witten@dbr.com [COR NTC Pro Bono] DRINKER BIDDLE & REATH, LLP 1500 K Street, NW Washington, DC 20005­1209
Tore Thomas DeBella, II Direct: 202­230­5830 [COR NTC Pro Bono] (see above)
Jesse Ammon Witten Direct: 202­230­5146 [COR NTC Pro Bono] (see above)
Tore Thomas DeBella, II Direct: 202­230­5830 [COR NTC Pro Bono] (see above)
Jesse Ammon Witten Direct: 202­230­5146 [COR NTC Pro Bono] (see above)
Tore Thomas DeBella, II Direct: 202­230­5830 [COR NTC Pro Bono] (see above)
Jesse Ammon Witten Direct: 202­230­5146 [COR NTC Pro Bono] (see above)
Tore Thomas DeBella, II Direct: 202­230­5830 [COR NTC Pro Bono] (see above)
Jesse Ammon Witten Direct: 202­230­5146 [COR NTC Pro Bono] (see above)
Dana James Boente, U. S. Attorney Email: dana.boente@USDOJ.GOV [On Brief] OFFICE OF THE UNITED STATES ATTORNEY Eastern District of Virginia 2100 Jamieson Avenue Alexandria, VA 22314­5194
Thomas L. Casagrande, Assistant Solicitor Direct: 571­272­7351 Email: thomas.casagrande@uspto.gov [On Brief] UNITED STATES PATENT & TRADEMARK OFFICE Office of the Solicitor Madison West ­ 8C43A
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4/8/2019
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ CONSTITUTIONAL LAW PROFESSORS
https://ecf.ca4.uscourts.gov/n/beam/servlet/TransportRoom

15-1874 Docket
600 Dulany Street Alexandria, VA 22314
Mark R. Freeman Direct: 202­353­9018 Email: mark.freeman2@usdoj.gov [COR NTC Government] U. S. DEPARTMENT OF JUSTICE Civil Division, Appellate Section 950 Pennsylvania Avenue, NW Washington, DC 20530­0000
Christina J. Hieber [On Brief] U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530
Thomas W. Krause [On Brief] U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530
Douglas Neal Letter Direct: 202­662­4036 Email: dl1016@georgetown.edu [On Brief] GEORGETOWN UNIVERSITY LAW CENTER Institute for Public Representation 600 New Jersey Avenue, NW Washington, DC 20001
Benjamin C. Mizer [On Brief] U. S. DEPARTMENT OF JUSTICE Civil Division, Ben Franklin Station P. O. Box 878 Washington, DC 20044­0878
Joshua Marc Salzman Direct: 202­532­4747 Email: joshua.m.salzman@usdoj.gov [COR NTC Government] U. S. DEPARTMENT OF JUSTICE Civil Division, Appellate Section Room 7258 950 Pennsylvania Avenue, NW Washington, DC 20530­0000
Molly R. Silfen, Associate Solicitor Email: molly.silfen@uspto.gov [COR NTC Government] UNITED STATES PATENT & TRADEMARK OFFICE Office of the Solicitor P. O. Box 1450 Mail Stop 8 Alexandria, VA 22313­1450
Daniel Tenny Direct: 202­514­1838 Email: daniel.tenny@usdoj.gov [COR NTC Government] U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530
Floyd Abrams
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Amicus Supporting Appellant

CATO INSTITUTE Amicus Supporting Appellant

https://ecf.ca4.uscourts.gov/n/beam/servlet/TransportRoom

15-1874 Docket
Direct: 212­701­3621 Email: FAbrams@cahill.com [COR NTC Retained] CAHILL, GORDON & REINDEL 80 Pine Street New York, NY 10005­0000
Rodney Alan Smolla, Professor Direct: 302­477­2278 Email: rasmolla@widener.edu [On Brief] WIDENER UNIVERSITY SCHOOL OF LAW P. O. Box 7474 Wilmington, DE 19803­0000
Megan Leef Brown Direct: 202­719­7579 Email: mbrown@wileyrein.com [COR NTC Retained] WILEY REIN, LLP 1776 K Street, NW Washington, DC 20006­0000
Jennifer L. Elgin Direct: 202­719­7000 [On Brief] WILEY REIN, LLP 1776 K Street, NW Washington, DC 20006­0000
Christopher Kelly Direct: 202­719­7000 Email: ckelly@wileyrein.com [On Brief] WILEY REIN, LLP 1776 K Street, NW Washington, DC 20006­0000
Douglas Roy McKusick Direct: 434­978­3888 Email: douglasm@rutherford.org [On Brief] RUTHERFORD INSTITUTE P. O. Box 7482 Charlottesville, VA 22906­7482
Dwayne Dason Sam Direct: 202­719­3049 Email: dsam@wileyrein.com [COR NTC Retained] WILEY REIN, LLP 1776 K Street, NW Washington, DC 20006­0000
Ilya Shapiro, Esq. Direct: 202­218­4600 Email: ishapiro@cato.org [On Brief] CATO INSTITUTE 1000 Massachusetts Avenue, N.W. Washington, DC 20001
Joshua S. Turner Direct: 202­719­4807 Email: jturner@wileyrein.com [On Brief] WILEY REIN, LLP 1776 K Street, NW Washington, DC 20006­0000
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John W. Whitehead Direct: 434­978­3888 Email: legal@rutherford.org [On Brief] RUTHERFORD INSTITUTE P. O. Box 7482 Charlottesville, VA 22906­7482

THE RUTHERFORD INSTITUTE Amicus Supporting Appellant

Megan Leef Brown Direct: 202­719­7579 [COR NTC Retained] (see above)

Jennifer L. Elgin Direct: 202­719­7000 [On Brief] (see above)

Christopher Kelly Direct: 202­719­7000 [On Brief] (see above)

Douglas Roy McKusick Direct: 434­978­3888 [On Brief] (see above)

Dwayne Dason Sam Direct: 202­719­3049 [COR NTC Retained] (see above)

Ilya Shapiro, Esq. Direct: 202­218­4600 [On Brief] (see above)

Joshua S. Turner Direct: 202­719­4807 [On Brief] (see above)

John W. Whitehead Direct: 434­978­3888 [On Brief] (see above)

DON BETTELYOUN Amicus Supporting Appellant

Kimberly N. Brown [On Brief] 3909 Virgilia Street Chevy Chase, MD 20815

Thomas Goldstein Direct: 202­362­0636 Email: tgoldstein@goldsteinrussell.com [COR NTC Retained] GOLDSTEIN & RUSSELL, P.C. Suite 850 7475 Wisconsin Avenue Bethesda, MD 20814

FORT MCDERMITT PAIUTE SHOSHONE TRIBE Amicus Supporting Appellant

Kimberly N. Brown [On Brief] (see above)

Thomas Goldstein Direct: 202­362­0636 [COR NTC Retained] (see above)

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BOYD GOURNEAU Amicus Supporting Appellant
NATIVE AMERICAN GUARDIANS ASSOCIATION Amicus Supporting Appellant
PETER MACDONALD Amicus Supporting Appellant
AMERICAN CIVIL LIBERTIES UNION Amicus Supporting Appellant
AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, INCORPORATED
Amicus Supporting Appellant
https://ecf.ca4.uscourts.gov/n/beam/servlet/TransportRoom

15-1874 Docket
Kimberly N. Brown [On Brief] (see above)
Thomas Goldstein Direct: 202­362­0636 [COR NTC Retained] (see above)
Kimberly N. Brown [On Brief] (see above)
Thomas Goldstein Direct: 202­362­0636 [COR NTC Retained] (see above)
Kimberly N. Brown [On Brief] (see above)
Thomas Goldstein Direct: 202­362­0636 [COR NTC Retained] (see above)
Esha Bhandari Direct: 212­284­7369 Email: ebhandari@aclu.org [On Brief] AMERICAN CIVIL LIBERTIES UNION 18th Floor 125 Broad Street New York, NY 10004­2400
Leslie Chambers Mehta Direct: 804­523­2152 Email: lmehta@acluva.org [COR NTC Retained] AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA Suite 1412 701 East Franklin Street Richmond, VA 23219­0000
Lee Rowland Email: lrowland@aclu.org [On Brief] AMERICAN CIVIL LIBERTIES UNION 125 Broad Street New York, NY 10004­2400
Arthur B. Spitzer Email: artspitzer@gmail.com [On Brief] AMERICAN CIVIL LIBERTIES UNION 1400 20th Street, NW Washington, DC 20036­0000
Esha Bhandari Direct: 212­284­7369 [On Brief] (see above)
Leslie Chambers Mehta Direct: 804­523­2152 [COR NTC Retained] (see above)
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15-1874 Docket

Lee Rowland [On Brief] (see above)

Arthur B. Spitzer [On Brief] (see above)

AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL
Amicus Supporting Appellant

Esha Bhandari Direct: 212­284­7369 [On Brief] (see above)

Leslie Chambers Mehta Direct: 804­523­2152 [COR NTC Retained] (see above)

Lee Rowland [On Brief] (see above)

Arthur B. Spitzer [On Brief] (see above)

FIRST AMENDMENT LAWYERS ASSOCIATION Amicus Supporting Appellant

Marc John Randazza Direct: 702­420­2001 Email: mjr@randazza.com [COR NTC Retained] RANDAZZA LEGAL GROUP 4035 South El Capitan Way Las Vegas, NV 89147

RUSS VERSTEEG Amicus Supporting Appellant

Jay Russell VerSteeg Direct: 617­422­7264 Email: rversteeg@nesl.edu [COR NTC Retained] NEW ENGLAND SCHOOL OF LAW 154 Stuart Street Boston, MA 02116

NATIVE AMERICAN ORGANIZATIONS Amicus Supporting Appellee

Larry Stuart Gondelman Direct: 202­872­6723 Email: Larry.Gondelman@ppsv.com [COR NTC Retained] POWERS, PYLES, SUTTER & VERVILLE, PC 7th Floor 1501 M Street, NW Washington, DC 20005­0000

Richard A. Guest [On Brief] NATIVE AMERICAN RIGHTS FUND Suite D 1514 P Street NW Washington, DC 20005

Brandi A. Taylor [On Brief] POWERS, PYLES, SUTTER & VERVILLE, PC 1501 M Street, NW Washington, DC 20005­0000

THE NAVAJO NATION Amicus Supporting Appellee
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Katherine Belzowski Direct: 928­871­6937 [On Brief] NAVAJO NATION DEPARTMENT OF JUSTICE P. O. Box 2010
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FRED T. KOREMATSU CENTER FOR LAW & EQUALITY Amicus Supporting Appellee
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15-1874 Docket
Window Rock, AZ 86515
Ethan Branch Direct: 928­871­6937 [On Brief] NAVAJO NATION DEPARTMENT OF JUSTICE P. O. Box 2010 Window Rock, AZ 86515
Mark Adam Griffin Direct: 206­623­1900 Email: mgriffin@kellerrohrback.com [COR NTC Retained] KELLER & ROHRBACK, LLP Suite 3200 1201 3rd Avenue Seattle, WA 98101­3052
Paul Spruhan Direct: 928­871­6937 [On Brief] NAVAJO NATION DEPARTMENT OF JUSTICE P. O. Box 2010 Window Rock, AZ 86515
Karin B. Swope [On Brief] KELLER & ROHRBACK, LLP 1201 3rd Avenue Seattle, WA 98101­3052
Elvira Castillo Direct: 206­359­3352 Email: ECastillo@perkinscoie.com [COR NTC Retained] PERKINS COIE LLP Suite 4900 1201 3rd Avenue Seattle, WA 98101­3099
Robert Seungchul Chang Direct: 206­398­4025 Email: changro@seattleu.edu [On Brief] FRED T. KOREMATSU CENTER FOR LAW & EQUALITY 1800 Massachusetts Avenue, NW Seattle, WA 98122­1090
David A. Perez Direct: 206­359­6767 Email: dperez@perkinscoie.com [COR NTC Retained] PERKINS COIE LLP Suite 4900 1201 3rd Avenue Seattle, WA 98101­3099
William C. Rava Direct: 206­359­8000 [On Brief] PERKINS COIE LLP Suite 4900 1201 3rd Avenue Seattle, WA 98101­3099
Cara Wallace Direct: 206­359­8000 [On Brief] PERKINS COIE LLP Suite 4900
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1201 3rd Avenue Seattle, WA 98101­3099

Dane A. Westermeyer Direct: 206­359­8000 [On Brief] PERKINS COIE LLP Suite 4900 1201 3rd Avenue Seattle, WA 98101­3099

NATIONAL NATIVE AMERICAN BAR ASSOCIATION Amicus Supporting Appellee

Elvira Castillo Direct: 206­359­3352 [COR NTC Retained] (see above)

Robert Seungchul Chang Direct: 206­398­4025 [On Brief] (see above)

David A. Perez Direct: 206­359­6767 [COR NTC Retained] (see above)

William C. Rava Direct: 206­359­8000 [On Brief] (see above)

Cara Wallace Direct: 206­359­8000 [On Brief] (see above)

Dane A. Westermeyer Direct: 206­359­8000 [On Brief] (see above)

NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION Amicus Supporting Appellee

Elvira Castillo Direct: 206­359­3352 [COR NTC Retained] (see above)

Robert Seungchul Chang Direct: 206­398­4025 [On Brief] (see above)

David A. Perez Direct: 206­359­6767 [COR NTC Retained] (see above)

William C. Rava Direct: 206­359­8000 [On Brief] (see above)

Cara Wallace Direct: 206­359­8000 [On Brief] (see above)

Dane A. Westermeyer Direct: 206­359­8000 [On Brief] (see above)

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NATIVE HAWAIIAN BAR ASSOCIATION Amicus Supporting Appellee
CALIFORNIA INDIAN LAW ASSOCIATION Amicus Supporting Appellee

15-1874 Docket
Elvira Castillo Direct: 206­359­3352 [COR NTC Retained] (see above)
Robert Seungchul Chang Direct: 206­398­4025 [On Brief] (see above)
David A. Perez Direct: 206­359­6767 [COR NTC Retained] (see above)
William C. Rava Direct: 206­359­8000 [On Brief] (see above)
Cara Wallace Direct: 206­359­8000 [On Brief] (see above)
Dane A. Westermeyer Direct: 206­359­8000 [On Brief] (see above)
Elvira Castillo Direct: 206­359­3352 [COR NTC Retained] (see above)
Robert Seungchul Chang Direct: 206­398­4025 [On Brief] (see above)
David A. Perez Direct: 206­359­6767 [On Brief] (see above)
William C. Rava Direct: 206­359­8000 [On Brief] (see above)
Cara Wallace Direct: 206­359­8000 [On Brief] (see above)
Dane A. Westermeyer Direct: 206­359­8000 [On Brief] (see above)

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15-1874 Docket

PRO­FOOTBALL, INC.

Plaintiff ­ Appellant

v.

AMANDA BLACKHORSE; MARCUS BRIGGS­CLOUD; PHILLIP GOVER; JILLIAN PAPPAN; COURTNEY TSOTIGH

Defendants ­ Appellees

UNITED STATES OF AMERICA

Intervenor ­ Appellee

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

CONSTITUTIONAL LAW PROFESSORS; CATO INSTITUTE; THE RUTHERFORD INSTITUTE; DON BETTELYOUN; FORT MCDERMITT PAIUTE SHOSHONE TRIBE; BOYD GOURNEAU; NATIVE AMERICAN GUARDIANS ASSOCIATION; PETER MACDONALD; AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA; AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL; FIRST AMENDMENT LAWYERS ASSOCIATION; RUSS VERSTEEG

Amici Supporting Appellant

NATIVE AMERICAN ORGANIZATIONS; THE NAVAJO NATION; FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY; NATIONAL NATIVE AMERICAN BAR ASSOCIATION; NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION; NATIVE HAWAIIAN BAR ASSOCIATION; CALIFORNIA INDIAN LAW ASSOCIATION

Amici Supporting Appellee

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08/06/2015

1

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Case docketed. Originating case number: 1:14­cv­01043­GBL­IDD. Case manager: JeffNeal. [15­1874] JSN [Entered: 08/06/2015 11:10 AM]

08/06/2015

2

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DOCKETING NOTICE issued Re: [1] case docketed Initial forms due within 14 days. Originating case number: 1:14­cv­01043­GBL­IDD. Mailed to: Jennifer Criss, Adam Kunz. [15­1874] JSN [Entered: 08/06/2015 04:38 PM]

08/06/2015

3

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BRIEFING ORDER filed. Mailed to: Jennifer Criss, Adam Kunz. Opening Brief and Appendix due 09/15/2015. Response Brief due 10/19/2015 [15­1874] JSN [Entered: 08/06/2015 04:41 PM]

08/06/2015

4

1 pg, 16.59 KB

APPEARANCE OF COUNSEL (Local Rule 46(c)) by Daniel Tenny for US.[999636118] [15­1874] Daniel Tenny [Entered: 08/06/2015 04:44 PM]

08/07/2015

5

1 pg, 16.57 KB

APPEARANCE OF COUNSEL (Local Rule 46(c)) by Molly R. Silfen for US.[999636830] [15­1874] Molly Silfen [Entered: 08/07/2015 05:08 PM]

08/07/2015

6

1 pg, 16.85 KB

APPEARANCE OF COUNSEL (Local Rule 46(c)) by Sanford I. Weisburst for Pro­Football, Inc.. [999636845] [15­1874] Sanford Weisburst [Entered: 08/07/2015 06:50 PM]

08/07/2015

7

1 pg, 16.81 KB

APPEARANCE OF COUNSEL (Local Rule 46(c)) by Todd Anten for Pro­Football, Inc..[999636846] [15­ 1874] Todd Anten [Entered: 08/07/2015 06:53 PM]

08/10/2015

8

1 pg, 54.97 KB

APPEARANCE OF COUNSEL (Local Rule 46(c)) by Jeffrey J. Lopez for Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh.[999637654] [15­1874] Jeffrey Lopez [Entered: 08/10/2015 03:45 PM]

08/10/2015

9

1 pg, 54.94 KB

APPEARANCE OF COUNSEL (Local Rule 46(c)) by Jesse A. Witten for Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh.[999637659] [15­1874] Jesse Witten [Entered: 08/10/2015 03:48 PM]

08/10/2015

10

1 pg, 54.96 KB

APPEARANCE OF COUNSEL (Local Rule 46(c)) by Tore T. DeBella for Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh.[999637665] [15­1874] Tore DeBella [Entered: 08/10/2015 03:49 PM]

08/10/2015

11

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APPEARANCE OF COUNSEL (Local Rule 46(c)) by Patrick H. Thompson for Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh.[999637669] [15­1874] Patrick Thompson [Entered: 08/10/2015 03:51 PM]

08/11/2015

12

2 pg, 71.39 KB

DISCLOSURE OF CORPORATE AFFILIATIONS (Local Rule 26.1) by Appellant Pro­Football, Inc.. Was any question on Disclosure Form answered yes? Yes [999638694] [15­1874] Robert Raskopf [Entered: 08/11/2015 04:08 PM]

08/11/2015

13

5 pg, 36.76 KB

MOTION by Appellant Pro­Football, Inc. to proceed with a deferred appendix (FRAP 30(c)), to extend filing time for opening brief until September 25, 2015. Date and method of service: 08/11/2015 ecf. [999638717] [15­1874] Robert Raskopf [Entered: 08/11/2015 04:20 PM]

08/12/2015

14

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ORDER filed [999639050] granting Motion to proceed with a deferred appendix (FRAP 30(c)) [13]; granting Motion to extend filing time [13] Copies to all parties.. [15­1874] JSN [Entered: 08/12/2015 10:06 AM]

08/12/2015

15

2 pg, 17.93 KB

BRIEFING ORDER filed ­­ FRAP 30(c) Schedule. Mailed to: Jennifer Criss, Adam Scott. Page­Proof Opening Brief due: 09/25/2015. Page­Proof Response Brief due: 11/09/2015. Appendix under FRAP 30(c) due: 12/15/2015. All Briefs in Final Form due: 12/22/2015. [15­1874] JSN [Entered: 08/12/2015 10:15 AM]

08/12/2015

16

1 pg, 16.59 KB

APPEARANCE OF COUNSEL (Local Rule 46(c)) by Joshua M. Salzman for US.[999639106] [15­1874] Joshua Salzman [Entered: 08/12/2015 10:43 AM]

08/18/2015

17

2 pg, 91.99 KB

DISCLOSURE OF CORPORATE AFFILIATIONS (Local Rule 26.1) by Appellees Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh. Was any question on Disclosure Form answered yes? No [999642935] [15­1874] Jesse Witten [Entered: 08/18/2015 04:13 PM]

08/20/2015

18

1 pg, 79.34 KB

APPEARANCE OF COUNSEL (Local Rule 46(c)) by Robert L. Raskopf for Pro­Football, Inc..[999644090] [15­1874] Robert Raskopf [Entered: 08/20/2015 10:26 AM]

08/20/2015

19

1 pg, 79.07 KB

APPEARANCE OF COUNSEL (Local Rule 46(c)) by Jessica A. Rose for Pro­Football, Inc..[999644097] [15­1874] Jessica Rose [Entered: 08/20/2015 10:29 AM]

08/20/2015

20

DOCKETING STATEMENT by Appellant Pro­Football, Inc.. [15­1874] Robert Raskopf [Entered:

5 pg, 135.92 KB 08/20/2015 04:36 PM]

08/25/2015

21

5 pg, 22.3 KB

Initial mediation conference scheduled. [15­1874] MRB [Entered: 08/25/2015 08:33 AM]

08/27/2015

22

1 pg, 16.6 KB

APPEARANCE OF COUNSEL (Local Rule 46(c)) by Mark R Freeman for US.[999649544] [15­1874] Mark Freeman [Entered: 08/27/2015 05:51 PM]

09/09/2015

23

APPEARANCE OF COUNSEL (Local Rule 46(c)) by Lisa S. Blatt for Pro­Football, Inc..[999656867] [15­

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09/09/2015

24

5 pg, 12.47 KB

09/09/2015

25

2 pg, 9.24 KB

09/17/2015

26

5 pg, 118.1 KB

09/17/2015

28

2 pg, 8.95 KB

10/30/2015

29

82 pg, 307.64 KB

11/02/2015

30

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11/02/2015

31

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11/05/2015

32

43 pg, 187.6 KB

11/05/2015

49

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33

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11/06/2015

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11/06/2015

35

49 pg, 315.02 KB

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38

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11/06/2015

39

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15-1874 Docket
1874] Lisa Blatt [Entered: 09/09/2015 01:53 PM]
MOTION by Appellant Pro­Football, Inc. to extend filing time for opening brief until October 30, 2015. Date and method of service: 09/09/2015 ecf. [999656873] [15­1874] Lisa Blatt [Entered: 09/09/2015 01:56 PM]
ORDER filed [999656963] granting Motion to extend filing time [24], updating/ resuming Rule 30(c) briefing order deadlines. Page­Proof Opening Brief due: 10/30/2015. Page­Proof Response Brief due: 01/14/2016. Appendix under FRAP 30(c) due: 02/19/2016. All briefs in final form due: 02/26/2016. Copies to all parties.. [15­1874] JSN [Entered: 09/09/2015 02:44 PM]
MOTION by Appellee US to file separate briefs (Local Rule 28(d)) [26]. Date and method of service: 09/17/2015 ecf. [999662044] [15­1874] Daniel Tenny [Entered: 09/17/2015 11:02 AM]
ORDER filed [999662319] granting Motion to file separate brief (Local Rule 28(d)). [26] Copies to all parties.. [15­1874] JSN [Entered: 09/17/2015 02:08 PM]
FRAP 30(c) PAGE­PROOF OPENING BRIEF by Appellant Pro­Football, Inc.. [15­1874] Lisa Blatt [Entered: 10/30/2015 04:51 PM]
(ENTRY RESTRICTED) AMICUS BRIEF on Petition for Rehearing (with appearance of counsel) by Russ VerSteeg, Amicus Curiae. Supporting: appellant. [999691088] [15­1874]­­[Edited 11/05/2015 by JSN] Jay VerSteeg [Entered: 11/02/2015 04:25 PM]
(ENTRY RESTRICTED) AMICUS CURIAE/INTERVENOR BRIEF by Russ VerSteeg, Amicus Curiae in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/02/2015. [999691108] [15­1874]­­[Edited 11/20/2015 by JSN] Jay VerSteeg [Entered: 11/02/2015 04:31 PM]
AMICUS CURIAE/INTERVENOR BRIEF by Rodney Smolla, Floyd Abrams, Ronald K. L. Collins, Erin Daly, Eric M. Freedman, Alan E. Garfield, James Gibson, Hugh C, Hansen, Seth F. Kriemer, Mark Lemley, James R. May, Mary­Rose Panpandrea, Jennifer E. Rothman, Suzanna Sherry, Nadine Strossen, et al in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/05/2015. [999693779] [15­1874] Floyd Abrams [Entered: 11/05/2015 10:44 AM]
AMICUS CURIAE BRIEF (PAPER) file­stamped, on behalf of Constitutional Law Professors. Number of pages: [43]. Number of Copies: [1]. Entered on Docket Date: 11/17/2015.[999700928] [15­1874] JSN [Entered: 11/17/2015 03:19 PM]
MOTION by Potential Amicus Curiae Russ Versteeg to file amicus curiae brief (FRAP 29(e)) without consent of all parties on appeal within time allowed by FRAP 29(e).. Date and method of service: 11/06/2015 ecf. [999694512] [15­1874] Jay VerSteeg [Entered: 11/06/2015 09:47 AM]
(ENTRY RESTRICTED) AMICUS CURIAE/INTERVENOR BRIEF by The Rutherford Institute as amicus curiae; Cato Institute as amicus curiae in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/06/2015. [999694554] [15­1874]­­[Edited 11/06/2015 by JSN] Megan Brown [Entered: 11/06/2015 10:35 AM]
Corrected AMICUS CURIAE/INTERVENOR BRIEF by Amici Supporting Appellant Cato Institute and The Rutherford Institute in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/06/2015. [999694592] [15­ 1874] Megan Brown [Entered: 11/06/2015 11:05 AM]
NOTICE ISSUED to Pro­Football, Inc., Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan, Courtney Tsotigh, and United States requesting response to Motion to file amicus curiae brief [33]. Response due: 11/13/2015.[999694704].. [15­1874] JSN [Entered: 11/06/2015 12:23 PM]
AMICUS CURIAE/INTERVENOR BRIEF by DON BETTELYOUN, FORT MCDERMITT PAIUTE SHOSHONE TRIBE, BOYD GOURNEAU, NATIVE AMERICAN GUARDIANS ASSOCIATION, AND PETER MACDONALD, AS AMICI CURIAE IN SUPPORT OF PLAINTIFF­APPELLANT in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: hand delivery. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/06/2015. [999694954] [15­1874] Thomas Goldstein [Entered: 11/06/2015 03:43 PM]
AMICUS CURIAE/INTERVENOR BRIEF by American Civil Liberties Union, American Civil Liberties Union of Virginia, American Civil Liberties Union of the Nation's Captial, Amici Curiae in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: hand delivery. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/09/2015. [999694999] [15­1874] Hope Amezquita [Entered: 11/06/2015 04:01 PM]
AMICUS CURIAE/INTERVENOR BRIEF by Marc J. Randazza, attorney for Amicus Curiae First Amendment Lawyers Association in electronic and paper format. Type of Brief: Amicus Curiae. Method of

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11/06/2015

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11/06/2015

52

11/06/2015

53

11/09/2015

40

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11/09/2015

41

3 pg, 7.27 KB

11/09/2015

42

3 pg, 7.27 KB

11/09/2015

43

1 pg, 54.55 KB

11/09/2015

44

2 pg, 9.37 KB

11/09/2015

45

1 pg, 10.6 KB

11/10/2015

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11/10/2015

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11/10/2015

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11/16/2015

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12/23/2015

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12/23/2015

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2 pg, 9.49 KB

02/04/2016

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02/04/2016

58

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02/11/2016

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15-1874 Docket
Filing Paper Copies: hand delivery. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/09/2015. [999695109] [15­1874] Marc Randazza [Entered: 11/06/2015 08:02 PM]
AMICUS CURIAE BRIEF (PAPER) file­stamped, on behalf of Cato Institute and The Rutherford Institute. Number of pages: [48]. Number of Copies: [1]. Entered on Docket Date: 11/17/2015.[999700931] [15­ 1874] JSN [Entered: 11/17/2015 03:21 PM]
AMICUS CURIAE BRIEF (PAPER) file­stamped, on behalf of Don Bettelyoun, Fort McDermitt Paiute Shoshone Tribe, Boyd Gourneau, Peter Macdonald and Native American Guardians Association. Number of pages: [23]. Number of Copies: [1]. Entered on Docket Date: 11/17/2015.[999700934] [15­1874] JSN [Entered: 11/17/2015 03:22 PM]
AMICUS CURIAE BRIEF (PAPER) file­stamped, on behalf of ACLU, ACLU VA and American Civil Liberties Union of the Nation's Capital. Number of pages: [38]. Number of Copies: [1]. Entered on Docket Date: 11/17/2015.[999700938] [15­1874] JSN [Entered: 11/17/2015 03:24 PM]
AMICUS CURIAE BRIEF (PAPER) file­stamped, on behalf of First Amendment Lawyers Association. Number of pages: [27]. Number of Copies: [4]. Entered on Docket Date: 11/17/2015.[999700939] [15­ 1874] JSN [Entered: 11/17/2015 03:24 PM]
DOCKETING FORMS FOLLOW­UP NOTICE ISSUED to Attorney Hope Renee Amezquita for Amici Supporting Appellant ACLU VA, ACLU and American Civil Liberties Union of the Nation's Capital re: filing of appearance form (Loc.R. 46(g)). Appearance form due on 11/13/2015. [15­1874] JSN [Entered: 11/09/2015 03:11 PM]
RESPONSE/ANSWER by Pro­Football, Inc. to Motion to file amicus curiae brief [33], notice requesting response [36]. [15­1874] Lisa Blatt [Entered: 11/09/2015 04:28 PM]
RESPONSE/ANSWER by Pro­Football, Inc. to Motion to file amicus curiae brief [33], notice requesting response [36]. [15­1874] Lisa Blatt [Entered: 11/09/2015 04:39 PM]
APPEARANCE OF COUNSEL (Local Rule 46(c)) by Hope R. Amezquita for ACLU VA.[999696142] [15­ 1874] Hope Amezquita [Entered: 11/09/2015 04:57 PM]
ORDER filed [999696148] granting Motion to file amicus curiae brief [33]. Copies to all parties.. [15­1874] JSN [Entered: 11/09/2015 05:09 PM]
Docket correction requested from Jay Russell VerSteeg for Russ Versteeg. Re: [31] amicus curiae Brief. [15­1874] JSN [Entered: 11/09/2015 05:14 PM]
(ENTRY RESTRICTED) Corrected AMICUS CURIAE/INTERVENOR BRIEF by Amicus Supporting Appellant Russ Versteeg in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/10/2015. [999696666] [15­1874]­­[Edited 11/10/2015 by JSN] Jay VerSteeg [Entered: 11/10/2015 10:46 AM]
Corrected AMICUS CURIAE/INTERVENOR BRIEF by Amicus Supporting Appellant Russ Versteeg in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/10/2015. [999696711] [15­1874] Jay VerSteeg [Entered: 11/10/2015 11:08 AM]
AMICUS CURIAE BRIEF (PAPER) file­stamped, on behalf of Russ Versteeg. Number of pages: [34]. Number of Copies: [1]. Entered on Docket Date: 11/17/2015.[999700942] [15­1874] JSN [Entered: 11/17/2015 03:26 PM]
Letter re: Statements pursuant to Rule 1.12 of the Virginia Rules of Professional Conduct by Appellant Pro­Football, Inc.. [999700053] [15­1874] Lisa Blatt [Entered: 11/16/2015 05:48 PM]
MOTION by Appellee US to extend filing time for response brief until February 12, 2016. Date and method of service: 12/23/2015 ecf. [999724667] [15­1874] Daniel Tenny [Entered: 12/23/2015 02:03 PM]
ORDER filed [999724782] granting Motion to extend filing time [55], updating/ resuming Rule 30(c) briefing order deadlines Page­Proof Response Briefs due: 02/04/2016. Appendix under FRAP 30(c) due: 03/11/2016. All briefs in final form due: 03/18/2016. [15­1874] JSN [Entered: 12/23/2015 03:52 PM]
FRAP 30(c) PAGE­PROOF RESPONSE BRIEF by Appellee US. [15­1874] Joshua Salzman [Entered: 02/04/2016 06:02 PM]
FRAP 30(c) PAGE­PROOF RESPONSE BRIEF by Appellees Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh. [15­1874] Jesse Witten [Entered: 02/04/2016 09:55 PM]
(ENTRY RESTRICTED) AMICUS CURIAE/INTERVENOR BRIEF by Appellees Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 02/11/2016. [999754112] [15­1874]­­[Edited 02/16/2016 by JSN] Larry Gondelman [Entered: 02/11/2016 04:20 PM]

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(ENTRY RESTRICTED) AMICUS CURIAE/INTERVENOR BRIEF by The Navajo Nation in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 02/12/2016. [999754154] [15­1874]­­[Edited 02/16/2016 by JSN] Mark Griffin [Entered: 02/11/2016 06:33 PM]

02/11/2016

61

44 pg, 271.07 KB

AMICUS CURIAE/INTERVENOR BRIEF by Fred T. Korematsu Center for Law and Equality, National Native American Bar Association, National Asian Pacific American Bar Association, Native Hawaiian Bar Association, and California Indian Law Ass'n in Support of Defendants­Appellees and Affirmance in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 02/12/2016. [999754155] [15­1874] Elvira Castillo [Entered: 02/11/2016 07:54 PM]

02/11/2016

66

AMICUS CURIAE BRIEF (PAPER) file­stamped, on behalf of CALIFORNIA INDIAN LAW ASSOCIATION, FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY, NATIONAL NATIVE AMERICAN BAR ASSOCIATION, NATIVE HAWAIIAN BAR ASSOCIATION, National Asian Pacific American Bar Association and Native American Organizations. Number of pages: [46]. Number of Copies: [1]. Entered on Docket Date: 02/19/2016. Received by clerk date: 02/12/2016. [999758471] [15­1874] JSN [Entered: 02/19/2016 02:42 PM]

02/11/2016

67

AMICUS CURIAE BRIEF (PAPER) file­stamped, on behalf of Native American Organizations. Number of pages: [43]. Number of Copies: [1]. Entered on Docket Date: 02/19/2016. Received by clerk date: 02/11/2016. [999758481] [15­1874] JSN [Entered: 02/19/2016 02:45 PM]

02/12/2016

62

43 pg, 546.26 KB

Corrected AMICUS CURIAE/INTERVENOR BRIEF by Native American Organizations in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 02/11/2016. [999754670] [15­1874] Larry Gondelman [Entered: 02/12/2016 02:29 PM]

02/12/2016

63

0 pg, 0 KB

(ENTRY RESTRICTED) Corrected AMICUS CURIAE/INTERVENOR BRIEF by The Navajo Nation in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 02/12/2016. [999754932] [15­1874]­­[Edited 02/23/2016 by JSN] Mark Griffin [Entered: 02/12/2016 05:50 PM]

02/16/2016

64

1 pg, 16.81 KB

APPEARANCE OF COUNSEL (Local Rule 46(c)) by David A. Perez for CALIFORNIA INDIAN LAW ASSOCIATION, FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY, NATIONAL NATIVE AMERICAN BAR ASSOCIATION, NATIVE HAWAIIAN BAR ASSOCIATION and National Asian Pacific American Bar Association.[999755529] [15­1874] David Perez [Entered: 02/16/2016 12:46 PM]

02/16/2016

65

1 pg, 9.15 KB

02/22/2016

68

20 pg, 51.81 KB

Docket correction requested from Mark Adam Griffin for The Navajo Nation. Re: [63] amicus curiae Brief. Corrected brief due by 02/26/2016. [15­1874] JSN [Entered: 02/16/2016 01:00 PM]
Corrected AMICUS CURIAE/INTERVENOR BRIEF by Amicus Supporting Appellee The Navajo Nation in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 02/22/2016. [999759652] [15­1874] Mark Griffin [Entered: 02/22/2016 05:53 PM]

02/22/2016

69

CORRECTED AMICUS BRIEF (PAPER) file­stamped on behalf of The Navajo Nation correcting and superseding amicus curiae Brief [63]. Number of pages [21]. Number of Copies: [4]. Entered on Docket Date: 02/23/2016. Received by clerk date: 02/23/2016. [999760586] [15­1874] JSN [Entered: 02/23/2016 03:35 PM]

03/11/2016

70

FULL ELECTRONIC APPENDIX and full paper appendix by Appellant Pro­Football, Inc.. Method of Filing

643 pg, 113.41 MB Paper Copies: mail. Date paper copies mailed dispatched or delivered to court: 03/14/2016. [999773105]

[15­1874] Lisa Blatt [Entered: 03/11/2016 06:06 PM]

03/11/2016

71

FULL ELECTRONIC APPENDIX and full paper appendix by Appellant Pro­Football, Inc.. Method of Filing

698 pg, 104.02 MB Paper Copies: mail. Date paper copies mailed dispatched or delivered to court: 03/14/2016. [999773106]

[15­1874] Lisa Blatt [Entered: 03/11/2016 06:08 PM]

03/11/2016

72

FULL ELECTRONIC APPENDIX and full paper appendix by Appellant Pro­Football, Inc.. Method of Filing

1304 pg, 98.75 MB Paper Copies: mail. Date paper copies mailed dispatched or delivered to court: 03/14/2016. [999773107]

[15­1874] Lisa Blatt [Entered: 03/11/2016 06:10 PM]

03/11/2016

73

SEALED APPENDIX VOLUME(S) (court access only) by Appellant Pro­Football, Inc. in electronic and paper format. Method of Filing Paper Copies: mail. Date Copies Mailed, Dispatched, or Delivered to court: 03/14/2016.. Filed Ex parte: N. [15­1874] Lisa Blatt [Entered: 03/11/2016 06:11 PM]

03/11/2016

74

1 pg, 21.23 KB

CERTIFICATE OF CONFIDENTIALITY (Local Rule 25(c)) by Pro­Football, Inc.. Sealing Required: Yes. Description of document referenced by certificate: Sealed Volume of Joint Appendix. [15­1874] Lisa Blatt [Entered: 03/11/2016 06:12 PM]

03/11/2016

76

FRAP 30(c) APPENDIX (PAPER) file­stamped on behalf of Pro­Football, Inc.. Sealed volume: Y. Total number of volumes (including any sealed): 5. Total number of pages in all volumes: 2716. Number of Copies: [1]. Entered on Docket Date: 03/15/2016. Received by clerk date: 03/15/2016. [999775109] [15­ 1874] JSN [Entered: 03/15/2016 03:56 PM]

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ORDER filed [999773370] sealing joint appendix volume V. Copies to all parties.. [15­1874] JSN [Entered: 03/14/2016 10:07 AM]

03/17/2016

77

SUPPLEMENTAL AUTHORITIES (FRAP 28(j)) by Appellee US. [999776758]. [15­1874] Joshua Salzman

3 pg, 141.54 KB [Entered: 03/17/2016 12:39 PM]

03/18/2016

78

BRIEF by Appellee US in electronic and paper format. Type of Brief: RESPONSE. Method of Filing Paper

68 pg, 318.29 KB Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 03/18/2016. [999777285] [15­

1874] Joshua Salzman [Entered: 03/18/2016 09:20 AM]

03/18/2016

79

77 pg, 484.23 KB

BRIEF by Appellees Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh in electronic and paper format. Type of Brief: RESPONSE. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 03/18/2016. [999777476] [15­ 1874] Jesse Witten [Entered: 03/18/2016 11:20 AM]

03/18/2016

80

BRIEF by Appellant Pro­Football, Inc. in electronic and paper format. Type of Brief: OPENING. Method of

82 pg, 380.85 KB Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 03/18/2016.

[999777785] [15­1874] Lisa Blatt [Entered: 03/18/2016 03:16 PM]

03/18/2016

81

BRIEF by Appellant Pro­Football, Inc. in electronic and paper format. Type of Brief: REPLY. Method of

40 pg, 217.44 KB Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 03/18/2016.

[999777788] [15­1874] Lisa Blatt [Entered: 03/18/2016 03:17 PM]

03/18/2016

82

OPENING BRIEF (PAPER) file­stamped, on behalf of Pro­Football, Inc.. Number of pages: [83]. Sufficient: YES. Number of Copies: [1]. Entered on Docket Date: 03/21/2016. Received by clerk date: 03/21/2016. [999778700] [15­1874] JSN [Entered: 03/21/2016 02:54 PM]

03/18/2016

83

RESPONSE BRIEF (PAPER) file­stamped, on behalf of Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh. Number of pages: [78]. Sufficient: YES. Number of Copies: [1]. Entered on Docket Date: 03/21/2016. Received by clerk date: 03/21/2016. [999778704] [15­ 1874] JSN [Entered: 03/21/2016 02:55 PM]

03/18/2016

84

RESPONSE BRIEF (PAPER) file­stamped, on behalf of US. Number of pages: [69]. Sufficient: YES. Number of Copies: [1]. Entered on Docket Date: 03/21/2016. Received by clerk date: 03/21/2016. [999778708] [15­1874] JSN [Entered: 03/21/2016 02:56 PM]

03/18/2016

85

REPLY BRIEF (PAPER) file­stamped, on behalf of Pro­Football, Inc.. Number of pages: [41]. Sufficient: YES. Number of Copies: [1]. Entered on Docket Date: 03/21/2016. Received by clerk date: 03/21/2016. [999778711] [15­1874] JSN [Entered: 03/21/2016 02:57 PM]

04/01/2016

86

3 pg, 12.77 KB

MOTION by Appellees Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh to withdraw/relieve/substitute counsel.Attorney or client motion? Attorney. Was a copy of the motion served on the defendant? N. Was the defendant advised of right to file response within 7 days? N. Date and method of service: 04/01/2016 ecf. [999786949] [15­1874] Jeffrey Lopez [Entered: 04/01/2016 10:36 AM]

04/01/2016

87

2 pg, 9.55 KB

ORDER filed [999786994] granting Motion to withdraw counsel [86]. Copies to all parties.. [15­1874] JSN [Entered: 04/01/2016 11:15 AM]

04/07/2016

88

SUPPLEMENTAL AUTHORITIES (FRAP 28(j)) by Appellee US. [999791244]. [15­1874] Molly Silfen

3 pg, 100.85 KB [Entered: 04/07/2016 04:36 PM]

04/11/2016

89

1 pg, 8.66 KB

SUPPLEMENTAL AUTHORITIES (FRAP 28(j)) response by Appellant Pro­Football, Inc.. [999792191]. [15­1874] Lisa Blatt [Entered: 04/11/2016 08:54 AM]

04/22/2016

90

1 pg, 79.76 KB

SUPPLEMENTAL AUTHORITIES (FRAP 28(j)) by Appellee US. [999801452]. [15­1874] Daniel Tenny [Entered: 04/22/2016 10:02 AM]

04/25/2016

91

Letter re: petition for a writ of certiorari before judgment by Appellant Pro­Football, Inc.. [999803984] [15­

43 pg, 268.29 KB 1874] Lisa Blatt [Entered: 04/25/2016 05:35 PM]

04/26/2016

92

2 pg, 10.27 KB

SUPPLEMENTAL AUTHORITIES (FRAP 28(j)) response by Appellant Pro­Football, Inc.. [999805439]. [15­1874] Lisa Blatt [Entered: 04/26/2016 06:43 PM]

04/27/2016

93

1 pg, 53.67 KB

SUPREME COURT REMARK­­petition for writ of certiorari filed. 04/26/2016. 15­1311. [15­1874] SJC [Entered: 04/27/2016 02:43 PM]

06/28/2016

94

1 pg, 65.73 KB

Letter re: Response to Petition for Writ of Certiorari Before Judgment [93] certiorari filed supreme court , [91] Letter by Appellees Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh. [999871990] [15­1874] Jesse Witten [Entered: 06/28/2016 11:35 AM]

07/15/2016

95

2 pg, 15.89 KB

CASE TENTATIVELY CALENDARED for oral argument during the 10/25/16 ­ 10/28/16 argument session. Notify Clerk's Office of any scheduling conflict by: 07/25/2016 [15­1874] JLC [Entered: 07/15/2016 11:06 AM]

07/20/2016

96

1 pg, 4.91 KB

NOTICE RE: CONFLICT WITH PROPOSED ARGUMENT DATES by Appellant Pro­Football, Inc.. Argument Session: 10/25/16 ­ 10/28/16 [15­1874] Lisa Blatt [Entered: 07/20/2016 04:15 PM]

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07/26/2016

97

08/02/2016

98

2 pg, 16.29 KB

08/03/2016

99

Additional copies of OPENING BRIEF, JOINT APPENDIX (vols. 1­5 vol. 5 SEALED), REPLY BRIEF, and RESPONSE BRIEF received from Pro­Football, Inc. and Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh. [15­1874] AC [Entered: 07/26/2016 08:44 AM]
COPY FOLLOW­UP NOTICE issued to ACLU, ACLU VA, American Civil Liberties Union of the Nation's Capital, Don Bettelyoun, Cato Institute, Constitutional Law Professors, Fort McDermitt Paiute Shoshone Tribe, Boyd Gourneau, Peter Macdonald, Native American Guardians Association, The Rutherford Institute, Russ Versteeg, CALIFORNIA INDIAN LAW ASSOCIATION, FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY, NATIONAL NATIVE AMERICAN BAR ASSOCIATION, NATIVE HAWAIIAN BAR ASSOCIATION, National Asian Pacific American Bar Association, Native American Organizations and US requesting additional copies of amicus briefs and response brief of the US. Additional copies due 08/08/2016 [15­1874] AC [Entered: 08/02/2016 09:11 AM]
Additional copies of RESPONSE BRIEF received from US. [15­1874] AD [Entered: 08/03/2016 02:48 PM]

08/04/2016

100

Additional copies of AMICUS BRIEF received from Native American Organizations. [15­1874] AC [Entered: 08/04/2016 10:36 AM]

08/04/2016

101

1 pg, 13.39 KB

CASE CONTINUED FROM TENTATIVE CALENDAR TO AWAITING CALENDAR. [999904603] [15­1874] JLC [Entered: 08/04/2016 12:51 PM]

08/05/2016

102

Additional copies of AMICUS BRIEF received from CALIFORNIA INDIAN LAW ASSOCIATION, FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY, NATIONAL NATIVE AMERICAN BAR ASSOCIATION, NATIVE HAWAIIAN BAR ASSOCIATION and National Asian Pacific American Bar Association. [15­1874] AD [Entered: 08/05/2016 11:37 AM]

08/05/2016

103

Additional copies of AMICUS BRIEF received from ACLU, ACLU VA and American Civil Liberties Union of the Nation's Capital. [15­1874] AC [Entered: 08/05/2016 01:39 PM]

08/05/2016

104

Additional copies of AMICUS BRIEF received from Constitutional Law Professors. [15­1874] AD [Entered: 08/05/2016 04:11 PM]

08/12/2016

105

Additional copies of AMICUS BRIEF received from Cato Institute and The Rutherford Institute. [15­1874] AC [Entered: 08/12/2016 04:03 PM]

08/26/2016

106

2 pg, 16.8 KB

CASE TENTATIVELY CALENDARED for oral argument during the 12/6/16 ­ 12/9/16 argument session. Additional copies due:09/02/2016. Notify Clerk's Office of any scheduling conflict by: 09/06/2016 [15­ 1874] JLC [Entered: 08/26/2016 10:36 AM]

09/14/2016

107

1 pg, 12.47 KB

COPY FOLLOW­UP NOTICE issued to Don Bettelyoun, Fort McDermitt Paiute Shoshone Tribe, Boyd Gourneau, Peter Macdonald, Native American Guardians Association and Russ Versteeg requesting additional copies of amicus briefs. Additional copies due 09/19/2016 [15­1874] AC [Entered: 09/14/2016 02:04 PM]

09/16/2016

108

Additional copies of AMICUS BRIEF received from Russ Versteeg. [15­1874] AD [Entered: 09/16/2016 11:03 AM]

09/21/2016

109

Additional copies of AMICUS BRIEF received from Don Bettelyoun, Fort McDermitt Paiute Shoshone Tribe, Boyd Gourneau, Peter Macdonald and Native American Guardians Association. [15­1874] AWW [Entered: 09/21/2016 10:13 AM]

09/29/2016

110

2 pg, 30.83 KB

CASE CALENDARED for oral argument. Date: 12/09/2016. Registration Time: 7:45 ­ 8:00. Daily Arguments Begin: 8:30. Oral argument acknowledgment form due within 5 days. [15­1874] JLC [Entered: 09/29/2016 06:47 PM]

10/04/2016

111

1 pg, 63.25 KB

SUPREME COURT REMARK­­petition for writ of certiorari before judgment denied. 10/03/2016 [15­1874] SJC [Entered: 10/04/2016 09:55 AM]

10/04/2016

112

1 pg, 76.7 KB

ORAL ARGUMENT ACKNOWLEDGMENT by Appellant Pro­Football, Inc.. Counsel arguing: Lisa S. Blatt Opening argument time: 15 minutes Rebuttal argument time: 5 minutes [999941763] [15­1874] Lisa Blatt [Entered: 10/04/2016 04:00 PM]

10/04/2016

113

Letter re: request for postponement of argument in light of Lee v. Tam by Appellant Pro­Football, Inc..

2 pg, 155.58 KB [999941780] [15­1874] Lisa Blatt [Entered: 10/04/2016 04:10 PM]

10/05/2016

114

4 pg, 8.82 KB

MOTION by Appellant Pro­Football, Inc. to continue/reschedule oral argument (Local Rule 34(c)). Date and method of service: 10/05/2016 ecf. [999942266] [15­1874] Lisa Blatt [Entered: 10/05/2016 12:14 PM]

10/05/2016

115

1 pg, 8.99 KB

NOTICE ISSUED to Mark R. Freeman, Joshua Marc Salzman, Molly R. Silfen and Daniel Tenny for US requesting response to Motion to continue/reschedule oral argument (Local Rule 34(c)) [114]. Response due: 10/11/2016.[999942329].. [15­1874] JSN [Entered: 10/05/2016 12:49 PM]

10/05/2016

116

1 pg, 51.81 KB

ORAL ARGUMENT ACKNOWLEDGMENT by Appellee US. Counsel arguing: Mark R Freeman [999942647] [15­1874] Mark Freeman [Entered: 10/05/2016 05:26 PM]

10/06/2016

117

ORAL ARGUMENT ACKNOWLEDGMENT by Appellees Amanda Blackhorse, Marcus Briggs­Cloud,

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10/06/2016

118

3 pg, 106.28 KB

10/18/2016

119

2 pg, 9.55 KB

10/21/2016

120

2 pg, 16.83 KB

10/21/2016

1 pg, 8.51 KB

11/15/2016

121

2 pg, 10.5 KB

03/16/2017

122

3 pg, 64.97 KB

03/16/2017

123

2 pg, 9.52 KB

06/21/2017

124

42 pg, 532.38 KB

06/21/2017

125

1 pg, 11.62 KB

06/22/2017

126

2 pg, 260.16 KB

06/28/2017

127

2 pg, 65.43 KB

06/29/2017

128

2 pg, 760.35 KB

11/13/2017

129

4 pg, 397.76 KB

11/13/2017

130

2 pg, 6.54 KB

12/22/2017

131

1 pg, 10.53 KB

01/18/2018

132

4 pg, 16.77 KB

01/18/2018

133

5 pg, 90.74 KB

03/12/2018

134

2 pg, 10.25 KB

15-1874 Docket
Phillip Gover, Jillian Pappan and Courtney Tsotigh. Counsel arguing: Jesse A. Witten [999942969] [15­ 1874] Jesse Witten [Entered: 10/06/2016 10:46 AM]
RESPONSE/ANSWER by US to notice requesting response [115], Motion to continue/reschedule oral argument (Local Rule 34(c)) [114]. [15­1874] Daniel Tenny [Entered: 10/06/2016 02:59 PM]
COURT ORDER filed [999950157] granting Motion to continue/reschedule oral argument (Local Rule 34(c)) [114] Copies to all parties.. [15­1874] JSN [Entered: 10/18/2016 03:26 PM]
CASE TENTATIVELY CALENDARED for oral argument during the 1/24/17 ­ 1/27/17 argument session. Additional copies due: 10/26/2016. Notify Clerk's Office of any scheduling conflict by: 10/31/2016. [15­ 1874] JLC [Entered: 10/21/2016 11:40 AM]
CASE REMOVED FROM TENTATIVE CALENDAR TO MATURE. [15­1874] JLC [Entered: 10/21/2016 11:57 AM]
ORDER filed [999968144] placing case in abeyance. Case 15­1874 placed in abeyance pending decision in 15­1293 from U. S. Supreme Court. Copies to all parties.. [15­1874] JSN [Entered: 11/15/2016 09:01 AM]
MOTION by Appellees Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh to withdraw/relieve/substitute counsel.Attorney or client motion? Attorney. Was a copy of the motion served on the defendant? Y.. Date and method of service: 03/16/2017 ecf. [1000043715] [15­ 1874] Jesse Witten [Entered: 03/16/2017 02:26 PM]
ORDER filed [1000043724] granting Motion to withdraw counsel [122].Copies to all parties.. [15­1874] JSN [Entered: 03/16/2017 02:29 PM]
SUPPLEMENTAL AUTHORITIES (FRAP 28(j)) by Appellant Pro­Football, Inc.. [1000104730]. [15­1874] Lisa Blatt [Entered: 06/21/2017 03:03 PM]
NOTICE ISSUED to Mr. Todd Anten for Pro­Football, Inc., Lisa Schiavo Blatt for Pro­Football, Inc., Robert Alan Garrett for Pro­Football, Inc., Mr. Robert Lloyd Raskopf, Esq. for Pro­Football, Inc., Ms. Jessica Anne Rose for Pro­Football, Inc., Mr. Sanford Ian Weisburst for Pro­Football, Inc., Mr. Dana James Boente for US, Thomas L. Casagrande for US, Tore Thomas DeBella, II for Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh, Mr. Mark R. Freeman for US, Christina J. Hieber for US, Thomas W. Krause for US, Mr. Douglas Neal Letter for US, Benjamin C. Mizer for US, Joshua Marc Salzman for US, Ms. Molly R. Silfen for US, Mr. Daniel Tenny for US and Mr. Jesse Ammon Witten for Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh requesting response to court inquiry [1000104863].. 07/03/2017 [15­1874] PSC [Entered: 06/21/2017 06:19 PM]
RESPONSE/ANSWER by Pro­Football, Inc. to notice requesting response [125]. [15­1874] Lisa Blatt [Entered: 06/22/2017 02:39 PM]
RESPONSE/ANSWER by US to notice requesting response [125]. [15­1874] Mark Freeman [Entered: 06/28/2017 05:24 PM]
RESPONSE/ANSWER by Amanda Blackhorse, Marcus Briggs­Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh to notice requesting response [125]. [15­1874] Jesse Witten [Entered: 06/29/2017 01:42 PM]
MOTION by Amici Supporting Appellant ACLU VA, ACLU and American Civil Liberties Union of the Nation's Capital to withdraw/relieve/substitute counsel.Attorney or client motion? Attorney. Was a copy of the motion served on the defendant? N. , to withdraw/relieve/substitute counsel. Date and method of service: 11/13/2017 ecf. [1000191034] [15­1874] Hope Amezquita [Entered: 11/13/2017 01:14 PM]
ORDER filed [1000191174] granting Motion to withdraw/relieve/substitute counsel [129]. Copies to all parties.. [15­1874] JSN [Entered: 11/13/2017 02:23 PM]
NOTICE ISSUED RE: Rule 34 pre­argument review. [15­1874] MH [Entered: 12/22/2017 02:57 PM]
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14­cv­01043­GBL­IDD. Copies to all parties and the district court/agency. [1000225401].. [15­1874] JSN [Entered: 01/18/2018 11:59 AM]
JUDGMENT ORDER filed. Disposition method: 15­1874 opn.u.sub. Decision: Vacated and remanded. Originating case number: 1:14­cv­01043­GBL­IDD. Entered on Docket Date: 01/18/2018. [1000225405] Copies to all parties and the district court/agency.. [15­1874] JSN [Entered: 01/18/2018 12:02 PM]
Mandate issued. Referencing: [133] Judgment Order , [132] Unpublished per curiam Opinion. Originating case number: 1:14­cv­01043­GBL­IDD.. [15­1874] MR [Entered: 03/12/2018 08:47 AM]

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 USCA4 Appeal: 15-1874 Doc: 132

Filed: 01/18/2018 Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 15-1874
PRO-FOOTBALL, INC.,
Plaintiff - Appellant,
v.
AMANDA BLACKHORSE; MARCUS BRIGGS-CLOUD; PHILLIP GOVER; JILLIAN PAPPAN; COURTNEY TSOTIGH,
Defendants - Appellees,
UNITED STATES OF AMERICA,
Intervenor - Appellee,
------------------------------
CONSTITUTIONAL LAW PROFESSORS; CATO INSTITUTE; THE RUTHERFORD INSTITUTE; DON BETTELYOUN; FORT MCDERMITT PAIUTE SHOSHONE TRIBE; BOYD GOURNEAU; NATIVE AMERICAN GUARDIANS ASSOCIATION; PETER MACDONALD; AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA; AMERICAN CIVIL LIBERTIES UNION OF THE NATION’S CAPITAL; FIRST AMENDMENT LAWYERS ASSOCIATION; RUSS VERSTEEG,
Amici Supporting Appellant,
NATIVE AMERICAN ORGANIZATIONS; THE NAVAJO NATION; FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY; NATIONAL NATIVE AMERICAN BAR ASSOCIATION; NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION; NATIVE HAWAIIAN BAR ASSOCIATION; CALIFORNIA INDIAN LAW ASSOCIATION,
Amici Supporting Appellee.

USCA4 Appeal: 15-1874 Doc: 132

Filed: 01/18/2018 Pg: 2 of 4

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:14-cv-01043-GBL-IDD)

Submitted: December 22, 2017

Decided: January 18, 2018

Before KING, FLOYD, and HARRIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Robert L. Raskopf, Todd Anten, Jessica A. Rose, QUINN EMANUEL URQUHART & SULLIVAN, LLP, New York, New York; Lisa S. Blatt, Robert Alan Garrett, ARNOLD & PORTER, LLP, Washington, D.C., for Appellant. Jesse A. Witten, Jeffrey J. Lopez, Tore T. DeBella, Patrick H. Thompson, DRINKER BIDDLE & REATH, LLP, Washington, D.C.; Thomas W. Krause, Acting Solicitor, Christina J. Hieber, Thomas L. Casagrande, Associate Solicitors, OFFICE OF THE SOLICITOR, UNITED STATES PATENT AND TRADEMARK OFFICE, Alexandria, Virginia; Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Dana J. Boente, United States Attorney, Douglas N. Letter, Mark R. Freeman, Daniel Tenny, Joshua M. Salzman, Molly R. Silfen, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Rodney A. Smolla, Wilmington, Delaware; Floyd Abrams, CAHILL GORDON & REINDEL LLP, New York, New York, for Amici Constitutional Law Professors. Ilya Shapiro, CATO INSTITUTE, Washington, D.C.; John W. Whitehead, Douglas R. McKusick, THE RUTHERFORD INSTITUTE, Charlottesville, Virginia; Megan L. Brown, Joshua S. Turner, Christopher J. Kelly, Jennifer L. Elgin, Dwayne D. Sam, WILEY REIN LLP, Washington, D.C., for Amici Cato Institute and The Rutherford Institute. Thomas C. Goldstein, Bethesda, Maryland, Kimberly N. Brown, GOLDSTEIN & RUSSELL, P.C., Chevy Chase, Maryland, for Amici Don Bettelyoun, Fort McDermitt Paiute Shoshone Tribe, Boyd Gorneau, Native American Guardians Association, and Peter MacDonald. Lee Rowland, Esha Bhandari, AMERICAN CIVIL LIBERTIES UNION, New York, New York; Hope R. Amezquita, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, INC., Richmond, Virginia; Arthur B. Spitzer, AMERICAN CIVIL LIBERTIES UNION OF THE NATION’S CAPITAL, Washington, D.C., for Amici American Civil Liberties Union, American Civil Liberties Union of Virginia, and American Civil Liberties Union of the Nation’s Capital. Marc J. Randazza, RANDAZZA LEGAL GROUP, PLLC, Las Vegas, Nevada, for Amicus First Amendment Lawyers Association. Russ Versteeg, NEW ENGLAND LAW | BOSTON, Boston, Massachusetts, for Amicus Russ Versteeg. Robert S. Chang, FRED T.
2

USCA4 Appeal: 15-1874 Doc: 132

Filed: 01/18/2018 Pg: 3 of 4

KOREMATSU CENTER OF LAW AND EQUALITY, Seattle, Washington; William C. Rava, Elvira Castillo, David A. Perez, Cara Wallace, Dane A. Westermeyer, PERKINS COIE LLP, Seattle, Washington, for Amici Fred T. Korematsu Center for Law and Equality, National Native American Bar Association, National Asian Pacific American Bar Association, Native Hawaiian Bar Association, and California Indian Law Association. Larry S. Gondelman, Brandi A. Taylor, POWERS PYLES SUTTER & VERVILLE PC, Washington, D.C.; Richard A. Guest, NATIVE AMERICAN RIGHTS FUND, Washington, D.C., for Amici National American Organizations. Ethel Branch, Attorney General, Paul Spruhan, Assistant Attorney General, Katherine Belzowski, NAVAJO NATION DEPARTMENT OF JUSTICE, Window Rock, Arizona; Mark A. Griffin, Karin B. Swope, KELLER ROHRBACK L.L.P., Seattle, Washington, for Amicus The Navajo Nation.
Unpublished opinions are not binding precedent in this circuit.

3

USCA4 Appeal: 15-1874 Doc: 132

Filed: 01/18/2018 Pg: 4 of 4

PER CURIAM: Pro-Football, Inc. (“PFI”), the owner of the professional football team the
Washington Redskins, holds six trademarks for the team’s name and logos which are federally registered. The Defendants-Appellees, Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan, and Courtney Tsotigh, a group of Native Americans, filed a petition seeking the cancellation of the registrations of those trademarks, asserting that the trademarks consist of “matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. § 1052(a) (2012). The Trademark Trial and Appeal Board ordered cancellation of the registrations based on § 1052(a). On PFI’s appeal, the district court affirmed that order, and PFI now appeals.
While this appeal was pending, the Supreme Court in Matal v. Tam, 137 S. Ct. 1744, 1751 (2017), determined that § 1052(a) violates the free speech clause of the First Amendment. In light of this determination, we vacate the district court’s order and remand for further proceedings consistent with Tam. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid in the decisional process.
VACATED AND REMANDED

4

 
 THIS OPINION IS A PRECEDENT OF THE TTAB

Hearing: March 7, 2013

Mailed: June 18, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE _____

Trademark Trial and Appeal Board _____

Amanda Blackhorse, Marcus Briggs-Cloud, Philip Gover, Jillian Pappan, and Courtney Tsotigh

v.

Pro-Football, Inc.

_____

Cancellation No. 92046185 _____

Jesse A. Witten, Jeffrey J. Lopez, John D. V. Ferman, Lee Roach and Stephen Wallace of Drinker, Biddle & Reath LLP for Amanda Blackhorse, Marcus Briggs, Philip Gover, Jillian Pappan, and Courtney Tsotigh.

Robert L. Raskopf, Claudia T. Bogdanos and Todd Anten of Quinn Emanuel Urquhart & Sullivan, LLP for Pro-Football, Inc.
_____

Before Kuhlke, Cataldo and Bergsman, Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

OVERVIEW Petitioners, five Native Americans, have brought this cancellation proceeding pursuant to Section 14 of the Trademark Act of 1946, 15 U.S.C. § 1064(c). They seek to cancel respondent’s registrations issued between 1967 and 1990 for

Cancellation No. 92046185
trademarks consisting in whole or in part of the term REDSKINS for professional football-related services on the ground that the registrations were obtained contrary to Section 2(a), 15 U.S.C. § 1052(a), which prohibits registration of marks that may disparage persons or bring them into contempt or disrepute. In its answer, defendant, Pro-Football, Inc., asserted various affirmative defenses including laches.1
As explained below, we decide, based on the evidence properly before us, that these registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered, in violation of Section 2(a) of the Trademark Act of 1946, 15 U.S.C. § 1052(a). This decision concerns only the statutory right to registration under Section 2(a). We lack statutory authority to issue rulings concerning the right to use trademarks. See, e.g., In re Franklin Press, Inc., 597 F.2d 270, 201 USPQ 662, 664 (CCPA 1979).
The Registrations at Issue The following six registrations (hereinafter referred to collectively as the REDSKINS marks) are the subject of this cancellation proceeding: 1. Registration No. 0836122 for the mark THE REDSKINS (stylized), shown below, for “entertainment services – namely, football exhibitions rendered in stadia and through the media of radio and television broadcasts,” in Class 41;2
1 The Board struck the other affirmative defenses, which primarily concern Constitutional challenges and they are preserved for appeal. 2 Registered September 26, 1967; second renewal.
2

Cancellation No. 92046185
2. Registration No. 0978824 for the mark WASHINGTON REDSKINS, in typed drawing form, for “entertainment services – namely, presentations of professional football contests,” in Class 41;3
3. Registration No. 0986668 for the mark WASHINGTON REDSKINS and design, shown below, for “entertainment services – namely, presentations of professional football contests,” in Class 41;4
4. Registration No. 0987127 for the mark THE REDSKINS and design, shown below, for “entertainment services – namely, presentations of professional football contests,”5 in Class 41;
3 Registered February 12, 1974; third renewal. 4 Registered June 18, 1974; second renewal. 5 Registered June 25, 1974; second renewal.
3

Cancellation No. 92046185
5. Registration No. 1085092 for the mark REDSKINS, in typed drawing
form, for “entertainment services – namely, presentations of professional football
contests,” in Class 41;6 and
6. Registration No. 1606810 for the mark REDSKINETTES, in typed
drawing form, for “entertainment services, namely, cheerleaders who perform dance
routines at professional football games and exhibitions and other personal
appearances,” in Class 41.7
Prior Litigation
This is the second time the Board has faced a petition to cancel these
registrations. On September 10, 1992, Suzan Harjo and six other Native Americans
filed a petition to cancel the above-noted registrations on the ground the marks
consist of or comprise matter which disparages Native American persons, and
6 Registered February 7, 1978; second renewal. 7 Registered July 17, 1990; renewed in 2000. Section 8 affidavits of continuing use and applications for renewal under Section 9 must be filed at the end of each successive 10-year period following the date of registration. 15 U.S.C. § 1059. See also Trademark Manual of Examining Procedure (TMEP) § 1606.03 (“The Director has no authority to waive the deadline for filing a proper § 9 renewal application.”). We note the last Section 8 affidavit and Section 9 application for renewal was filed in 2000 and accepted by the USPTO on March 9, 2004. The filing deadline for the next renewal would have been July 17, 2010 but USPTO records do not show any such filing. Thus, it appears regardless of the outcome of this proceeding, this registration has expired. Nonetheless, when a registration which is the subject of a cancellation proceeding is abandoned or left to expire during the proceeding, such action is treated as an abandonment of the registration without the consent of the petitioner. 37 C.F.R. § 2.134(b). See also Trademark Trial and Appeal Board Manual of Procedure (TBMP) § 602.02(b) (3d ed. rev. June 2013). Typically, the Board would issue a show cause order to the respondent to indicate whether the expiration of the registration was purposeful or inadvertent. If such action was purposeful, judgment is entered against the respondent as to that registration. If the expiration was inadvertent, the petitioner would be allowed time to pursue its claim to final judgment. Neither party alerted the Board to this issue. Because the proceeding was tried and briefed on all the registrations including this one, we proceed to final judgment on this registration.
4

Cancellation No. 92046185
brings them into contempt, ridicule, and disrepute; and the marks consist of or comprise scandalous matter under Section 2(a) of the Trademark Act. Respondent denied the salient allegations in the petition for cancellation and asserted eleven affirmative defenses, including laches. The Board struck all of respondent’s affirmative defenses. Harjo v. Pro Football, Inc., 30 USPQ2d 1828, 1833 (TTAB 1994); and 50 USPQ2d 1705, 1710 (TTAB 1999). After seven years of litigation, involving multiple discovery and pretrial motions, the Board issued its decision on the merits, held that respondent’s REDSKINS marks were disparaging to Native Americans when registered and ordered the registrations canceled. Harjo v. ProFootball, Inc., 50 USPQ2d at 1743.
Respondent appealed the decision to the United States District Court for the District of Columbia. On motion for summary judgment, the District Court reversed the Board for two reasons:
The TTAB’s finding of disparagement is not supported by substantial evidence and must be reversed. The decision should also be reversed because the doctrine of laches precludes consideration of the case. Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96, 68 USPQ2d 1225, 1263 (D.D.C. 2003). The petitioners appealed the rulings that the claim of disparagement was not supported by substantial evidence and that the defense of laches may be asserted against a disparagement claim. The United States Court of Appeals for the District of Columbia Circuit held that the District Court applied the wrong standard in evaluating laches as to at least one of the petitioners because “laches runs only from
5

Cancellation No. 92046185
the time a party has reached his majority” and, while retaining jurisdiction over the case, remanded the record to the District Court to evaluate whether laches barred petitioner Mateo Romero’s claim. Pro-Football, Inc. v. Harjo, 415 F.3d 44, 75 USPQ2d 1525, 1528 (D.C. Cir. 2005). The D.C. Circuit did not address the issue of whether substantial evidence supported the Board’s finding of disparagement. On remand, the District Court found that laches did bar the claim:
[D]efendant Romero unreasonably delayed his bringing of a cancellation proceeding and … his eight-year delay demonstrates a lack of diligence on his part. The court further finds that Defendant Romero’s delay has resulted in both trial prejudice and economic prejudice to Pro-Football, such that it would be inequitable to allow Defendant Romero to proceed with his cancellation petition. Pro-Football, Inc. v. Harjo, 567 F. Supp.2d 46, 87 USPQ2d 1891, 1903 (D.D.C. 2008). Petitioners appealed. The D.C. Circuit affirmed the decision of the lower court on the issue of laches and stated that the petitioners “argue only that the District Court improperly assessed evidence of prejudice in applying laches to the facts at issue” and limited its decision “to that question.” Pro-Football, Inc. v. Harjo, 565 F.3d 880, 90 USPQ2d 1593 (D.C. Cir. 2009). Thus, the D.C. Circuit resolved the case solely on the issue of laches, never addressing the Board’s finding of disparagement on the merits.
6

Cancellation No. 92046185
The Current Litigation
While Harjo was pending, six new individual petitioners filed a petition to
cancel the same registrations for the REDSKINS marks.8 Proceedings were
suspended pending the disposition of the Harjo civil action and resumed in March
2010.9
In March 2011, the parties stipulated, with certain exceptions, that the entire
Harjo record may be submitted into evidence through a Notice of Reliance.10 The
stipulation provides in pertinent part that:
1. Except as provided below, all evidence submitted with a Notice of Reliance, as well as all deposition transcripts and exhibits thereto submitted by any party, in Harjo … shall be admissible in this proceeding unless the Trademark Trial and Appeal Board ruled in Harjo that the evidence was not admissible, in which case all arguments as to admissibility are preserved.
2. The Parties do not stipulate that any particular piece of evidence described in paragraph 1 is relevant to any issue in this proceeding, and therefore may object to evidence described in paragraph 1 on grounds that it is not relevant.11
8 During this proceeding, petitioner Shquanebin Lone-Bentley withdrew her petition for cancellation. TTABVue 24. The citations to “TTABVue” throughout the decision are to the Board’s public online database that contains the proceeding file, available on the USPTO website, www.USPTO.gov. The number represents the prosecution history number listed in the electronic case file. 9 Board’s notice of suspension (TTABVue 6); notice of proceedings resumed (TTABVue 23). 10 Joint Stipulation Regarding Admissibility of Certain Evidence & Regarding Certain Discovery Issues, dated March 11, 2011, and filed March 14, 2011 (TTABVue No. 31). In Board proceedings there is no live testimony. Testimony is taken by deposition and the resulting transcripts are filed with the Board. Other appropriate evidence is submitted under a Notice of Reliance. Information regarding Board procedure may be found in the Trademark Rules 37 C.F.R. §§ 2.101-2.136 and the TBMP both available on the USPTO website www.uspto.gov. 11 Id.
7

Cancellation No. 92046185
As stipulated, the parties only reserved the right to make objections based on relevance to evidence earlier admitted into the Harjo record and admitted into this case under paragraph 1. All other possible objections, including those based on hearsay, were waived. This was confirmed from both parties at the oral hearing.
In view of the intense pretrial litigation engaged in by the parties in Harjo and because the record created in that case was voluminous, the Board ordered the parties to appear at a pretrial conference.12
In order to litigate this proceeding as efficiently as possible, a pretrial conference will help the Board and the parties focus the evidence and arguments at trial.13 After briefing by the parties, the Board issued another order setting forth the applicable law relating to the issues of disparagement and laches involved herein.14 In regard to the former issue, the Board noted that the test for disparagement comprises a two-step inquiry: a. What is the meaning of the matter in question, as it
appears in the marks and as those marks are used in connection with the goods and services identified in the registrations? b. Is the meaning of the marks one that may disparage Native Americans? Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1248; Harjo v. Pro-Football, Inc., 50 USPQ2d at 1740-41. See also, In re Geller, __ F.3d ___, 110 USPQ2d 1867, 1869 (Fed. Cir. 2014). Both questions are to be answered as of the various dates of
12 Board’s March 15, 2011 Order (TTABVue 32). 13 Id. at 2 (TTABVue 32, p. 2). 14 Board’s May 31, 2011 Order (TTABVue 40).
8

Cancellation No. 92046185
registration of the involved marks. Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1248;
Harjo v. Pro-Football, Inc., 50 USPQ2d at 1735, 1741. In deciding the second
question, whether the term “redskins” may disparage Native Americans, we look
not to the American public as a whole, but to the views of the referenced group (i.e.,
Native Americans). Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1247; Harjo v. Pro-
Football, Inc., 50 USPQ2d at 1739.15
The views of the referenced group are “reasonably determined by the views of
a substantial composite thereof.” Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1247
(quoting Harjo v. Pro-Football, Inc., 50 USPQ2d at 1739). A “substantial composite”
of the referenced group is not necessarily a majority of the referenced group. In re
Heeb Media LLC, 89 USPQ2d 1071, 1074 (TTAB 2008); In re Squaw Valley Dev. Co.,
80 USPQ2d 1264, 1279 n.12; cf. Ritchie v. Simpson, 179 F.3d 1091, 50 USPQ2d
1023, 1024 (Fed. Cir. 1999) (“Whether a mark comprises immoral and scandalous
matter is to be ascertained in the context of contemporary attitudes, and the
relevant viewpoint is not necessarily that of a majority of the general public, but of
a ‘substantial composite.’”) (quoting In re Mavety Media Group Ltd., 33 F.3d 1367,
31 USPQ2d 1923, 1925-26 (Fed. Cir. 1994)). What comprises a “substantial
composite” of the referenced group is a fact to be determined at trial. In making
this determination, “we are charged with taking into account the views of the entire
15 See id. at 8-11 (TTABVue 40, pp. 8-11). In our earlier order outlining the applicable law, the statement that the perceptions of the general public are irrelevant refers to the ultimate legal determination. It does not foreclose evidence of general perception. If, for example, numerous dictionary definitions unanimously included a usage characterization indicating a term is offensive, contemptuous, etc. that could be evidence of the general perception of a term and could serve to support a finding that the referenced group finds the term to be disparaging.
9

Cancellation No. 92046185
referenced group who may encounter [respondent’s services] in any ordinary course
of trade for the identified goods and services.” Heeb Media, 89 USPQ2d at 1075.16
Finally, any cancellation of a registration should be granted only with “due caution”
and “after a most careful study of all the facts.” Rockwood Chocolate Co. v. Hoffman
Candy Co., 372 F.2d 552, 152 USPQ 599, 601 (CCPA 1967) (internal citations
omitted).
THE RECORD The record includes the pleadings, the files of respondent’s registrations by
operation of Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), deposition testimony of
each of the petitioners and the associated deposition exhibits, and nearly the entire
Harjo record (except for the deposition testimony of the Harjo petitioners), by
stipulation. The submissions from the Harjo record are listed in full in Appendix A
(for petitioners) and Appendix B (for respondents).17
As noted above, the parties only preserved the right to make objections in
this case based on relevance to any evidence earlier admitted into the Harjo record.
Respondent asserted 26 pages of relevancy objections. We have considered those
objections in weighing the evidence and specifically address them where we have
relied on evidence for our findings of fact. We do not rely on the Ross Survey and
16 See id. at 8-9 (TTABVue 40, pp. 8-9). 17 The record includes copies of newspaper articles, publications, resolutions, letters, and other printed materials originally submitted and considered in the Harjo proceeding which are dated, published or otherwise were disseminated prior to 1993. In Harjo, all of these materials were submitted under Notices of Reliance by both parties. Despite the fact that some of these materials (e.g., letters) are not properly introduced under Notice of Reliance, because no party to that proceeding objected to the means of submission, the Board considered the material as admitted into the record. Harjo v. Pro-Football, Inc., 50 USPQ2d at 1723.
10

Cancellation No. 92046185
therefore we do not address respondent’s various arguments with regard to that piece of evidence.18
Petitioners’ objections to respondent’s evidence are overruled. As noted above, on March 14, 2011, the parties filed a stipulation regarding the admissibility of evidence in this case. In Harjo, the Board admitted the particular evidence to which petitioners now object because neither party then objected to it coming in under a Notice of Reliance. Harjo v. Pro-Football, Inc., 50 USPQ2d at 1721-23. The Board specifically stated as to these documents and other documents upon which respondent relies that it “has considered all such material of both parties as part of the record in this case.” Harjo v. Pro-Football, Inc., 50 USPQ2d at 1723. While the Board in Harjo discussed the hearsay nature of the evidence or lack of foundation, it was admitted into the record; and the parties’ stipulation in this case waives all objections, other than relevancy, as to this evidence. Thus, petitioners are estopped from objecting to the evidence on any basis except relevance because the evidence had been admitted in Harjo and, therefore, falls within paragraph No. 1 of the stipulation noted above.
In their reply brief, petitioners assert that “[i]n addition to the waiver of the hearsay objections, the news articles would fit within hearsay exceptions, including the ancient records exception, so their content may be considered for the truth of
18 We do note generally that the survey would have very limited probative value. As the Board noted in Harjo, 50 USPQ2d at 1734, the Ross survey is “a survey of current attitudes towards the word ‘redskin(s)’ as a reference to Native Americans.” Therefore, the survey does not directly measure the perceptions of Native Americans during the relevant time frame.
11

Cancellation No. 92046185
the matters asserted.”19 While the ancient documents exception could provide
further support for reliance on various documents from both parties (newspaper
articles, letters, etc.), the contents of which would otherwise constitute hearsay, in
view of the waiver of hearsay objections it is not necessary to apply this exception.20
Finally, regarding the parties’ waiver of hearsay objections, courts have
routinely accepted and enforced such waivers, and relied on the evidence for the
truth of the matter asserted. “The presumption of waivability has found specific
application in the context of evidentiary rules. Absent some ‘overriding procedural
consideration that prevents enforcement of the contract,’ courts have held that
agreements to waive evidentiary rules are generally enforceable even over a party’s
subsequent objections.” U.S. v. Mezzanatto, 513 U.S. 196, 202 (1995), citing 21 C.
19 Pet’rs’ Reply Br. 9-10 (citing Fed. R. Evid. 803(16)) (TTABVue No. 184). 20 Under Rule of Evidence 803(16), “[s]tatements in a document in existence twenty years or more the authenticity of which is established” are not considered hearsay, and therefore, are not excluded by the hearsay rule. Id. Further, “[t]he ancient document exception contained in Rule 803(16) . . . clearly applies to any document including letters, records, contracts, maps, newspapers and certificates.” 4 Michael H. Graham, Handbook of Federal Evidence § 803:16, at 405-06 (6th ed. 2006); see, e.g., Martha Graham Sch. & Dance Found. Inc. v. Martha Graham Ctr. of Contemporary Dance Inc., 380 F.3d 624, 72 USPQ2d 1143, 1156 (2d Cir. 2004) (affirming lower court reliance on two letters for the truth of the statements therein as admissible under Rule 803(16), the ancient-documents exception to the hearsay rule, to determine copyright ownership of dances). See also Bell v. Combined Registry Co., 397 F. Supp. 1241, 188 USPQ 707 (N.D. Ill. 1975), aff’d, 536 F.2d 164 (7th Cir. 1976) (allowing letters and newspaper articles from the 1930s and 1940s to determine a copyright suit); Murray v. Sevier, 50 F.Supp.2d 1257, 1264 n.6 (M.D.Ala. 1999) (interviewee's statements reported in a newspaper article admissible under Rule 803(16)), vacated on other grounds, Murray v. Scott, 253 F.3d 1308 (11th Cir. 2001). “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). Rule of Evidence 901(b)(8) states that an ancient document may be authenticated by evidence that the document “(A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.” Fed. R. Evid. 901(b)(8). Rule of Evidence 902 provides that newspapers and periodicals are self-authenticating. Fed. R. Evid. 902(6).
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Wright & K. Graham, FEDERAL PRACTICE AND PROCEDURE (FPP) § 5039, pp. 207-08
(1977). “Courts have ‘liberally enforced’ agreements to waive various exclusionary
rules of evidence. Id. (quoting Note, Contracts to Alter the Rules of Evidence, 46
HARV. L. REV. 138, 139-140 (1933)). “[A]lthough hearsay is inadmissible except
under certain specific exceptions, we have held that agreements to waive hearsay
objections are enforceable.” Id. citing U.S. v. Bonnett, 877 F.2d 1450 (10th Cir.
1989) (hearsay objection waived by stipulation); see FPP § 5039.4 Estoppel and
Waiver – Withdrawal of Objections and § 5039.5 Estoppel and Waiver –
Stipulations and Contractual Waiver. See also U.S. v. Alazzam, slip op. No.
1:08cr101 (JCC) (E.D.Va. September 29, 2009), 2009 WL 3245392 (use of waiver
extended to a prosecution’s case in chief).21
STANDING
A plaintiff must show that it has a “real interest” in the outcome of a
proceeding in order to have standing. Ritchie v. Simpson, 50 USPQ2d at 1025. A
“real interest” in the proceeding is a legitimate personal interest in the opposition or
cancellation. Id., citing Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024,
213 USPQ 185, 189 (CCPA 1982).
21 While the content of newspaper articles is hearsay and in some cases, for example, where an individual is quoted, presents a double hearsay problem, the waiver is applicable to all levels of hearsay objections. In view thereof, we have considered the statements in the newspaper articles. See Hope for Families & Community Service, Inc. v. Warren, 721 F.Supp.2d 1079, 1178 n. 114 (M.D.Ala. 2010) (consideration of content of newspaper article). Finally, respondent itself relies on the statements made in various documents, including letters and newspapers. See Cooper Hospital/University Medical Center v. Sullivan, 183 F.R.D. 119 (D.N.J. 1998) (consideration of the content of newspaper articles proper; where party itself relied upon the content of newspaper articles it waives the objection).
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Amanda Blackhorse is a member of the Navajo Nation.22 She testified that she considers the term REDSKINS in respondent’s marks to be derogatory and is offended by it.23
Phillip Martin Gover is a member of the Paiute Indian Tribe of Utah.24 He testified that he perceives the terms REDSKIN and REDSKINS to be disparaging, even in connection with respondent’s services.25
Courtney Tsotigh is a member of the Kiowa Tribe of Oklahoma.26 She testified that she finds the term REDSKIN to be disparaging in any context including for an “NFL team.”27
Marcus Briggs-Cloud is a member of the Muscogee Nation of Florida.28 He testified that he finds the term REDSKINS in the registrations to be disparaging and offensive.29
Jillian Pappan testified that she is a Native American.30 She testified, inter alia, that the use of the term REDSKIN is analogous to the term “nigger,” and that people should not profit by dehumanizing Native Americans.31
22 Amanda Leeh Blackhorse Dep. 127:8-9, 196:13-197:3, June 22, 2011 (TTABVue 122, pp. 135, 204-05). 23 Blackhorse Dep. 58:15, 120:11-121:4 (TTABVue 122, pp. 66, 128-29). 24 Phillip Martin Gover Dep. 10:9-13, June 16, 2011 (TTABVue 120, p. 16). 25 Gover Dep. 91:6-92:10, 94:15, 187:1-13 (TTABVue 120, pp. 97-98, 100, 193). 26 Courtney Tsotigh Dep. 8:2-17, 146:12-21, Oct. 25, 2011 (TTABVue 115, pp. 14, 152). 27 Tsotigh Dep. 113:12-15, 115:5-117:24, 146:22-147:7 (TTABVue 115, pp. 119, 121-23, 15253). 28 Marcus Anthony Briggs-Cloud Dep. 135:11-20 (TTABVue 110, p. 141). See also 69:1670:22, 136:8-139:7, June 23, 2011 (TTABVue 110, pp. 75-76, 109-11, 115, 120, 142-43). 29 Briggs-Cloud Dep. 63:16-29, 75:1-13, 103:3-105:11 (TTABVue 110, pp. 69, 81, 109-10).
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In view of the foregoing, we find that each of the petitioners has established a
real interest, a personal stake, in the outcome of this proceeding and, therefore, has
standing. Respondent does not dispute the petitioners’ standing.
DISPARAGEMENT CLAIM
While this is the second petition asserting a claim of disparagement against
the same six registrations and the parties stipulated to the same record, this
proceeding presents significant differences from the first. The Harjo case asserted
other claims not present here, e.g., that the Native American imagery as well as the
word REDSKINS was scandalous to the general public and that the Board should,
in making its decision, apply the Indian Trust Doctrine.32
The determination of the disparagement claim at issue herein requires the
following two-step analysis:
a. What is the meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the goods and services identified in the registrations?
b. Is the meaning of the marks one that may disparage Native Americans?33
30 Jillian Pappan Dep., pp. 49:4-5, 174:16-19, Aug. 11, 2011 (TTABVue 112, pp. 53, 61, 178). 31 Pappan Dep., pp. 48:24-50:6, 57:15-24, 173:9-174:4 (TTABVue 112, pp. 52-54, 61, 178). 32 As a result, the litigation generated an expansive record encompassing broader issues. Like the dissent we acknowledge the criticisms of the District Court; however, in our review of the record we believe that the weight and relevance of certain evidence became obfuscated by the several issues raised in the Harjo case. Moreover, the hearsay objection has been waived in this proceeding, which has resulted in a qualitatively different evidentiary record for us to consider. 33 Section 2(a) prohibits registration of a mark “which may disparage … persons … or bring them into contempt, or disrepute.” As held in the prior order of May 31, 2011, “for purposes of this proceeding the guidelines for determining whether the mark is disparaging are
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As confirmed by the parties at the oral hearing, it is already established that (1) this disparagement claim only pertains to the term REDSKINS34 and (2) as to “the meaning of the matter in question” “as used in connection with respondent’s services, REDSKINS clearly both refers to respondent’s professional football team and carries the allusion to Native Americans inherent in the original definition of that word.”35 Harjo v. Pro-Football, Inc., 50 USPQ2d at 1742, rev’d on other grounds, Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1249.
Moreover, as to the second point, the evidence overwhelmingly supports a determination that the term REDSKINS as it appears in the marks retains the meaning Native American. Two of the registrations include Native American imagery. Registration No. 0986668 (top) and Registration No. 0987127 (bottom) are shown below.
equally applicable to determining whether such matter brings persons or institutions into contempt or disrepute.” TTABVue 40, p. 4. We, therefore, use the word disparage in this case as an umbrella term for “may disparage … or bring them into contempt or disrepute.” 34 As to the Native American imagery in two of the registrations, in the Harjo case the Board found that “petitioners have not established, under Section 2(a), that this matter may disparage Native Americans.” Harjo v. Pro-Football, Inc., 50 USPQ2d at 1743. 35 Respondent’s position that the term REDSKINS has a separate meaning as the name of a football team does not affect the first prong of the test because even as the name of the football team it retains the meaning Native American. See infra discussion of Squaw Valley, 80 USPQ2d 1264.
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The image of a Native American has appeared prominently as a logo on the helmets of respondent’s Washington Redskins’ team uniforms, as demonstrated by the images below of its former players John Riggins in Super Bowl XVII in 1983 (left) and Doug Williams in Super Bowl XXII in 1988 (right).

36

37

The Washington Redskins marching band had worn Native American headdresses as part of its uniforms between the 1960s and the 1990s, as shown in

the image below from the 1980s.

36 SUPER BOWL XVII: HOG DAY AFTERNOON (NFL Films 1983), Petitioners’ Notice of Reliance, Ex. 103 (TTABVue 95, p. 70). 37 AMBUSH AT SUPER BOWL XXII (NFL Films 1988), Petitioners’ Notice of Reliance, Ex. 104 (TTABVue 95, p. 72).
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38
The Redskinettes also had appeared wearing costumes suggestive of Native Americans, as shown in the 1962 photograph of them reproduced below, which contained the title “Dancing Indians” and the caption “Here are the Redskinettes all decked out in their Indian garb and carrying Burgundy and Gold pom-poms.”
39
Between 1967 and 1979, the annual Washington Redskin press guides, shown below, displayed American Indian imagery on the cover page.
38 HAIL TO THE REDSKINS 1937-1988 (NFL Films 1988), Petitioners’ Notice of Reliance, Ex. 95 (TTABVue 95, p. 54). 39 “Dancing Indians,” Redskins (magazine), Oct. 7, 1962, at 15, Petitioners’ Notice of Reliance, Ex. 29 (TTABVue 52, p. 17).
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40

41

Respondent has made continuous efforts to associate its football services with

Native American imagery.

As confirmed by the District Court:
Meaning of the Matter In Question … “This is not a case where, through usage, the word ‘redskin(s)’ has lost its meaning, in the field of professional football, as a reference to Native Americans in favor of an entirely independent meaning as the name of a professional football team. Rather, when considered in relation to the other matter comprising at least two of the subject marks and as used in connection with respondent’s services, ‘Redskins’ clearly both refers to respondent’s professional football team and carries the allusion to Native Americans inherent in the original definition of that word.” Id. Based on the record before the TTAB, the Court finds that this conclusion is supported by substantial evidence. Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1248-1249 quoting Harjo v. Pro-Football, Inc., 50 USPQ2d at 1742.

40 1967 Redskins Press Guide, Petitioners’ Notice of Reliance, Ex. 29 (TTABVue 54, p. 28). 41 1979 Redskins Press Guide, Petitioners’ Notice of Reliance, Ex. 29 (TTABVue 74, p. 21).
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The term REDSKINS in the registered marks when used in connection with
professional football retains the meaning Native Americans. Thus, the first prong
of the test, “what is the meaning of the matter” is established.
The only issue left for decision is the second question in the disparagement
test (was the meaning of the marks, at the times of the registrations, one that may
have disparaged Native Americans?) as it pertains to the term REDSKINS.42
Having narrowed the issue to be determined, it is now necessary to
understand what type of disparagement case the facts of this limited case present.
We must make our determination in the context of a respondent’s goods or services.
Such context can:
(1) turn an innocuous term into a disparaging one, see In re Lebanese Arak
Corp., 94 USPQ2d 1215, 1223 (TTAB 2010) (likely meaning of KHORAN is
the Islamic holy text and use for wine disparages religion and beliefs of
Muslim Americans); see also Doughboy Industries, Inc. v. The Reese Chemical
Co., 88 USPQ 227 (Exm’r in Chief 1951) (Doughboy refers to World War I
42 In the Harjo case, on appeal, the District Court noted its concern about the breadth of the issues presented noting: “Under the broad sweep of the TTAB's logic, no professional sports team that uses Native American imagery would be permitted to keep their trademarks if the team's fans or the media took any action or made any remark that could be construed as insulting to Native Americans. The Court cannot accept such an expansive doctrine; particularly when premised on a finding that is not supported by any substantial evidence. ... This is undoubtedly a ‘test case’ that seeks to use federal trademark litigation to obtain social goals.” Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1254, 1262. In contrast, this case presents a much narrower issue and pertains only to the word REDSKINS. With regard to the District Court’s observation about “social goals,” the underlying purpose of this portion of the Trademark Act is, in effect, a social goal as legislated by Congress, to keep matter that would disparage others off of the register. The statutory requirement to remove disparaging matter from the register is not obfuscated in the present case by peripheral issues.
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American soldier as reinforced by picture of soldier on packaging and use on
“a prophylactic preparation for the prevention of venereal diseases”
disparages the soldiers); or
(2) strip the disparaging meaning from an otherwise disparaging term, see
Squaw Valley, 80 USPQ2d 1264, 1267 (SQUAW when used with ski-related
goods means only the geographic location Squaw Valley ski resort and does
not retain the meaning Native American woman under the first part of the
test, and, as such is not disparaging; but as to non-ski-related goods and
services the meaning remains Native American woman, i.e., the goods and
services did not change the meaning, and the evidence was sufficient to
support the second prong of the test that the term is considered disparaging
as the term is used in connection with the identified goods or services); or
(3) have no effect on a term’s disparaging meaning, see Heeb Media, 89
USPQ2d 1071, 1077 (applicant’s good intent and inoffensive goods and
services do not obviate finding that HEEB is disparaging in context of the
goods and services; and disagreement within the referenced group does not
erase the perception of those who find it disparaging).43
43 There is no case in our review where a term found to be a racial slur in general was found not to be disparaging when used in the context of specific services. The District Court in Harjo noted that “[t]he ultimate legal inquiry is whether the six trademarks at issue may disparage Native Americans when used in connection with Pro-Football’s services and during the relevant time frame . . . [t]he ultimate legal inquiry is not whether the term ‘redskins’ is a pejorative term for Native Americans.” Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1252. This does not mean that if the record shows that the term is pejorative, or a racial slur, that such a showing could not add to the evidence supporting a finding that a substantial composite of the referenced group find it disparaging, even when used solely with the recited services. Moreover, if a term is found to be a racial slur, then it may be
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possible to find the term disparaging in the context of the specific services without evidence as to the specific services. In Squaw Valley, in making a determination regarding the second prong of the disparagement test, the Board relied on evidence that showed the “opinions of Native Americans regarding the term are not limited to particular contexts.” Squaw Valley, 80 USPQ2d at 1276.
Thus, if it is shown that a term is generally disparaging, e.g., a racial slur, in any context, that includes the specific context of the subject goods or services, and to that extent the comment by the District Court as to the ultimate legal determination does not limit the avenues by which a deciding court or tribunal arrives there. See Heeb, 89 USPQ2d at 1077 (“[A] term is considered to be disparaging by a substantial composite of the referenced group, regardless of context, including in connection with applicant’s identified goods and services.”)
As noted by the Board in Squaw Valley, in the context of an ex parte proceeding we are by necessity limited to inferential evidence. In the context of an inter partes proceeding, the parties are not so limited and may present direct evidence, but that does not render indirect evidence non probative. In particular, with a claim of disparagement of a referenced group brought by individuals, the individual plaintiffs may testify as to their perceptions regarding a term and the context of the specific services, but to prove it is disparaging to a substantial composite of the group, more general evidence can be probative. The hypothetical evidentiary dilemma posed by the Board in Squaw Valley, the difficulty of finding statements about use in connection with paperclips, is also applicable to the inter partes context. Squaw Valley, 80 USPQ2d at 1277 n. 9. Thus, just as in an ex parte context where a term may be found to be generally disparaging in any context and prohibited from registration for a specific context, even absent evidence of the referenced group making a statement as to that specific context, such an evidentiary record may also be sufficient in an inter partes case.
Respondent’s expert, Dr. Ronald Butters (discussed infra), sheds some light on this issue. On the one hand he testifies that disparagement is tied to intent when considering the term redskins, which includes the context of use, but that the word nigger is inherently disparaging regardless of context and presumably intent. Butters Dep. pp. 279:19-25 – 280:2-22 (TTABVue 163, p. 92) (Q. Sir, let’s talk for a moment about your views as to the meaning of the word disparaging. Is it your testimony that disparaging means – excuse me, includes an intent to belittle or to demean? A. That is correct. Q. So there’s some intentionality involved in the word disparaging: A. Yes. Q. And that refers to the intention of the speaker? A. Yes. Q. You also testify, sir, that the word nigger is a disparaging word; is that correct? A. Yes. Q. The word nigger itself has no intentions, correct? A. Correct. Q. The word itself has no ability to form any intentions; is that correct? A. Of course. Q. Yet you say that the word itself is disparaging; is that correct? A. The word nigger is a disparaging word in the English language, yes.”). Thus, if the evidence regarding the inherent nature of the term is strong (or as Mr. Barnhart, respondent’s other expert discussed infra, explains that while no word is intrinsically offensive, overwhelming offensive usage would merit a usage label, Barnhart Dep. p. 44, (TTABVue 159, p. 47)), that would be probative of disparagement in any context to the perception of the referenced group within the context of the specific services without direct evidence.
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Here, petitioners assert that REDSKINS is a racial slur, thus the facts do not present the Doughboy case because it is not allegedly an innocent term where the nature of the goods or services renders the mark disparaging. The facts also do not fall within the part of the Squaw Valley case where the Board reversed the refusal as to the ski-related gear because it did not pass the first prong of the test inasmuch as the word lost its allusion to Native American women when used in the ski context due to the geographic location called “Squaw Valley” and the well-known ski resort located there. Here, it is conceded by the parties and established by the record that the term REDSKINS retains its meaning “Native American” even when used with respondent’s services.
Turning back, then, to the issue in this case, namely, whether the term REDSKINS was disparaging at the time of registration, the services do not have an effect on the meaning of the term, i.e., the first prong. The question is only as to the second prong, whether the term is disparaging. The facts of this case demonstrate the type of disparagement presented in Heeb and the non-ski-related goods and services portion of Squaw Valley. In other words, respondent’s alleged honorable intent and manner of use of the term do not contribute to the determination of whether a substantial composite of the referenced group found REDSKINS to be a disparaging term in the context of respondent’s services during the time period 1967-1990, because the services have not removed the Native American meaning from the term and intent does not affect the second prong. If it is found to be
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disparaging during the relevant time period, then the Trademark Act mandates removal from the register.44
In presenting their case, petitioners laid out two categories of evidence to prove that the term REDSKINS, even when considered solely as used with football and cheerleading services, was disparaging during the relevant time periods: (1) a general analysis of the word; and (2) the specific views of the referenced group. In some instances these two types of evidence intersect.
As noted above, the prior Harjo case encompassed more issues as reflected by the pleadings and illustrated by the voluminous and wide-ranging record. We only focus on the evidence that most directly reflects the sentiments of Native Americans. In particular, concerning the general analysis of the word, we focus on the testimony and reports provided by the parties’ respective experts, dictionary definitions and reference books. For the specific views of Native Americans, we focus on the National Congress of American Indians’ (“NCAI”) 1993 Resolution 9311, the deposition of NCAI Executive Director, Ms. JoAnn Chase, the deposition of Harold Martin Gross, and various newspaper articles, reports, official records and letters.
Expert Reports Dr. Geoffrey Nunberg served as petitioners’ expert witness in linguistics, specializing in lexical semantics (“the study of the use of words and lexicography”).45
44 As noted above, the Board’s jurisdiction is limited to the question of registrability. The Board does not have the power to enjoin use.
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Dr. Ronald R. Butters served as respondent’s linguistic expert witness,46 specifically
tasked by respondent to research “the evolving history of the meaning of the term
redskin in American English.”47 David K. Barnhart was respondent’s expert
witness in lexicography, whom respondent asked to evaluate “the term redskins in
the current American usage, particularly in the context of sports.”48 The record
establishes that each of these witnesses is qualified to testify regarding the term
“redskin” within the context of their specialties.49
45 Geoffrey Nunberg earned a Ph.D. in linguistics from City University of New York, served as a Consulting Professor of Linguistics at Stanford University and a principal scientist at Xerox Palo Alto Research Center, and served as an editor and chair of the usage panel for the American Heritage Dictionary. Geoffrey D. Nunberg Dep. 229:15-25, 230:8-12, Feb. 18, 1997 (“Nunberg 2/18/97 Dep.”) (TTABVue 81, pp. 122-23); Nunberg Dep. Ex. 32 (TTABVue 108, pp. 95, 99). Dr. Butters, respondent’s expert witness, opined that Dr. Nunberg has a good reputation and is an expert in the field of linguistics. Butters Dep. 73:-74:, Dec. 20, 1996 (TTABVue 163, p. 23). 46 Ronald R. Butters earned a Ph.D. in English with a concentration in linguistics, served as Professor of English at Duke University and co-chaired its linguistics program, and served as chief editor of American Dialect Society publications. Ronald R. Butters Dep. 8:22-25, 9:22-23, 10:13-25, Dec. 20, 1996 (“Butters 1996 Dep.”) (TTABVue 163, pp. 6, 7); Butters Dep. Ex. 1 (TTABVue 164, p. 4). 47 Butters 1996 Dep. 23:10-14 (TTABVue 163, p. 10). 48 David K. Barnhart Dep. 5:11-12, 24:5-9 (TTABVue 159, pp. 8, 27); Barnhart Dep. Ex. 2 (TTABVue 162, p. 14). Mr. Barnhart was a general editor at Clarence L. Barnhart, Inc., a “small dictionary house” between 1966 and 1980, and at the time of his deposition, was the founder and owner of Lexik House Publishing, a publisher of the Barnhart Dictionary Companion, “a quarterly journal that updates dictionaries.” Barnhart Dep. 13:1-14:14, 20:25-21:20) (TTABVue 159, pp. 16, 23-24); Barnhart Dep. Ex. 2 (TTABVue 162, p. 14). Mr. Barnhart did not survey or evaluate Native Americans’ reaction to the use of the term “redskins.” His research “involved more general English usage than targeting a particular ethnic group.” Barnhart Dep. 62:10-25 (TTABVue 159, p. 65). 49 None of the experts specifically researched Native American viewpoint of the word “redskin(s)” in connection with football-related services during any time period.
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We focus on those parts of the expert reports and testimony concerning the
derivation of the word redskin(s), dictionary usage labels and usage of the term
“redskin(s)” over the years in various media.50
1. Derivation of the Word “Redskin(s)” as Reference to Native Americans
Mr. Barnhart explains that “[t]he original (or core) meaning of the word
redskin identifies the race of people found by colonizing Europeans in the 16th and
17th Centuries.”51 In his report Mr. Barnhart confirms that “redskin(s)” as an
ethnic term refers to skin color:
It is reasonable to expect people upon encountering something new to use a term which bears on its use, size, appearance or other characteristic feature. The word red appears in a large number of terms in English. It should be noted that there is another meaning for redskin descriptive of a variety of potato. In the case of the potato it is because of its color. In the case of the people living in North America
50 Mr. Barnhart and Dr. Butters offered conclusions that the term “redskin(s)” has taken on a secondary meaning as the name of respondent’s team. See Barnhart Dep. Exh. 3 (TTABVue 162 pp. 18-19) (“There is ample evidence to support the position that Redskins has acquired secondary meaning in the context of sports. . . . The collected evidence indicates that the use of the term redskin in the context of sports is overwhelmingly more significant that [sic] the use of the term in its core meaning. . . . It is my conclusion based on the examination of evidence of usage consistent with the practice of lexicography and linguistics that the term Redskins as used by the Washington Redskins has acquired secondary meaning separate from the usage associated with the North American Indians.”) See also Butters 1996 Dep., pp. 23-24 (TTABVue 163, 10) (“I think the major change began with the inception of the Washington Redskins football team in the 1930s. As that team evolved and as professional football grew more and more popular and influential in American popular culture, the term Washington Redskins, in general the larger term Washington Redskins, and then more particularly the shortening of Washington Redskins to Redskins began to take on a meaning of its own identified with the football team. So that this secondary meaning became a very important meaning for the term itself.”) However, this evidence goes to the first prong of the test where it is found and conceded that the asserted “secondary meaning” retains the “core meaning” Native American. Because REDSKINS used in connection with respondent’s services while meaning a football team, retains its “core meaning” identifying a “race of people,” the meanings are not legally separate for the purposes of determining disparagement under Section 2(a). 51 Barnhart Expert Report (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, p. 18).
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upon the arrival of Europeans it was likewise based upon appearance. . . . In recent years the sensitivities of these people have caused some speakers of English to adjust their usage of some of these terms accordingly. . . . The naturalness of the construction of the word redskin is underscored by the presence in the language of other terms with reference to color in describing the appearance of a person’s skin. Blue skin is a 19th Century term used to describe blacks. See for instance Grose 1796 edition where he defines blue skin as “a person begotten of a black woman by a white man. One of the blue squadron; any one having a cross of the black breed, or, as it is termed, a lick of the tar brush.” . . . Another example of this genre is darkskin for a black. Still other examples include yellow-skin for an Asian, blackskinned and brown-skinned for blacks.52
In extrapolating on the concept of the use of skin color in language Mr.
Barnhart testifies as follows:
Q. Do you know the word darky?
A. Yes.
Q Is that word natural in its construction insofar as it applies to complexion?
A. Yes.
Q. Is it offensive to African-Americans?
A. It can be.
Q. Is it derogatory?
A. Depending on the context, yes. But I haven’t evaluated the context of darky particularly, so I would want to see some more examples and evaluate what evidence I could accumulate, yes.53
The record includes two works by Irving Lewis Allen who Dr. Butters testifies
is a sociologist “who has given some thought to language” and is “certainly a
52 Barnhart Expert Report (TTABVue 162, p. 21). 53 Barnhart Dep. pp. 71-72 (TTABVue 159, pp. 74-75).
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respectable scholar.”54 We particularly point to the following excerpt from his book

Unkind Words: Ethnic Labeling from Redskin to WASP (Bergin & Garvey 1990) p.

18:

Nearly half of all interracial slurs ...refer to real or imagined physical differences. ... Most references to physical differences are to skin color, which affirms what we have always known about the significance of color in human relations. Asian groups were called yellow this and that and Native Americans were called redskins, red men, and red devils.55

2. Dictionary Usage Labels for “Redskin” Entries

The record includes several dictionary definitions (submitted separately or

within the contexts of the expert reports) published during the relevant time frame

of 1967 through 1990. A representative sample is set forth below:

a.

RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1204 (1967):56

redskin n. Often Offensive. a North American Indian.

RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1204 (1973):57 redskin n. Often Offensive. a North American Indian.

RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1618 (2d ed. 1987):58 redskin n. Slang (often disparaging and offensive). a North American Indian.

54 Butters 1996 Dep. 72:15-23, Dec. 20, 1996 (TTABVue 163, p. 22).
55 Irving Lewis Allen, Unkind Words: Ethnic Labeling From Redskin To Wasp (Bergin & Garvey 1990), Petitioners’ Notice of Reliance, Ex. 57 (TTABVue 87 p. 20). See also Allen, Irving Lewis, The Language of Ethnic Conflict Social Organization and Lexical Culture (Columbia University Press 1983) p. 51 (Redskin listed as an ethnic epithet for Native American) Petitioners’ Notice of Reliance Ex. 1 (TTABVue 63, p. 41).
56 Petitioners’ Notice of Reliance, Ex. 1 (TTABVue 62, p. 171).
57 Petitioners’ Notice of Reliance, Ex. 1 (TTABVue 63, p. 11).
58 Petitioners’ Notice of Reliance, Ex. 1 (TTABVue 63, p. 48).
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b.

HBJ SCHOOL DICTIONARY (1977):59

redskin n. A North American Indian.

c.

WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY OF THE ENGLISH

LANGUAGE UNABRIDGED 1513 (2d ed. 1977):60

red’skin, n. a North American Indian; so called from the

reddish or coppery color of the skin.

c.

WORLD BOOK DICTIONARY, VOL. 2 1752 (1979):61

redskin (red’skin’), n., adj. North American Indian: We

have had more difficulty with white desperadoes than with

redskins (Theodore Roosevelt).

d.

OXFORD AMERICAN DICTIONARY 564 (1980):62

redskin n. (contemptuous) a North American Indian.

e.

OXFORD ENGLISH DICTIONARY 429 (2d ed. 1989):63

redskin. Also red-skin [See RED a. 5c.] 1. A North

American Indian. (Not the preferred term.).

We further note the earliest restrictive usage label in dictionary definitions

in Mr. Barnhart’s report dates back to 1966 from the Random House Unabridged

First Edition indicating REDSKIN is “Often Offensive.” From 1986 on, all of the

entries presented by Mr. Barnhart include restrictive usage labels ranging from

“not the preferred term” to “often disparaging and offensive.”64

All of the experts referenced, either by testimony or in their expert reports,

the seminal work in lexicography, Dictionaries: The Art and Craft of Lexicography,

59 Nunberg Dep. Ex. 9 (TTABVue 83, p. 103). 60 Nunberg Dep. Ex. 14 (emphasis in original) (TTABVue 83, p. 118). 61 Nunberg Dep. Ex. 13 (emphasis in original) (TTABVue 83, p. 116). 62 Petitioners’ Notice of Reliance, Ex. 1 (TTABVue 63, p. 18). 63 Petitioners’ Notice of Reliance, Ex. 1 (emphasis in original) (TTABVue 63, p. 57). 64 Barnhart Expert Report (June 8, 1996), Barnhart Dep. Exh. 3 (TTABVue 162, p. 27).
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written by Sydney I. Landau and first published in 1984.65 Mr. Barnhart, the
lexicographer, explained that usage labels are a “[r]eflection of the opinion of the
editor in chief … But some people that are in lexicography have been known to be
less stalwart and have caved into suggestions from non-editorial sources.”66 He
explains that “unlabeled terms are standard and labeled terms are labeled for some
particular character.”67 Mr. Barnhart explained that the “basic and longstanding
practice in lexicography which deals with noteworthy ranges of usage of any given
entry term is to label those instances of terms when the usage deviates from
‘Standard English.’ ”68 According to Mr. Barnhart, a term is generally “assumed to
be ‘Standard’ if it is unlabeled.”69 However, there are times when a word “is worthy
of special attention, a label (usually in italic type) is included in the entry.”70
Mr. Barnhart explains that there is no standardized method in the field of
lexicography regarding restrictive usage labeling.
65 See Barnhart Expert Report pp. 9, 18-19 (unnumbered) (quoting Sydney Landau, Dictionaries: The Art & Craft of Lexicography (1984)), Barnhart Dep. Ex. 3 (TTABVue 162, pp. 26, 35-36); Butters Expert Report 5-6, 16 (June 7, 1996) (citing Sydney Landau, Dictionaries: The Art & Craft of Lexicography (1984)), Respondent’s Notice of Reliance, Ex. 9 (TTABVue 129, pp. 41-42, 52); Nunberg 2/18/97 Dep. 331:13-332:25 (TTABVue 81, pp. 224-25). 66 Barnhart Dep. p. 22, (TTABVue 159 p. 25). 67 Barnhart Dep. p. 45 (TTABVue 159 p. 48. 68 Barnhart Expert Report 8 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, p. 25). Barnhart stated that “Standard English” is basically English that “is acceptable in business, normal communications between people, that is, everyday conversation, letter writing, telephone conversation where no particular special connotation is associated . . . in the context under consideration.” Barnhart Dep. 36:17-23 (TTABVue 159, p. 39). 69 Barnhart Expert Report 8 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, p. 25). 70 Id.
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There are no agreed upon criteria for finding some usages vulgarly offensive or contemptuous or abusive. There are few studies that shed any light on the degree of offensiveness of specified terms under specified conditions.71 Each expert points to the influence of outside forces, or “pressure groups” on
the adoption of usage labels by dictionary editors. For example, Dr. Butters
testifies that sociologists, historians, and anthropologists applied “sociopolitical
pressure” regarding the use of the term “redskin” on dictionary editors and “that
any dictionary that labels redskin as a derogatory term is doing so, at least
indirectly, as a result of, at least in large part, sociopolitical pressure.”72 This
phenomenon is also recognized in the reference works relied on by the experts.73
As part of his research, Mr. Barnhart reviewed dictionary entries for the term
“redskin” between 1859 and 1992. He found no restrictive usage labels for the term
“redskin” in any dictionaries prior to 1965.74 Beginning in 1966 Mr. Barnhart’s
reviewed dictionary entries start to include usage labels indicating the term is
offensive. See Random House Unabridged (1st ed. 1966). From that time on, more
publishers include such labels at an increasing rate. By 1983, all of Mr. Barnhart’s
71 Barnhart Expert Report 9 (unnumbered) (quoting Sydney I. Landau, Dictionaries: The Art and Craft of Lexicography (1984)), Barnhart Dep. Ex. 3 (TTABVue 162, pp. 26). 72 Butters 1996 Dep. 61:7-11, 63:22-64:2 (TTABVue 163, p. 20); Butters Expert Report p. 5 citing Sydney I. Landau, Dictionaries: The Art and Craft of Lexicography (1984) (TTABVue 162 p. 69) (“In addition, what constitutes a significant-enough semantic change to warrant the revision of a dictionary entry is often a judgment call, one which is furthermore highly subject to overt and covert sociopolitical pressures, especially where possible changes in connotation and usage are concerned.”) 73 Butters Dep. pp. 61-64 (TTABVue 163, p. 20). 74 Barnhart Expert Report 9-11 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, pp. 2628). Mr. Barnhart reviewed twenty dictionaries published between 1946 and 1964. Id.
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examples include a usage label indicating it is offensive.75 Mr. Barnhart’s
conclusion only references labels that use the word disparaging:
Since 1966, the labeling of the term has been erratic at worst and inconsistent at best. Of the twenty-eight dictionaries consulted which appeared between 1966 and 1992, ten editors reported the term as “standard English”. Only two dictionaries have identified the term redskin as “disparaging”.76
However, we consider the usage labels that employ the term “offensive” also
to support the legal conclusion under Section 2(a) that a term is “disparaging.”
Therefore, Mr. Barnhart’s conclusion is based on too narrow a construction because
he views the label “disparaging” as requiring intent.77 As noted above, for the
purposes of our legal review intent does not figure into the equation. More
significantly, we disagree that the labeling is erratic and inconsistent. Rather it
75 The report includes a listing for Thorndike-Barnhart Dictionaries that indicates that their World Book Dictionary “1969-1992” had no label but their Intermediate Dictionary included a label starting in 1974. It is unclear which specific years the World Book Dictionary was actually published or if the range of years simply indicates the time period before a next edition issued and we do not include that reference in our calculation. The 1989 Oxford English Dictionary has the usage label “not the preferred term”; however, the 1980 Oxford American Dictionary includes the more direct usage label “contemptuous.” We include “not the preferred term” in the category of restricted usage, but also find this dictionary less probative than the one directed specifically to American usage. 76 Id. at 30. 77 “When labeling a word as disparaging, lexicographers are trying to determine the speaker’s intent, and when labeling a word as offensive, they are assessing a hearer’s response to it.” Barnhart Expert Report (quoting John McCluskey, Dictionaries and Labeling of Words Offensive to Groups With Particular Attention to the Second Edition of the OED, 11 Dictionaries: J. of the Dictionary Soc’y of N. Am. 119 (1989), Barnhart Dep Ex. 3 (TTABVue 162, p. 26). See also Barnhart Dep. pp. 51-52 (TTABVue 159, pp. 54-55) (“Offense is something – disparaging and derogatory tend to refer to the speaker and to the mental baggage that person is carrying along with him. Offensive tends to refer to the hearer and the mental baggage that person is carrying along with him. By ‘mental baggage’, I mean their experience with the language and how they use it and how they feel about it.”)
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shows a clear trend beginning in 1966 to label this term as offensive and by 1986 the dictionaries are unanimous.
Mr. Barnhart also found that among dictionary editors’ labels “there has been a sensitivity to how people react to that term [redskin] now.”78 In his expert report, Mr. Barnhart made the following conclusion based on his evaluation of the term “redskin” as it appears in various dictionary entries during the relevant time frame:
[T]he use of the term redskin, in its core meaning and as recorded in dictionaries, is usually recognized among lexicographers as ‘Standard English’ which means that it is acceptable in both formal and informal speech or writing of educated people.79 This conclusion stands in contrast to the trend in usage labels during the relevant time period discussed above and the severe drop-off in usage discussed below. It is also contradicted by his statement in the same report that: The record of dictionary editors’ opinions as reflected in the labeling of usage for the term redskin suggests that during the latter third of this century there has developed some change in the perceived usage of the term.80 We further note Mr. Barnhart is addressing usage by the general population and not from the viewpoint of Native Americans. In his expert report, Dr. Butters opined that “sporadic labeling of redskin as ‘offensive’ is of dubious value in assessing the tone and full meaning of redskin(s) in
78 Barnhart Dep. 63:5-5 (TTABVue 159, p. 66). 79 Barnhart Expert Report 14 (unnumbered), Barnhart Dep., Ex. 3 (TTABVue 162, p. 31). 80 Barnhart Expert Report 8 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, p. 25) (emphasis in the original).
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past and present American culture.”81 Dr. Butter’s ultimate conclusion is of limited probative value in that it pertains to general “American culture” rather than to the Native American viewpoint. In 1996, Dr. Butters testified as to the following:
In the last 10 or 15 years, one begins to see in dictionaries the—in some dictionaries the labeling of the term redskin as sometimes offensive. One also begins to see in very recent years references to the use of the term redskin as a possibly offensive term. So that there is this, what I would say—my conclusion is a very recent incipient change.82 This statement recognizes the trend in usage labels during a portion of the relevant time period. 3. Use of the term Redskins in Various Media The record shows wide usage of the term in various media prior to the late sixties and very sporadic usage thereafter. A few examples are set forth below: Merrit Meets the Enemy. Victory over our Frontier Foes. ThirtySeven Redskins Sent to the Happy Hunting Grounds. The Indian Problem Reaching a Conclusion. Rocky Mountain News (October 8, 1879);83 And excited by firewater they dug up their rusty hatchets and prepared for blood and thunder. ‘Ugh,’ said every greasy redskin … Rocky Mountain News (November 19, 1890);84 “Fort Wicked” Too Tough for Redskins . . . Headline from Rocky Mountain News (October 21, 1931);85
81 Butters Expert Report 4, Respondent’s Notice of Reliance, Ex. 9 (TTABVue 129, p.40). 82 Butters 1996 Dep. 24:11-18 (TTABVue 163, p. 10). 83 Nunberg Expert Disclosure p. 8 (TTABVue 83, p. 67). 84 Id. 85 Nunberg Expert Disclosure p. 9 (TTABVue 83, p. 68).
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“Good luck, get a redskin for me.” Excerpt from the 1940 movie Northwest Passage;86
“There is reason in her words!” at length broke from his compressed and trembling lips; “ay, and they bear the spirit of Christianity; what might be right and proper in a redskin, may be sinful in a man who has not even a cross in blood to plead for his ignorance.”87
Indian Fights on the Texas Frontier: A True Account of the Last Exciting Encounters with Redskins in Hamilton, Comanche, Brown, Erath and Adjoining Counties (Fort Worth: Pioneer Pub. Co. 1927); Fighting Rebels and Redskins: Experiences in Army Life of Colonel George B. Sanford, 1861-1892 (Univ. of Oklahoma Press 1969); Bluecoats and Redskins: The United States Army and the Indian 18661891 (London: Cassall, 1975); Flashman and the Redskins (New York: Knopf/Random House 1982).88
Dr. Nunberg conducted several searches of an electronic database featuring
articles from major newspapers and magazines published between approximately
1975 through 1989 to glean information about use of the word “redskins” in the
context of Native Americans.89 According to Dr. Nunberg, “newspapers and
television use have a particular influence on the way words are used and [help]
shape the general impressions of the meanings of those [words].”90
86 Id. 87 Barnhart Expert Report (TTABVue 162, p. 24) (quoting a 1979 edition of James Fenimore Cooper’s The Last of the Mohicans. This book was first published in 1846). See Butters Expert Report p. 7 (TTABVue 129, p. 43). 88 Butters Expert Report (TTABVue 129, p. 45). These are titles of various books referenced by Dr. Butters. We note the publisher of the last title in 1982, Random House, since 1966 has included the usage label “often offensive” in its dictionaries. See Barnhart Report (TTABVue 162, p. 27). 89 Nunberg 1996 Dep. 6:2-21, 149:11-12, 151:18-20 (TTABVue 98, p. 133, TTABVue 99, pp. 101, 103); Nunberg 2/18/97 Dep. 305:10-306:8 (TTABVue 81, pp. 198-99). 90 Nunberg 2/18/97 Dep. 275:1-4 (alteration added) (TTABVue 81, p. 168).
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Dr. Nunberg reported that the database search results showed 136,473 instances of “redskin,” “redskins,” and other words beginning with “redskin,” such as “redskinnettes,” with the “vast majority” involving references to the Washington Redskins.91 Dr. Nunberg then conducted a focused search, filtering out terms such as “team,” “sport,” “Redskin Park,” “football,” “game,” “fan,” and “ticket,” to yield results of those instances when the word “redskin” was used to refer to a Native American person.92 This search resulted in approximately 300 references, although some of these still referred to the Washington Redskins, potatoes and peaches.93
Dr. Nunberg reviewed the focused search results by hand and found “71 distinct stories in which the word was used to refer to Indians.”94 According to Dr. Nunberg, none of these 71 occurrences demonstrated use of “redskin” as a standard term to refer to a Native American,95 indicating that “the word is not a ‘neutral synonym’ for Indian”96 Of those occurrences, many examples use the term in the context of racial slurs or discrimination, for example:
91 Nunberg 2/18/97 Dep. 305:17-24 (TTABVue 81, p. 198); see Nunberg 1996 Dep. 150:21151:1 (TTABVue 99, pp. 102-03). 92 Nunberg 1996 Dep. 151:17-152:8 (TTABVue 99, pp. 103-04); Nunberg 2/18/97 Dep. 305:25-306:25 (TTABVue 81, pp. 198-99). 93 Nunberg 1996 Dep. 152:9-14 (TTABVue 99, 104); Nunberg 2/18/97 Dep. 305:25-306:8, 307:1-2 (TTABVue 81, 198-200). 94 Nunberg 2/18/97 Dep. 307:3-8 (TTABVue 81, p. 200); see Nunberg 1996 Dep. 153:23154:16 (TTABVue 99, pp. 105-06). 95 Nunberg 1996 Dep. 156:3 (TTABVue 99, p. 108). 96 Nunberg Report p. 2 (TTABVue 83, p. 84). See also Nunberg Dep. p. 305-310, 314:16-21 (TTABVue 81, p. 198-203, 207).
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If Mr. Liles went back in history to when the 13 colonies were being organized, he would have seen that “redskin” was not used to convey respect, adulation or honor.97
A man who resigned from the Pulaski County sheriff’s office because of alleged harassment as an American Indian has won $24,727 in a race discrimination lawsuit. . . . He said he was called “chief,” “Indian Joe” and “redskin.”98
More significant than the relatively small number of uses as a reference to
Native Americans, and many of those in the context of racial slurs, is the relative
absence of use of the term to describe a person. Dr. Nunberg found it significant
that this search yielded so few results showing the term “redskin” as a reference to
a Native American:
There were in this database over 74,000 instances of the phrase ‘American Indian’ or ‘American Indians.’ And over 73,000 instances to the phrase ‘Native Americans,’ a disproportion of about 2,000 to 1 which suggests that the use of ‘redskin’ to refer to Indian is extremely rare in this database which suggests some reason for avoiding the term since it is, in fact, a commonly used term, for example, in the cinema and historical sources.99 Respondent objects to Dr. Nunberg’s opinion as irrelevant because it is
lacking in scientific basis. However, we do not rely on Dr. Nunberg’s ultimate
opinions and conclusions regarding the word “redskins,” rather we look to the
underlying data that is not in dispute which undeniably shows a drop-off in usage.
This is corroborated by respondent’s expert, Mr. Barnhart who conducted a similar
electronic database search, discussed infra. As to the data, respondent’s objection
97 Id. at 3 (TTABVue 83, p. 85). 98 Id. at 5 (TTABVue 83, p. 86). 99 Nunberg 2/18/97 Dep. 307:18-308:2 (TTABVue 81, pp. 200-01).
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that the “uses that date from outside the pertinent time periods [are irrelevant] and are not reflective of Native Americans’ viewpoints,” is overruled.100 As noted above, the search encompasses the relevant time period, and is relevant in correlation to objection to use of this term by Native Americans.
Mr. Barnhart conducted a similar search using a Nexis electronic database group file featuring major newspapers, magazines and journals published between 1969 and 1996.101 He found that the term “redskin” or “redskins” appeared in 143,920 articles at least once.102 Similar to Dr. Nunberg’s initial search results, Mr. Barnhart reported that the results of his “redskin” database search were “overwhelming to be in the context of sports,” with less than two percent of the results referring to Native Americans.103
Mr. Barnhart would not draw any inferences about the infrequency in which the term “redskin” or “redskins” was used to refer to Native Americans. He testified that it was not what he was asked to do and it would be a significantly greater project to determine whether there is any significance to the lack of occurrences.104 However, in his report he did, in fact, draw conclusions, when he concluded that the term REDSKIN “is acceptable in both formal and informal speech or writing of
100 Pet’rs’ Br. p. 18. 101 Barnhart Expert Report 3, 18 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, pp. 20, 35). 102 Barnhart Dep. 64:13 (TTABVue 159, p. 67); Barnhart Expert Report 3, 12 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, pp. 20, 29). 103 Barnhart Expert Report 12 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 161, p. 29); see Barnhart Dep. 69:5-8; 117 (TTABVue 159, p. 72, 120). 104 Barnhart Dep. 67:15-70:6 (TTABVue 159, pp. 70-73).
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educated people.”105 The conclusion he drew was that its absence from the database references somehow supports, or at least does not refute, his finding that the term is part of standard English and acceptable for formal and informal speech or writing. Such a conclusion stands in contradiction to the stark drop off in usage as shown by Dr. Nunberg’s research and supported by Mr. Barnhart’s own research which shows, inter alia, use of the term in many literary sources until 1969 where his search of the Nexis database spanning the years 1969-1996 reveals only 2 percent of the appearances of “redskin(s)” related to “Amerindians” (96 percent referenced respondent’s team and 2 percent referenced Miami University’s former team name), and the addition of the usage labels in the dictionaries during the same time period. Mr. Barnhart confirms that for the last thirty years (from 1967 to 1997 the date of the deposition) “the overwhelming context in which the term redskins is used in general literature” is in a sports context.106 To the extent respondent relies on this data to show that because it is printed in newspapers reporting on the professional football team by that name it is not disparaging in that context, Mr. Barnhart testified that his report is not based on Native American response to the term in this context, therefore, we cannot rely on this data to make such a finding or to even raise doubt about other findings, regarding the viewpoint of Native Americans.
Mr. Barnhart testifies that while the term “redskin(s)” was not disparaging “as applied to American Indian persons” in 1967-1985 it might have been
105 Barnhart Expert Report (TTABVue 162, p. 31). 106 Barnhart 1997 Dep. p. 162 (TTABVue 161, p. 10).
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offensive.107 As noted above, Mr. Barnhart attaches intent of the speaker to the
word disparaging and his view of offensive is more in line with the meaning of
disparaging in the context of Section 2(a).
NCAI Resolution
The Executive Council of the National Congress of American Indians
(“NCAI”), “the oldest and largest intertribal organization nationwide representative
of and advocate for national, regional, and local tribal concerns,” passed a resolution
in 1993, entitled the “Resolution in Support of the Petition for Cancellation of the
Registered Services Marks of the Washington Redskins AKA Pro-Football Inc.”108
The resolution includes in pertinent part the following:
NCAI is the oldest and largest intertribal organization nationwide representative of and advocate for national, regional, and local tribal concerns; . . . . [T]he term REDSKINS is not and has never been one of honor or respect, but instead, it has always been and continues to be a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging and racist designation for Native American’s [sic]; and [T]he use of the registered service marks identified in Exhibit B to this resolution by the Washington Redskins football organization, has always been and continues to be offensive, disparaging, scandalous, and damaging to Native Americans.109
107 Barnhart 1997 Dep. p. 181:2-25; 182:2-12, (TTABVue 161 p. 15). 108 National Congress of American Indians Est. 1944, Resolution No. EX DC-93-11, Resolution in Support of the Petition for Cancellation of the Registered Services Marks of the Washington Redskins AKA Pro-Football Inc. (Jan. 18-19, 1993) (“NCAI Resolution”), Petitioners’ Notice of Reliance, Ex. 3 (TTABVue 63, pp. 71-77). 109 Id. (emphasis added).
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Respondent objects to the NCAI resolution “as irrelevant, to the extent that it
dates from a time period not relevant to issues in this proceeding.”110 Respondent
further asserts that the District Court found it “irrelevant to the calculus.”111 The
full quote from the District Court is set forth below:
All of these resolutions were made after the relevant time frame, with no explanation by the TTAB as to how they ‘shed light’ on the relevant time period, and thus, are irrelevant to the calculus . . . [and] the TTAB made no findings of fact about the strength of this evidence.
Pro-Football, Inc. v Harjo, 68 USPQ2d at 1255.
We begin by stating that there is no question as to the authenticity or
identity of this document. The stipulation by the parties is clear and unequivocal
“all evidence admissible in [Harjo] shall be admissible in this proceeding” and only
objections as to relevance were preserved for the evidence covered under paragraph
one of the stipulation.112 The testimony by Ms. Chase, discussed infra, regarding
the procedures by which the NCAI Executive Council passes its resolutions and as
stated in the NCAI by-laws, and the other evidence of record showing NCAI
membership (referenced infra in the findings of fact), is sufficient to support the
credibility, reliability and trustworthiness of the resolution.113 In addition, Ms.
Chase’s testimony along with other evidence sets out the circumstances under
110 Resp. Br. Appendix A p. 1 (TTABVue 181, p. 58). 111 Resp. Br. p. 20 (TTABVue 181, p. 26) quoting Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1255. 112 Parties’ Stipulation (TTABVue 31). 113 There is nothing in the record to even suggest that NCAI’s procedures were not followed. While Ms. Chase was not present when the resolution was voted on, she did attend the January 18-19 gathering, during which the resolution was adopted. Chase Dep. p. 52 (TTABVue 98, p. 58).
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which the resolution was passed, i.e., that approximately 150 tribes were
represented by NCAI at that time and at least one third of the tribal members were
present to pass the resolution.114
With regard to respondent’s relevancy objection, any statement made after
each registration issued is not a statement from the time of registration; thus, based
on respondent’s logic even testimony taken from individuals in 1993-1996 (i.e.,
during the Harjo litigation) would be statements about the witnesses’ opinions
during the years 1967-1990, and as such, would be irrelevant. However, the mere
fact that an opinion is voiced in 1993 does not mean the opinion was not held by
that group or individual in the 1967-1990 time period. In Harjo, we note, the
opinions about views from 1967-1990 given by the individual plaintiffs through
testimony were accepted, by both the Board and the District Court.115 Here, we
have a claim that the registered marks disparaged Native Americans when
registered. We find that a resolution passed by an organization such as NCAI,
which throughout the relevant time period represented approximately thirty
percent of Native Americans, setting forth the past and ongoing viewpoint of the
114 To put these numbers in better context, according to the Census Bureau, there were 523,591 Native Americans in the United States in 1960, 792,730 in 1970, 1,364,033 in 1980, and 1,878,285 in 1990. Campbell Gibson & Kay Jung, Historical Census Statistics on Population Totals By Race, 1790 to 1990, and By Hispanic Origin, 1970 to 1990, For The United States, Regions, Divisions, and States App. B, tbls. B-1 to B-3 (U.S. Census Bureau, Working Paper Ser. No. 56, 2002). The U.S. census is a standard reference; therefore, we may take judicial notice of its data. Fed. R. Evid. 201; In re Broyhill Furniture Indus. Inc., 60 USPQ2d 1511, 1514 n.4 (TTAB 2001). 115 We further note respondent elicited and relied upon testimony provided in 1997 regarding views held in 1967. Barnhart 1997 Dep. pp. 170-171 (TTABVue 161, pp. 12-13) (Mr. Barnhart stating his opinion that the word “redskins” is not disparaging with regard to “the Redskins team” in 1967 through 1997). As discussed infra, Mr. Barnhart’s definition of disparaging requires intent from the speaker.
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Native Americans it represents is clearly probative of the views of Native
Americans held at the referenced time period.116 We accept individual testimony
about views held in the past, therefore we accept a group statement about views
held in the past, in particular here where the claim pertains to the views of a group
and not individuals.117 Respondent’s objection on the basis of relevancy is
overruled.
116 We note in the Harjo decision that while Resolution 93-11 was part of the record, the Board quoted from a different NCAI resolution that could be appropriately characterized as “indicating a present objection” to the word Redskins in respondent’s marks. Harjo v. ProFootball, Inc., 50 U.S.P.Q.2d at 1725, 1747. See “Resolution to Justice Department Investigation of Human Rights Violations … NCAI Resolution 93-143, calling for the abolition of Indian nicknames, Mascots and Images and commercial use of these by sporting industries, colleges, universities and automobile manufacturers … NCAI does hereby request Senator Ben Campbell-Democrat, Colorado, and Senator Don Nickles-Republican, Oklahoma, to direct the Justice Department to investigate any human and civil rights violations by colleges, universities, and public institutions and exploit Indian imagry [sic] and lifestyles.” Petitioner’s Notice of Reliance Ex. 3 (TTABVue 83, pp. 47-48). By contrast, Resolution 93-11 clearly speaks to the viewpoint during the relevant time period. With regard to Resolution 93-11 the Board noted that “[e]vidence concerning the significance of the word ‘redskin(s)’ before and after the relevant time periods may shed light on its significance during those time periods.” Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d at 1715. To clarify, while the evidence is from a time directly after the relevant time period, it addresses the viewpoint during the relevant time period and, therefore, goes beyond “indicating a present objection.” Rather, it is evidence of the viewpoint during the relevant time period.
117 We further note an editorial from the Albuquerque Journal dated September 12, 1992 includes the following statement: “One could argue that when the team was originally named, most people – make that most White people – didn’t consider the word ‘redskins’ derogatory. But Indians have long objected to the term.” Emphasis added. Petitioner’s Notice of Reliance Ex. 20 (TTABVue 71, p. 87). New Mexico was home to 133,816 Native Americans in 1990 according to the Census data and a good portion of the Navajo Nation – Ms. Blackhorse, one of the petitioners, is a registered member of the Navajo Nation. Census Bureau, U.S. Dep’t of Commerce, Pub. No. 1900 CP-3-7, 1990 Census of Population Characteristics of Am. Indians by Tribe & Language tbl. 1 (1994).
While we do not know if the newspaper editorial was written by a Native American, as a newspaper in a state with an appreciable number of Native Americans it is reasonable to infer that the editorial board has some knowledge regarding the sentiments of the Native American community. This is simply another example of a statement describing views held in the past. Such statements serve to cover the relevant time periods. Respondent’s
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Deposition of JoAnn Chase JoAnn Chase, a Native American,118 became Executive Director of the National Congress of American Indians on April 1, 1994, and provided testimony in 1996 about Resolution 93-11.119 Respondent’s objection to Ms. Chase’s testimony as being irrelevant because the NCAI resolution dates from a time period not relevant to this proceeding is overruled. Her testimony relates to the NCAI resolution that specifically addresses the time period with which we are concerned. Her testimony also provides contemporary and historical background on the organization.
Deposition of Harold Gross In 1972, Harold Martin Gross was the Director of Indian Legal Information Development Service, a legislative oversight program.120 The mission of the Indian Legal Information Development Service was two-fold: (1) to provide career training to Native Americans in the fields of journalism, law and public affairs in the legislative process; and to provide legislative information to Native American tribes through a monthly magazine.121 The staff was comprised of Native Americans. Mr. Gross testified that they asked him to help them change the name of the Washington Redskins football team because “it was disparaging, insulting and
relevancy objection to this editorial as being from a different time period and as not written by a Native American is overruled. 118 Chase Dep. 7:11-13, Apr. 26, 1996 (TTABVue 98, p. 13). 119 Id. 5:19-22 (TTABVue 98, p. 11). 120 Gross Dep. 7:23-8:1, June 11, 1997 (TTABVue 79, pp. 169-70). 121 Gross Dep. 8:4-8:11 (TTABVue 79, p. 170).
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degrading to American Indians.”122 In January 1972, Mr. Gross drafted a letter on
behalf of his staff and sent it to Edward Bennett Williams, who was then part-
owner and president of the Washington Redskins football team.123 That letter led to
a March meeting with Mr. Williams.124
The following people attended that meeting along with Mr. Gross:125
1. Richard LaCourse, a representative of the Washington Bureau of the American Indian Press Association;
2. Leon Cook, President of the National Congress of American Indians (NCAI);
3. Ron Aguilar, District Representative of the National Indian Youth Council;
4. Dennis Banks, District Representative of the American Indian Movement;
5. Hany Geigomah, Assistant to the Commissioner of Indian Affairs and the Youth Representative from the Bureau of Indian Affairs;
6. Laura Wittstock, Legislative Review Editor of the Indian Legal Information Development Service; and
7. LaDonna Harris, President of the Americans for Indian Opportunity.
122 Gross Dep. 16:11-16:19 (TTABVue 79, p. 178). Respondent’s objection to this testimony as “irrelevant in lacking foundation and scientific basis” is overruled. The testimony simply pertains to an event he participated in and the motivation for that event. 123 Gross Dep. Ex. 32.007: Letter from Harold Gross, Dir., Indian Legal Information Dev. Servs., to Edward Bennett Williams (Jan. 18, 1972) (TTABVue 77, pp. 11-13; TTABVue 105, p. 71-73 (duplicate)). 124 Gross Dep. 9:2-9:5, 18:7-18:11 (TTABVue 79, pp. 171, 180). 125 Gross Dep. 18:19-18:23 (TTABVue 79, p. 180), Gross Dep. Ex. 32.006 (TTABVue 77, p. 10; TTABVue 105, p. 69 (duplicate)).
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At the meeting, the Native American attendees expressed their “reasons for objecting to the name of the team, and some of the trappings that went with it. And to present the reasons why [they] thought it should be changed.”126
Respondent objects to Mr. Gross’ testimony and exhibits (e.g., the letter to Mr. Williams) as irrelevant because “the organization he formerly represented comprised at most seven Native American members and itself did not represent any Native American tribe or organization.”127 The objection is overruled. The opinions of seven Native Americans expressed during the relevant time period are obviously relevant to the merits of the petition. Moreover, we do not rely on the testimony for the viewpoint of the Indian Legal Information Development Service, the organization Mr. Gross represented. Rather, we rely on this testimony and evidence to show that NCAI’s opposition to use of the word “redskins” with respondent’s services existed as early as 1972, well in advance of the 93-11 resolution and during the relevant time period. NCAI’s president, Mr. Leon Cook, participated in that meeting and supported the position that respondent should cease use of the name “Redskins.” The “Recommendations to the Washington, D.C. Professional Football Team” from “Leon F. Cook, President, National Congress of American Indians,” et al., include the following:
126 Gross Dep. 19:23-20:1 (TTABVue 79, pp. 181-82). 127 Resp’s Br. Appendix A p. 12. We further note, Mr. Gross’ deposition is another example of contemporary testimony regarding past events and opinions that are not objected to as irrelevant on that basis. We further note respondent did not object to the NCAI resolution as not representing Native American tribes.
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1. That the derogatory racial epithet “Redskins” be withdrawn as a team nickname for the professional football team of Washington, D.C.128
In 1972, NCAI represented approximately 30 percent of Native Americans.
An article published in the Washington Daily News on March 30, 1972, discussing
the meeting with Edward Bennett Williams includes the following excerpt:
After Petite’s fist shaking speech, Williams closed this first meeting with the American Indians who claim his team nickname, ‘Redskins’ is a racial slur. The eleven Indian representatives included ... Leon Cook, president of the National Congress of American Indians which claims a membership of 300,000; Dennis J. Banks, national chairman of the American Indian Movement.129
In addition, an article published in The Washington Post on Thursday March
30, 1972 includes the following:
A DELEGATION OF 11 people representing a variety of Indian organizations ... Among the group ... requesting that ‘the derogatory racial epithet ‘Redskins’’ be banished from the Washington sports scene were ...Leon Cook, president of the National Congress of American Indians which claims a membership of 350,000 Indians, according to the protesting group’s informal leader, Harold Gross, an attorney for another Indian organization.130
Harold Gross testified that he worked for NCAI in 1969 and would have first-hand
knowledge as to the membership in that time period.131 This evidence regarding
NCAI’s membership in the relevant time period, as well as its participation in the
128 Gross Dep. Ex. 32.005 (TTABVue 77, p. 9). 129 Petitioners’ Notice of Reliance Ex. 18 (TTABVue 48, p. 33) (emphasis added) 130 Petitioners’ Notice of Reliance Ex. 18 (TTABVue 48, pp. 85-86) (emphasis added). We do not find the discrepancy between the reports in the Daily News and Post as to the membership of the NCAI as significant. The two reports agree that NCAI claimed to represent at least 300,000 American Indians. 131 Gross Dep. p. 37 (TTABVue 79, p. 199).
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1972 meeting serves to corroborate the statement in the 93-11 resolution that the
term REDSKINS as used by the Washington Redskins “has always been …
offensive, disparaging, scandalous, and damaging to Native Americans.”132
NCAI’s decades-long challenge to the term “Redskins” is referenced in an
article in the Lakota Times published September 16, 1992:
The National Congress of American Indians has been battling against the racist use of Indians as mascots for decades. The battle has been uphill all the way because mainstream America does not see the term [Redskins] as offensive – because they are not American Indians. … Mr. Deloria who directed NCAI in the 1960’s and spoke out on the mascot issue then ... The grounds for cancellation of the federal registration include: The term ‘Redskin’ … is ... disparaging.133
Other evidence provides information regarding NCAI’s opposition to the
name “Redskins” for the football team and the number of Native Americans
represented by NCAI during the relevant time period. The state of Michigan issued
a report addressing the use of Indian names and mascots in October 1988.134 The
purpose of this report was to examine the presence of Native American stereotyping
in Michigan education institutions. The Commission surveyed colleges,
132 National Congress of American Indians Est. 1944 Resolution No. Ex DC-93-11, (TTABVue 63, p. 71) (emphasis added). 133 Lakota Times (September 16, 1992), Pet’rs’ Notice of Reliance Ex. 20 (TTABVue 71 pp. 88-89). Respondent’s objection that this article was published after the relevant time period is overruled. We only rely on the article for the information provided regarding NCAI’s activities during the relevant time period. See also NCAI Sentinel (Winter-Spring 1969) (TTABVue 48 pp. 80-82) “NCAI Wages War on Indian Image” (campaign to combat negative images and references to Native Americans); and letter from William B. Welles and Charles B. Kusen to Mr. Pete Rozelle (April 25, 1972) (commenting on “movement to change the familiar titles of many teams in the sports world,” including the “Redskins”) Petitioners’ Notice of Reliance Ex. 32 (TTABVue 77 p. 20). 134 See Michigan Civil Rights Commission Report on Use of Nicknames, Logos and Mascots Depicting Native American People in Michigan Education Institutions (October 1988) (“Michigan Comm’n Report”), Petitioners’ Notice of Reliance, Ex. 77 (TTABVue 91, p. 94).
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universities, high schools and junior high/middle schools.135 In addition, the
Commission contacted Native American organizations in Michigan to solicit
feedback on stereotyping of Native Americans.136 Respondent apparently lodged
several objections to this report (it is included by bates numbers in the objections to
documents referred to as “correspondence”); however, we only rely on the following
reference in 1988 to NCAI in this report and there is no objection to that
information.
The National Congress of American Indians, the oldest and largest national Indian group in the U.S. also supports this organization’s efforts to have the Washington team’s name changed.137
In April 1993, the Miami University Senate held meetings to determine
whether or not to abandon their team name REDSKINS, which they ultimately did.
Dr. Britton Harwood made the following statement:
The National Congress of American Indians, representing approximately 150 tribal governments, calls it [redskin] a racial slur.138
135 Michigan Comm’n Report, at 13 (TTABVue 91, p. 108). 136 Michigan Comm’n Report, at 21-22 (TTABVue 91, pp. 116-17). 137 Michigan Comm’n Report, at 6 (TTABVue 91, p. 101). 138 Statement to the [Miami] University Senate, Dr. Britton Harwood 1993 Minutes from University Senate April 5, 1993, Petitioners’ Notice of Reliance Ex. 87 (TTABVue 95, p. 19). These minutes were made admissible in the Harjo proceeding in view of both parties not objecting to the other parties’ documents submitted under notice of reliance. They have been stipulated into this record and there is no objection based on authentication or foundation and any hearsay objection is waived (respondent objects to the relevancy of these minutes for other reasons that do not impair the statement regarding how many tribes are members of NCAI in 1993). In addition, an article from the newspaper The Voice (April 27, 1993) titled “Harwood Addresses U. Senate on ‘Redskin’ Issue” includes the statement “The National Congress of American Indians, representing approximately 150 tribal governments, calls it a racial slur.” Petitioners’ Notice of Reliance Ex. 88 (TTABVue 95, p. 29).
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This number is further corroborated a June 3, 1991 letter from Dale Pullen,
publisher of The U.S. Congress Handbook to Charlie Drayton, the Vice President of
Communications for the Washington Redskins, submitted by respondent to show
Native American support of the team.139 In his letter, Mr. Pullen wrote the
following:
The National American Indian Council, representing 70 per cent of the American Indian population, would like 400 U.S. CONGRESS HANDBOOKS for their D.C. meeting beginning June 7. Ms. Lee Ann Tallbear, Executive Director, for the NAIC, called to see how she might get books . . . . Ms. Tallbear said that her group represents about 1.2 million American Indians who do not live on reservations. The National Congress of American Indians represent [sic] Indians living on reservations (the remaining 30 percent). In 1995, there were approximately 500 recognized tribes in the United States; 150
would have been about one third in 1993.140 Ms. Chase also testified that there
were between 100 – 400 members at the time the resolution was taken.141
We further note that in addition to NCAI, the American Indian Movement
(AIM) was represented at the 1972 meeting. AIM was founded in 1968 as stated in
the following letter from Clyde H. Bellecourt, National Director of the AIM and
139 Chase Dep. pp. 104-105 (TTABVue 98, pp. 110-11), Respondent’s Notice of Reliance Ex. 29.1 (TTABVue 142, p. 43) (shown as the Deloria Exhibit 35 also presented as exhibit 41 in the Chase deposition). 140 1995 Federal Register, Respondent’s Notice of Reliance Ex. 64 (TTABVue 151, pp. 5763). 141 Chase Dep. p. 54 (TTABVue 98, p. 60). It is interesting to note that the 1992 WTOP survey shows 28 percent of tribal leaders (again approximately 30 percent) found the name offensive and wanted it changed. John Kent Cooke Dep., Ex. 6 (TTABVue 149, pp. 43-68; TTABVue 156, pp. 11-38).
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William A. Means, President of International Indian Treaty Council, to Jack Kent
Cooke142 dated December 20, 1991:
The American Indian movement (AIM) is the foremost advocacy organization representing and defending the spiritual, cultural, political and treaty rights of the Indigenous (Indian) peoples in all of North, Central and South America. … The American Indian Movement, which was reborn here in Minneapolis, Minnesota in 1968 … The efforts by Indian people to cleanse organized sports, both within major league baseball, the national football league and hockey, as well high school and university athletic programs has been ongoing for years. … We have received hundreds of calls and letters both national and international in support of our efforts to change these demeaning names (i.e. Washington Redskins) … by sports teams and athletic programs.143
Letters of Protest
Petitioners submitted 19 letters from individuals identifying themselves or
family members as Native Americans from across the United States representing a
geographic cross section (South Dakota, Virginia, Florida, Nebraska, Iowa, Idaho,
Minnesota, Georgia, Illinois),144 letters from three Native American
organizations,145 one letter from the Otoe-Missouria Tribe,146 in which they
142 Jack Kent Cooke was respondent’s former “chairman of the Board, . . . president and a director.” John Kent Cooke Dep. 15:16-21, Mar. 26, 1996 (TTABVue 65, p. 86). 143 Letter from Clyde H. Bellecourt, Nat’l Dir., Am. Indian Movement, and William A. Means, President, Int’l Indian Treaty Council, to Jack Kent Cooke (Dec. 20, 1991), Petitioners’ Notice of Reliance, Ex. 5 (TTABVue 63, pp. 172-76). 144 Petitioners’ Notice of Reliance Ex. 5 (TTABVue 63, pp. 84-177; 67 pp. 14, 65, 86-87, 93, 130); petitioners’ Notice of Reliance Ex. 2 (TTABVue 77, p. 6). 145 Letter from Clyde H. Bellecourt, Nat’l Dir., Am. Indian Movement, and William A. Means, President, Int’l Indian Treaty Council, to Jack Kent Cooke (Dec. 20, 1991), Petitioners’ Notice of Reliance, Ex. 5 (TTABVue 63, pp. 172-76); Letter from Loren Stiffarm, President, Nat’l Indian Educ. Ass’n, to Manuel Lujan, Dept. of Interior (Mar. 16, 1992), Petitioners’ Notice of Reliance, Ex. 5 (TTABVue 67, pp. 37-38); Letter from Sharon Metz, Dir., H.O.N.O.R. to Jack Kent Cooke (Oct. 1992), Petitioners’ Notice of Reliance, Ex. 5 (TTABVue 67, pp. 68, 136).
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protested the use of the term “Redskins” by respondent.147 A representative sample
of excerpts from individual letters is set forth below:
Since you continue not to believe that the term “Redskins” is not [sic] offensive to anyone, let me make this clear: The name “Redskins” is very offensive to me and shows little human interest or taste. I am a Comanche Indian from Oklahoma. Indians are having enough trouble trying to erase misconceptions about themselves without having to be hit in the face with it every day in the form of a football team or baseball team. If you think you are preserving our culture or your history, then may I suggest a change? To live up to your name, your team would field only two men to the opponents eleven. Your player’s wives would be required to face the men of the opposing team. After having lost every game in good faith, you would be required to remain in RFK stadium’s end zone for the rest of your life living off what the other teams had left you. (Which wouldn’t be much.) Since you would probably find this as distasteful as 300,000 Indians do, I would suggest a change in name. In sticking to your ethnic theme, I would suggest the Washington Niggers as a start. … This would start a fantastic trend in the league. We would soon be blessed with the San Fransisco [sic] Chinks, New York Jews, Dallas Wetbacks, Houston Greasers, and the Green Bay Crackers. Great, huh? Mr. Williams, these would be very offensive to many people, just as Redskins is offensive to myself and others. You can take a stand that would show you and the team as true believers in civil rights, or you can continue to carry a name that keeps alive a threatening stereotype to Indian people. People, Mr. Williams. We don’t want the Redskins!148
… I, along with many other Native Americans, have tried over many years to reduce the level of opprobrium and prejudice surrounding
146 Letter from Otoe-Missouria Tribe to Jack Kent Cooke (Oct. 8, 1993), Petitioners’ Notice of Reliance, Ex. 5 (TTABVue 67, p. 150). According to the Census Bureau, there were a total of 1,762 Otoe-Missourias in the United States in 1990. Census Bureau, U.S. Dep’t of Commerce, Pub. No. 1900 CP-3-7, 1990 Census of Population Characteristics of Am. Indians by Tribe & Language tbl. 1 (1994).
147 Respondent’s objections to these letters as irrelevant because there is no evidence that the authors are Native Americans or represent any Native American tribe or organization are overruled. The writers self-identified as Native Americans and respondent waived the hearsay objection. Moreover respondent relies on the same type of evidence for the truth of the matter asserted, see infra.
148 Letter from Billy Kevin Gover to Edward Bennett Williams (July 18, 1972), Petitioners’ Notice of Reliance Ex. 32 (TTABVue 77, p. 6).
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American attitutes [sic] toward Native peoples. I urge that you consider an immediate change of name for your team and that your new name reflect in no way unfavorably on any of our national or ethnic groups.149
… I must say that I am appalled at your [Jack Kent Cooke] callous attitude and comments concerning this issue. As a Native American I can assure you that I find the term “Redskin” offensive and derogatory. I don’t mind telling you that I find the name of your team totally objectionable. … I feel you’ve gotten off lightly with the concerns for this issue because the Indian population is not as large or vocal as the other minorities of this country. Because we are not highly visible that does not mean you can count us out of the human race. We deserve the right to be treated with equal respect and consideration that is entitled to any race. … Would you be offended if someone called you or a family member a derogatory racial nickname? Some of these nicknames are: honkie, wop, kraut, chink, potato head and nigger. When a Native American is referred to as a “redskin” then you are in essence calling them a name that is just as bad as those above. Would you be offended by any of these names? If so, then please reconsider your position. You people in Washington take so much care not to offend the minorities [in] your city. I don’t understand why this same care and consideration isn’t extended to other races in this country.150
I object to the use of “redskins” for a football team.151
I am an Oglala Sioux Indian living here on the Pine Ridge Indian Reservation in South Dakota. I am writing this letter concerning a matter that I feel is very important I believe that the name “Redskins,” is very demeaning to my Indian people. … Thank you for your kind attention to the matter.152
… As a member of the Oneida tribe of Indians of Wisconsin, I find the team name [Redskins] very offensive and more of an ethnic slur which
149 Letter from Joan W. Drake to Jack Kent Cooke (January 21, 1988), Petitioners’ Notice of Reliance Ex. 5 (TTABVue 63, p. 86). 150 Letter from Roxanna Pucher to Jack Kent Cooke (February 22, 1988), Petitioners’ Notice of Reliance Ex. 5 (TTABVue 63, pp. 108-109). 151 Letter from Norma Lussier to Jack Kent Cooke (member of the Red Lake Band of Chippewa Indians) (March 18, 1988), Petitioners’ Notice of Reliance Ex. 5 (TTABVue 63, p. 127). 152 Letter from Adora Martin (May 2, 1988) to Jack Kent Cooke, Petitioners’ Notice of Reliance Ex. 5 (TTABVue 63, 134).
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should have never been placed with the proud symbol of the team. … I am a big fan of the team and it’s collection of extraordinary talent, however, I remain adamantly opposed to the organization [sic] keeping the current team name.153
The Washington Redskins must go! No, not the team, but the name, which is totally demeaning of Native Americans and reinforces a negative stereotype that is unjust and unwarranted. The term “redskins” is out of a period when there was a bounty on the heads of Indians and they were scalped. Eighty cents for a man’s skin, 60 cents for a woman’s skin and 20 cents for a child’s skin. It is a period in our history that every American should be ashamed of and the continued use of such a derogatory and offensive term is an abomination. Ben Nighthorse Campbell, the only Native American in the U.S. Senate, says that “the name Redskins carries the same negative connotation as some terms that blacks and whites find offensive. The word brings to mind a negative image of uncivilized persons and has no positive meaning.” Therefore, Mr. Cooke, despite your insistence to the contrary, there is no pride or honor associated with the name. The controversy is something that will not go away, will not disappear until the term “redskin” is banished from our vocabulary. … ps. Being of direct Native American descent, I find the name especially offensive.154
All but one of the letters were written at the end or just after the relevant
time period, but do evidence the opinion of individual Native Americans across the
United States, providing further corroboration that the viewpoint in the NCAI
resolution represents a cross-section of Native Americans. We have not considered
the at least 150 letters from individuals other than Native Americans protesting the
use of the name Redskins.155 Inasmuch as our determination of the issue of
disparagement concerns the views of Native Americans, the 150 letters from non-
Native Americans have limited probative value. While they may serve to indicate a
153 Letter from Jeffrey Valentino to Jack Kent Cooke (September 14, 1992), Petitioners’ Notice of Reliance Ex. 5 (TTABVue 67, p. 65). 154 Letter from Kimberly Whitehead to Jack Kent Cooke (October 8, 1993), Petitioners’ Notice of Reliance Ex. 5 (TTABVue 67, p. 130). 155 See App. A (detailed listing of submissions by petitioners’ notice of reliance).
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broader consensus regarding the word, which may add to the weight of the evidence,
we do not find it necessary to rely on this evidence.
Respondent’s Evidence of Support for the Name
On January 16, 1992, the chief of the Modoc Tribe of Oklahoma sent the
Washington Redskins a copy of the Inter-Tribal Council (comprising the Miami,
Ottawa, Modoc, Peoria and Seneca-Cayuga Tribes of Oklahoma) “Resolution
Supporting Use of Team Name ‘Redskins’ by the Professional Football Team in
Washington, D.C.,” approving the name “as a positive image depicting Native
American culture and heritage.”156
In October 1991, the chairman of the Tulalip Tribes of Washington, Stanley
G. Jones Sr., sent a letter to Senator John McCain, then-Vice Chairman of the
Select Committee on Indian Affairs, stating that “[m]any of us are proud that sport
teams use us and our symbols to represent them. . . . We are not offended by the
Washington football team being called the Redskins.”157
The “Tribal Leader of the Soboba Band of Indians located in San Jacinto,
California,” Robert J. Salgado, sent a letter to Jack Kent Cooke, in January 1992,
stating that he had “been impressed [by] the manner in which the Washington
156 Resolution of Inter-Tribal Council, Inc. (1992), Respondent’s Notice of Reliance, Ex. 27 (TTABVue 142, pp. 28-29), Respondent’s Notice of Reliance, Ex. 28.2 (TTABVue 142, pp. 3233 (duplicate). See also letter from Floyd E. Leonard, Chief of the Miami Tribe of Oklahoma, to C. A. Buser (June 21, 1991) (explaining that the Miami Tribe voted to support and acknowledge its pride in the use of the name “Redskins” by Miami University in Oxford, Ohio), Respondent’s Notice of Reliance, Exhibit 28.7 (TTABVue 142, pp. 39-40). 157 Letter from Stan Jones Sr., Chairman, the Tulalip Tribes, to Sen. John McCain (Oct. 30, 1991), Respondent’s Notice of Reliance, Ex. 28.1 (TTABVue 142, pp. 30-31). See letter from Stanley G. Jones Sr., Chairman, the Tulalip Tribes, to Redskin Support Comm. (Aug. 31, 1992) (expressing no objection by the Tulalip Tribe to the use of the “Redskins” name), Respondent’s Notice of Reliance, Ex. 28.6 (TTABVue 142, p. 38).
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Redskins have portrayed the American Indian,” and further stating his support for the team.158
The chief of the Choctaw Nation of Oklahoma, Hollis E. Roberts, sent a letter to the Washington Redskins Communications Department in January 1992, which covered the history of the Choctaws and connected that history with the use of American Indian names and images by sports teams.159 Chief Roberts stated:
Sports teams traditionally adopt a namesake and image which they perceive as noble and powerful. The Washington Redskins is a team . . . that Indian people can be proud to be identified with.160 The chief concluded by expressing his support “of the Washington football team, the ‘Redskins.’”161 The Principal Chief of the Seminole Nation of Oklahoma, Jerry G. Haney, sent a letter to Jack Kent Cooke in January 1992, expressing that the use of the “Redskins” name by the Washington football team is a source of pride.162 The Vice President of the Pima-Maricopa Indian Community of Salt River in Scottsdale, Arizona, Merna L. Lewis, sent a letter to Ms. Jo Walter regarding the
158 Letter from Robert J. Salgado, Chairman, Soboba Band of Mission Indians, to Jack Kent Cooke (Jan. 17, 1992), Respondent’s Notice of Reliance, Ex. 28.3 (TTABVue 142, p. 34). 159 Letter from Hollis E. Roberts, Chief, Choctaw Nation of Okla., to Charlie Dayton, V.P., Wash. Redskins Communications Dep’t (Jan. 23, 1992), Respondent’s Notice of Reliance, Ex. 28.4 (TTABVue 142, pp. 35-36). 160 Id. (TTABVue 142, p. 36). 161 Id. 162 Letter from Jerry G. Haney, Principal Chief, Seminole Nation of Okla., to Jack Kent Cooke (Jan. 23, 1992), Respondent’s Notice of Reliance, Ex. 28.5 (TTABVue 142, p. 37).
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use of the name “Naperville Redskins” by a high school in Illinois.163 Ms. Lewis wrote that her Native American community did not object to the Naperville school using the name “Redskins” so long as it was used with honor and respect.
The principal chief of the Eastern Band of Cherokee Indians in North Carolina, Jonathan L. Taylor, also sent a letter to Ms. Jo Walter in July 1992, regarding the use of the name “Naperville Redskins.”164 Chief Taylor wrote that the use of the name “Redskins” by the school was a “great honor for all Native Americans.”165
A 1992 newspaper article reported that the Mattaponi tribe did not object to the use of the name “Redskins” by the Washington football team. The tribal chief of the Mattaponi of King William County, Virginia, Webster “Little Eagle” Custalow, is quoted as saying that his tribe did not “disapprove of that name at all. The only thing I’ve asked them to do is to wear the helmets proudly. There’s an Indian head dress on the helmet and I asked them to keep that helmet high and not rub it in the dirt.”166
The record also includes evidence regarding Native Americans using the word “redskins” in connection with their own sports teams:
163 Merna L. Lewis, V.P., Pima-Maricopa Indian Community (Ariz.), to Jo Walter (July 14, 1992), Respondent’s Notice of Reliance, Ex. 28.8 (TTABVue 142, p. 41). 164 Jonathan L. Taylor, Principal Chief, Eastern Band of Cherokee Indians, to Jo Walter (July 16, 1992), Respondent’s Notice of Reliance, Ex. 28. 9 (TTABVue 142, p. 42). 165 Id. 166 Associated Press, “NAACP Objects to ‘Redskins’; Chief Doesn’t,” N. Va. Daily, Aug. 5, 1992, Petitioners’ Notice of Reliance, Ex. 19 (TTABVue 48, p. 59).
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Cancellation No. 92046185 A sign at a Navajo Indian Reservation school: Red Mesa High School Home of the Redskins, with the photograph taken in 1989 and sent by Robert D. Kahn to Jack Kent Cooke on November 4, 1991;167 A sports article in the April 30, 2010 issue of the Seminole Tribune (Fla.), referencing the “Lady Redskins” as one of the teams involved in a tribal basketball tournament.168 Respondent also points out that its seventeenth draft pick in 1956 was Eagle
Day, who was part of the Cherokee tribe.169 Day began his career with the Washington Redskins in 1959, as reported in this Washington Daily News article:
When he arrived at training camp in July 1959, the Washington Daily News reported that “Eagle Day is an Indian who has always wanted to be a Redskin,”
167 Letter from Robert D. Kahn to Jack Kent Cooke (Nov. 4, 1991), Respondent’s Notice of Reliance, Ex. 33 (TTABVue 143, pp. 6-8). 168 Marcus Anthony Briggs-Cloud Dep. 67:20-68:14, 72:14-73:18, June 23, 2011 (TTABVue 121, pp. 73-74, 78-79); Briggs-Cloud Dep. Ex. 3 (Chris C. Jenkins, “Son, Daughter Celebrated in Memorial Tourneys,” Seminole Tribune (Fla.), Apr. 30, 2010, at 1C) (TTABVue 121, p. 24). We note this article is not from nor does it reference the relevant period. 169 “Redskins Sign Indian,” Washington Daily News, Mar. 10, 1959, at 37, Respondent’s Ex. 31.1 (TTABVue 143, p. 4).
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quoting Day as saying “I’m finally getting a chance to do what I wanted in the first
place—play for the Redskins.”170
Based on our review of the record within the confines of this narrow case and
taking into consideration the stipulations that all evidence deemed admissible in
Harjo is of record and all hearsay objections are waived to allow consideration of
documents for the truth of the matter asserted, 171 we find the following facts in the
two categories.
FINDINGS OF FACT
General Analysis of the Word172
1. The word REDSKIN on its face is and always has been a racial designation.173
2. The word REDSKINS is a plural of the word REDSKIN.174
3. The word REDSKIN on its face refers to the real or imagined skin color of Native
Americans.175
170 Tom Yorke, “An Indian Joins the Redskins,” Washington Daily News, July 27, 1959, Respondent’s Ex. 31.2 (TTABVue 143, p. 5). 171 Despite the waiver of hearsay objections, we only rely on the content of these documents to corroborate testimony and NCAI Resolution 93-11, and when various documents point to the same result to establish sufficient indicia of reliability. West Florida Seafood, Inc. v. Jet Restaurants, 31 F.3d 1122, 31 USPQ2d 1660, 1663 (Fed. Cir. 1994). 172 Although titled “General Analysis” this category includes evidence and findings of fact based on Native American viewpoints, i.e., the viewpoint of paramount concern under the applicable analysis. 173 This is not in dispute and is evident from the answer to the first part of the test, i.e., that REDSKINS retains the meaning Native American. However, it is also amply supported by the multitude of dictionary definitions in the record, including those set forth in the majority opinion. See also Barnhart Rept. p. 1 (TTABVue 129, p. 5). 174 This has been conceded and established by the record as part of the first prong of the test. 175 Barnhart Dep. p. 70-71 (TTABVue 159, p. 74); Barnhart Rept. (TTABVue 162, p. 21); Nunberg Dep. Ex. 14 (TTABVue 83, p. 118) Webster’s New Twentieth Century Dictionary of
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4. Racial slurs often refer to real or imagined physical differences.176
5. Dictionary usage labels signal that a word is not part of standard vocabulary.177
6. Before 1966 no dictionary in this record included a usage label for the term
REDSKIN.178
7. Beginning in 1966 and continuing to 1990, usage labels in dictionaries indicating
the term REDSKIN to be offensive, disparaging, contemptuous or not preferred,
first appear and then grow in number.179
the English Language Unabridged (2d ed. 1977) “so called from the reddish or coppery color of the skin.” This is not in dispute. Resp. Br. pp. 38-40. 176 Allen, Irving Lewis, Unkind Words: Ethnic Labeling from Redskin to WASP (Bergin & Garvey 1990) p. 18 (“Nearly half of all interracial slurs ...refer to real or imagined physical differences. ... Most references to physical differences are to skin color, which affirms what we have always known about the significance of color in human relations. Asian groups were called yellow this and that and Native Americans were called redskins, red men, and red devils.”) petitioners’ notice of reliance Ex. 57 (TTABVue 87, p. 20). See also Allen, Irving Lewis, The Language of Ethnic Conflict Social Organization and Lexical Culture (Columbia University Press 1983) p. 51 (Redskin listed as a disparaging slur for Native Americans), petitioner’s notice of reliance Ex. 1 (TTABVue 63, p. 41). In a deposition submitted by respondent, Richard Leslie Vaughn, director of communications for the Washington football team, presents an example that reference to skin color is disparaging. “Q. What is it about the word ‘darkie’ that causes you to believe that it refers to AfricanAmericans? A. The color of their skin. Q. Do you consider the word ‘darkie’ derogatory? A. Yes. Q. Do you consider it disparaging? Yes.” Vaughn Dep. pp. 148-149 (TTABVue 158, pp. 151-152). 177 Barnhart Rept. (TTABVue 162, p. 25). This is not in dispute. 178 Barnhart Rept. (TTABVue 162, p. 21). 179 Barnhart Rept. (TTABVue 162, p. 21). Regarding respondent’s attempt to weaken the usage labels by pointing to the qualifier “often,” as in “often offensive” indicating that it allows for contexts in which it would not be offensive, the usage labels for HEBE, KIKE GOOK, CHINK and NIGGER are all qualified by “usually,” yet it would be hard to imagine anyone feeling emboldened to adopt as a team name any one of these words based on the qualifier “usually.” Merriam-Webster’s Collegiate Dictionary (10th ed. 1998). The Board may take judicial notice of dictionary definitions. In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). See also Nunberg Dep. p. 343-344 (TTABVue 81 pp. 236-237) “As for the ‘often’ that is sometimes added as a hedge and is even added to words whose status has disparaging epithets is beyond a question like ‘nigger.’ That’s usually used merely to make
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8. From 1983 on, all dictionary entries in the Barnhart report include a usage label
indicating the term is offensive, disparaging, contemptuous or not preferred.180
9. The National Congress of American Indians (NCAI) was founded in 1944.181
10. The record shows that NCAI began advocating against use of respondent’s name
REDSKINS, in the 1960’s.182
11. The advocacy organization American Indian Movement (AIM) was founded in
1968 and its effort to rid sports teams of Indian names, including respondent’s
name REDSKINS, has been ongoing for decades.183
an exception of the ironic uses of the word often by members of the group to whom it’s applied.” 180 Barnhart Rept. (TTABVue 162, p. 26). Apart from respondent’s expert report, respondent points to a 1987 entry from the Oxford English Dictionary that does not have a usage label. However, the 1980 Oxford American Dictionary entry of record contains the usage label “contemptuous” and is obviously more probative on this point inasmuch as we are concerned about the meaning of language in the United States – not the English speaking world at large. (TTABVue 86, p. 76). Moreover, by 1989 even the Oxford English Dictionary added the usage label “not the preferred term.” (TTABVue 63, pp. 55-57). 181 Chase Dep. p. 34 (TTABVue 98, p. 40). 182 Lakota Times (September 16, 1992) (“The National Congress of American Indians has been battling against the racist use of Indians as mascots for decades. The battle has been uphill all the way because mainstream America does not see the term [Redskins] as offensive – because they are not American Indians. … Mr. Deloria who directed NCAI in the 1960’s and spoke out on the mascot issue then ... The grounds for cancellation of the federal registration include: The term ‘Redskin’ … is ... disparaging.”) TTABVue 71, p. 89. See also NCAI Sentinel “NCAI Wages War on Indian Image” (Winter-Spring 1969) (campaign to combat negative images and references to Native Americans). TTABVue 48, pp. 80-82. See also letter from William B. Welles and Charles B. Kusen to Mr. Pete Rozelle (April 25, 1972) (commenting on “movement to change the familiar titles of many teams in the sports world,” including the “Redskins”) (TTABVue 77, p. 20). 183 Letter from Clyde H. Bellecourt, National Director of AIM and William A. Means President of International Indian Treaty Council to Jack Kent Cooke (December 20, 1992) (TTABVue 63, p. 172). See also The Evening Star (Washington D.C. Wednesday January 19, 1972) “the New American Indian Movement is considering a suit against the Washington Redskins ... [a]s for the Washington Redskins, the movement suggests that ‘insult is added to injury’ when the Redskins are sometimes referred to as ‘the Skins.’”) TTABVue 77, p. 14; Star Tribune (November 1, 1991) (“The American Indian Movement
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12. Usage labels sometimes result from pressure groups trying to influence the
lexicographer.184
and others have for decades urged professional teams to drop Indian names … . Indian activist Russell Means even sued the Cleveland Indians in 1972.”) (TTABVue 71, p. 21, 3335).
184 Butters Report p. 5, (TTABVue 129, p. 41; 165 p. 8) (“Usage labels are subject to sociopolitical pressure. … [W]hat constitutes a significant-enough semantic change to warrant the revision of a dictionary entry is often a judgment call, one which is furthermore highly subject to overt and covert sociopolitical pressures, especially where possible changes in connotation and usage are concerned. ... ‘Quite simply, it is a concerted attempt by various pressure groups to force dictionary editors to … abandon the traditions of setting down the language as it is actually used, however, disagreeable, regrettable, or uncongenial the use.’”) p. 5-6, quoting Landau, Sydney, Dictionaries The Art and Craft of Lexicography (1984)). Barnhart Dep. p. 22 (“But some people that are in lexicography have been known to be less stalwart and have caved in to suggestions from non-editorial sources.”). (TTABVue 159, p. 25), see also Barnhart Dep. pp. 80-82 (TTABVue 159, pp. 82-83) and Barnhart 1997 Dep. pp. 200-201; 210-211 (TTABVue 161, pp. 20; 23). See also Nunberg Dep. pp. 331-339 (TTABVue 81, pp. 224-232).
Thus, as the referenced minority asserts itself through pressure groups, the general population “abandon[s] the traditions of setting down the language” as it uses the word. This is amply demonstrated by the record where the use of REDSKIN or REDSKINS is rampantly used in literature, newspapers and movies by the mainstream prior to the 1960’s to refer to Native Americans, and severely drops off, except as to the football team, after the 1960’s. Nunberg Rept. (TTABVue 108, p. 107), (TTABVue 83, p. 85). See also Butters Dep. Exh. 10 “How to Hate Thy Neighbor A Guide to Racist Maledicta Maledicta II” p. 169 (TTABVue 171, p. 18) (“Redskin Any Native American, after the red warpaint they traditionally wore when attacking white settlers. Formerly insulting, now seldom used except in connection with the Washington Redskins football team.”) Mr. Barnhart’s search of newspapers and other publications from 1969-1996 revealed only 2 percent of the uses of redskin were references to Native Americans. Barnhart Rept. (TTABVue 129, pp. 7, 17). As noted by Mr. Barnhart “In recent years the sensitivities of these people [Native Americans] have caused some speakers of English to adjust their usage of some of these terms accordingly.” (emphasis added) Barnhart Rept. (TTABVue 129, p. 15). He also acknowledges the trend in usage labels from “1965 to the present (1992).” “It is clear that in the last 18 years the opinions of the editors of dictionaries concerning the current usage of redskin is not uniformly agreed upon. For the first time since 1872 (when dictionaries began entering the term redskin), editors have begun to report some change in its use.” Id. Barnhart concludes the term redskin “is acceptable in both formal and informal speech or writing of educated people” yet his own research demonstrates that it is not so used, at least in written form from 1969-1996.
Looking at Mr. Barnhart’s research in combination with Nunberg’s research, Mr. Barnhart’s unequivocal conclusion is in conflict with the underlying data. Similarly, Dr. Butter’s unequivocal conclusion that the term redskin is a “minor variant” for American Indian is contradicted by his acknowledgement of dictionaries labeling it as offensive
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13. From the mid-1960’s to 1996, the word ‘redskin(s)’ has dropped out of written
and most spoken language as a reference to Native Americans.185
14. From at least the mid-1960’s to 1996, the words ‘Native American,’ ‘Indian,’ and
‘American Indian’ are used in spoken and written language to refer to Native
Americans.186
15. The usage labels appear and the use of the word redskin(s) disappears because
it is increasingly recognized that the term is offensive and disparaging during the
relevant time period as Native Americans raise awareness about the offensive
nature of the term redskin(s).
Native American Objection to Use of the Word Redskins for Football Teams
16. Since 1994, Jo Ann Chase has been the Executive Director of the NCAI.187
17. The membership of the NCAI consists of Native American tribes and
individuals.188
during the relevant time period. Butters Dep. (TTABVue 163, pp. 10, 20); Butters Rept. (TTABVue 129, p. 51). Because the conclusions of Mr. Barnhart and Dr. Butters are in direct conflict with the usage labels and the disappearance of the term from American English, since the 1960’s, the time period with which we are concerned, we give their ultimate conclusions little weight. 185 This is not in dispute see Pro-Football, 68 USPQ2d at 1234. Nunberg 2/18/97 Dep. (TTABVue 81, pp. 200-201); Barnhart Dep. (TTABVue 159, p. 72). The trial record includes evidence on this point up until 1996; the Harjo trial period ended on June 3, 1997. ProFootball, Inc. v. Harjo, 45 USPQ2d 1789 (TTAB 1998). Respondent points to Mr. Butter’s statement that the appearance of the term “redskins” in connection with its team in newspaper sport pages indicates that “they” (presumably the editors) find no pejorative connotations what[so]ever to the word.” Pet’rs’ Br. p. 28 quoting Butters Rebuttal Report (TTABVue 151). However, the fact that people other than the referenced group continue to use the term in one last context is not compelling evidence that the referenced group does not find it to be disparaging. 186 Id. 187 Chase Dep. p. 4 (TTABVue 98, p. 10).
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18. Member tribes, through resolution, designate a delegate for the purpose of representing them in NCAI and voting on NCAI resolutions. 189 19. The Executive Council of NCAI consists of the official representative delegates of the member tribes of the organization.190 20. The Executive Council is the decision-making entity for the organization. 191 21. The member tribes vote on resolutions by voice vote which are usually unanimous.192 22. The quorum for the Executive Council is one third of the member tribes of the organization.193 23. The delegates attending the Executive Council vote on behalf of the tribes. 194 24. Resolutions are read out before the membership prior to the vote. 195 25. Resolutions are the policy of the NCAI.196 26. In 1996, 206 tribes were NCAI members.197 27. Approximately 150 tribes were members in 1993.198
188 NCAI By-Laws (TTABVue 83, p. 42). See also Chase Dep. p. 28, Ex. 108 (TTABVue 98, p. 34). 189 Chase Dep. p. 30. 190 Chase Dep. p. 30. 191 Chase Dep. p. 30. 192 Chase Dep. p. 42. 193 Chase Dep. p. 43, 44; By-Laws. 194 Chase Dep. p. 55. 195 Chase Dep. p. 62. 196 Chase Dep. p. 47. 197 Chase Dep. p. 54.
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28. On January 18-19, 1993 NCAI passed resolution 93-11 which reads in pertinent
part:
NCAI is the oldest and largest intertribal organization nationwide representative of and advocate for national, regional, and local tribal concerns; …
[T]he term REDSKINS is not and has never been one of honor or respect, but instead, it has always been and continues to be a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging and racist designation for Native American’s [sic] and
[T]he use of the registered service marks identified in Exhibit B to this resolution by the Washington Redskins football organization, has always been and continues to be offensive, disparaging, scandalous, and damaging to Native Americans.199
198 “The National Congress of American Indians, representing approximately 150 tribal governments, calls it a racial slur.” Statement to the [Miami] University Senate, Dr. Britton Harwood 1993 Minutes from University Senate April 5, 1993, (TTABVue 95, p. 19). See also The Voice (April 27, 1993) “Harwood Addresses U. Senate on ‘Redskin’ Issue” (“The National Congress of American Indians, representing approximately 150 tribal governments, calls it a racial slur.”) (TTABVue 95, p. 29); letter from Dale Pullen to Charlie Drayton wherein it is stated that NCAI represented 30 percent of the Native Americans in 1992. (TTABVue 98, at 111, TTABVue 142, p. 43) (shown as the Deloria Exhibit 35 also presented as exhibit 41 in the Chase deposition). In 1995, there were approximately 500 recognized tribes in the United States; 150 would have been about one third in 1993. 1995 Federal Register, respondent’s Notice of Reliance (TTABVue 151, pp. 57-63). Ms. Chase also testified that there were between 100 – 400 members at the time the resolution was taken. Chase Dep. p. 54. See also 1992 WTOP telephone survey of tribal leaders submitted by respondent, shows approximately 30 percent of tribal leaders found the name offensive and wanted it changed. John Kent Cooke Dep., Ex. 6 (TTABVue 149, pp. 43-68; TTABVue 156, pp. 11-38).
By contrast, the 1992 letters from “tribal leaders” submitted by respondent are purportedly from 6 tribes and the Inter-tribal Council resolution represents 5 tribes in Oklahoma. In addition, the letter from Mr. Roberts explicitly only references his personal belief and not the tribe’s collective opinion. (TTABVue 142, p. 36) (“If I were opposed to the football team name… The Washington Redskins is a team I admire … Thank you for this opportunity to express my views…”).
199 National Congress of American Indians Est. 1944 Resolution No. Ex DC-93-11, (TTABVue 63, p. 71).
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29. This resolution represents the view of the member tribes that the word
REDSKINS has always been disparaging as used for the name of a football team,
this includes 1967-1990.200
30. The president of NCAI is elected by the membership.201
31. In 1972 the president of NCAI, as a representative of NCAI, met with Edward
Bennett Williams (then owner of the team) requesting that the team cease use of
the name REDSKINS because it is disparaging.202
200 At oral hearing, in arguing that petitioners have not satisfied their burden by a preponderance of the evidence, respondent’s counsel noted the absence of resolutions from 1967 to 1990. Obviously, contemporaneous resolutions, from NCAI or other organizations or tribal bodies, would be significant evidence; however, given the evidence of record that corroborates that the views of past perception expressed in 1993 were also held in 1967, 1972, 1974, 1978 and 1990, we find the evidence of record to be sufficient. 201 NCAI By-laws (TTABVue 83, p. 43). 202 Gross Dep. pp. 19-20 (TTABVue 79, pp. 181-182). Letter from Edward Bennett Williams to Commissioner Rozelle (March 30, 1972) (“I met with a delegation of American Indian leaders. … Among those who met with me yesterday were … Leon F. Cook, President, National Congress of American Indians.”) (TTABVue 105, p. 81); Gross Dep. pp. 19-20 (TTABVue 79, pp. 181-182). See also Washington Daily News (Thursday March 30, 1972) (From an article discussing the meeting with Edward Bennett Williams the following excerpt “After Petite’s fist shaking speech, Williams closed this first meeting with the American Indians who claim his team nickname, ‘Redskins’ is a racial slur. The eleven Indian representatives included ... Leon Cook, president of the National Congress of American Indians which claims a membership of 300,000; Dennis J. Banks, national chairman of the American Indian Movement.” (emphasis added) (TTABVue 48, p. 33); The Washington Post (Thursday March 30, 1972) (“A DELEGATION OF 11 people representing a variety of Indian organizations ... Among the group ... requesting that ‘the derogatory racial epithet ‘Redskins’’ be banished from the Washington sports scene were ...Leon Cook, president of the National Congress of American Indians which claims a membership of 350,000 Indians, according to the protesting group’s informal leader, Harold Gross, an attorney for another Indian organization.”) (emphasis added) (TTABVue 48, pp. 85-86). Harold Gross testified that he worked for NCAI in 1969 and would have first-hand knowledge as to the membership in that time period. Gross Dep. p. 37 (TTABVue 79, p. 199).
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32. In 1972, the president of NCAI, along with others, requested that “the
derogatory racial epithet “Redskins” be withdrawn as a team nickname… .”203
33. In 1972, NCAI represented approximately 300,000 Native Americans out of
approximately 792,730.204
34. NCAI has been in existence since 1944 and between 1972 and 1993, a span of
twenty years, the record shows that NCAI has represented approximately one third
of Native Americans. It is reasonable to infer that NCAI represented approximately
one third of Native Americans merely five years earlier in 1967.
35. NCAI objected to respondent’s use of the word REDSKINS in the late 1960’s.205
36. NCAI objected to respondent’s use of the word REDSKINS in 1972.206
37. NCAI objected to respondent’s use of the word REDSKINS in 1988.207
38. NCAI objected to respondent’s use of the word REDSKINS in 1992.208
203 “Recommendations to the Washington, D.C. Professional Football Team” (TTABVue 77, p. 9). Some of the others included Ron Aquilar, President of the Washington Chapter National Indian Youth Council. Mr. Aquilar, in his capacity as President of the Washington Chapter National Indian Youth Council sent a letter to the “Washington Redskin Football Team” objecting to the team name REDSKINS. (“I don’t see why it is so hard for people to understand why the word ‘Redskin’ is a racial slur, therefore degrading. This fact is established by the everyday racism towards my people ... Regardless of whether the word insults ten of us or ten thousand of us that is not the point.”) (TTABVue 77, p. 17). 204 Washington Daily News, supra, The Washington Post, supra; Gross Dep., supra. See also letter from Billy Kevin Gover, a “Comanche Indian from Oklahoma,” dated July 18, 1972, also indicating 300,000 Native Americans object to the name REDSKINS. (TTABVue 77, p. 6). “Historical Census Statistics on Population Totals by Race,” supra. 205 Lakota Times (TTABVue 71, p. 89). See also NCAI Sentinel (1969) (TTABVue 48, pp. 8082). 206 Gross Dep. pp. 19-20 (TTABVue 79, pp. 181-182). 207 Michigan Civil Rights Commission Report (October 1988) (“The National Congress of American Indians, the oldest and largest national Indian group in the U.S. also supports this organization’s [Fan’s Against Indian Racism] efforts to have the Washington team’s name changed.”) (TTABVue 91, p. 101).
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39. NCAI objected to respondent’s use of the word REDSKINS in 1993.
CONCLUSIONS
As noted above, as was found in the Harjo case, both by the Board and the
District Court, and conceded by respondent, “the meaning of the matter in
question,” retains the core meaning Native American when used as the name of respondent’s sports team. More specifically, the term “redskin(s)” as used by
respondent in its registered marks when used in connection with professional
football retains the “likely meaning” Native Americans. Much of respondent’s
evidence is directed to the first part of the test. Respondent’s argument regarding
“secondary meaning” in the sense that it has “a secondary or alternate meaning”
denoting a football team, is not persuasive in that the “secondary meaning” has not
stripped the word “redskins” of its “ethnic” meaning.209 See Squaw Valley, at 1282
(emphasis added) (Squaw Valley ski resort meaning of squaw is “likely meaning” “rather than the meaning of Native American woman or wife”).210
We turn then to the second question, “was the meaning one that may have
disparaged” a substantial composite, which need not be a majority, of Native
Americans, at the times of the registrations. The crux of this case is whether or not
this record supports petitioners’ contention that the answer to that question is yes.
208 Lakota Times (March 4, 1992) (“D.C. council to consider ‘Redskins’ protest”) (TTABVue 71, p. 71); Lakota Times (September 16, 1992) (“Action taken to chop ‘Redskins’ trademark”) (TTABVue 71, p. 89); The Circle (October 1992) (“National Coalition Challenges Federal Trademark Registrations”). 209 Pet'rs' Br. p. 26 n. 94. 210 We further note that there was no evidence of use of Native American indicia in connection with the term “squaw” when used with ski-related goods. Squaw Valley, 80 USPQ2d at 1279.
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Respondent contends that it does not and characterizes the record as, at most,
showing a handful of individuals (the Harjo petitioners, the current petitioners, the
letter writers, a few individuals from various organizations) who have their own
individual opinion. Such a characterization, however, ignores, and is contradicted
by the substantial evidence of record.
NCAI Resolution 93-11 represents the views of a substantial composite of
Native Americans. NCAI consists of member tribes from across the United States
and they voice their collective opinion through the Executive Council by resolutions.
A resolution from the oldest Native American organization composed of tribes from
across the United States and structured in a manner to represent the collective
opinion of its membership through resolutions is strong evidence of the views of
Native Americans.211 The NCAI members throughout the relevant time period
represent approximately 30 percent of Native Americans.212
211 This type of evidence is particularly useful here where the claim pertains to the views of a group rather than just an individual opinion. The dissent points to Native American use of Indian imagery for sports teams. However, the evidence of various instances where predominantly Native American schools or groups have adopted other designs and/or words referencing Native Americans and/or Native American culture in connection with the schools or sports teams, has no relevance to the use of the word “Redskins.” E.g., Haskell Indian Nations University displaying an Indian head logo. The title of the newspaper article relied on by the dissent, in fact, supports the majority position: “‘Chop’ is spreading, but Indians Disagree on What is Offensive Most Decry ‘Redskins’ Nickname.” Star Tribune (Minn.), Nov. 1, 1991, at 2B, petitioners’ Notice of Reliance Ex. 20 (TTABVue 71, pp. 21, 33-35). In any event, the fact that differences of opinion exist within the group does not obviate a claim of disparagement. Heeb, 89 USPQ2d at 1077 (“Although some in the community may not find it disparaging, as noted above, the evidence shows that there is a substantial component of those in the named group who do.”). 212 As discussed supra, the record clearly points to specific numbers throughout the time period. Therefore, the dissent’s statement at being “astound[ed] that the petitioners did not submit any evidence regarding the Native American population during the relevant time
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The statement about Native Americans’ past views of the word REDSKINS in
the 1993 resolution is corroborated by the meeting held with the former owner
Edward Bennett Williams in 1972. At the meeting, the president of NCAI at the
time, Mr. Leon Cook, represented that Native Americans find the term REDSKINS
to be a racial slur. Respondent characterizes Mr. Cook’s views as solely his own and
opines that he merely represented himself at this meeting. The president of NCAI
is elected by the membership to represent them. It is unreasonable and illogical to
characterize the views regarding something of importance to the members of an
organization as only belonging to that individual president where he is attending in
his capacity as the president of that organization. It is equally unreasonable and
illogical to reduce Mr. Cook’s representative capacity in such a manner. His
attendance at this meeting was, not surprisingly, referenced as representing an
Indian organization, both by the press and by Mr. Williams himself.213
The trend in dictionary usage labels also corroborates the time frame of
objections from Native Americans starting in the late sixties and continuing
frame” and characterization of the evidence as “a house of cards,” is simply incorrect. Moreover, taking judicial notice of the U.S. Census population statistics did not require any “gyrations.” As noted earlier, while more evidence would provide more support, the existing record shows, by a preponderance of the evidence, that a substantial composite of the referenced group found the term disparaging during the relevant time period when used in connection with respondent’s services and respondent has not rebutted that showing by providing a handful of examples of some members of the referenced group holding a different opinion. Heeb, 89 USPQ2d at 1070. See also West Fla. Seafood, Inc. v. Jet Restaurants, 31 USPQ2d at 1663 (Board should look at evidence as a whole to recognize “clear interrelationships existing between the several pieces of evidence submitted.”) 213 Mr. Williams appropriately refers to them as “a delegation of American Indian leaders….” Letter from Edward Bennett Williams to Commissioner Pete Rozelle (March 30, 1972), (TTABVue 105, p. 81). See also Washington Post (March 30, 1972) (TTABVue 48, pp. 85-86).
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through the nineties as lexicographers begin and finally uniformly label the term as
“offensive” or “disparaging.”214 The recognition that this racial designation based on
skin color is disparaging to Native Americans is also demonstrated by the near
complete drop-off in usage of “redskins” as a reference to Native Americans
beginning in the 1960’s.
The record establishes that, at a minimum, approximately thirty percent of
Native Americans found the term REDSKINS used in connection with respondent’s
services to be disparaging at all times including 1967, 1972, 1974, 1978 and 1990.
Section 2(a) prohibits registration of matter that disparages a substantial
composite, which need not be a majority, of the referenced group. Thirty percent is
without doubt a substantial composite. To determine otherwise means it is
acceptable to subject to disparagement 1 out of every 3 individuals, or as in this
case approximately 626,095 out of 1,878,285 in 1990.215 There is nothing in the
Trademark Act, which expressly prohibits registration of disparaging terms, or in
214 See Chicago Tribune (May 21, 1992) (“In pros or preps, ‘Redskins’ a slur” … “And let there be no doubt that ‘redskin’ is a vile word. Contemporary dictionaries acknowledge it as a disparaging and offensive slang term”) (TTABVue 71, p. 82). 215 “Historical Census Statistics on Population Totals by Race,” supra. In this regard we note that, in commenting on the results of the WTOP survey where 28 percent of tribal leaders voiced objection to the word REDSKINS for the name of a football team, Mr. Vaughn, as an employee of respondent, voiced the opinion that it was a “favorative [sic] response to the name ‘the Redskins’ being used by the Washington football team among citizens of this area and also among Native Americans.” Vaughn Dep. p. 70 (TTABVue 158, p. 73). This indicates an acceptance by respondent of the possibility of disparaging approximately one third of Native Americans. Respondent’s argument, contrary to established precedent, that a substantial composite should be a majority of the referenced group reflects this attitude, i.e., that it is acceptable to disparage up to forty-nine percent of Native Americans. Resp. Br. p. 21. This is clearly in direct contradiction to the legal test enunciated by our primary reviewing court and as set forth in our pretrial order.
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its legislative history, to permit that level of disparagement of a group and,
therefore, we find this showing of thirty percent to be more than substantial.
Respondent has introduced evidence that some in the Native American
community do not find the term “Redskin” disparaging when it is used in connection
with professional football. While this may reveal differing opinions within the
community, it does not negate the opinions of those who find it disparaging. The
ultimate decision is based on whether the evidence shows that a substantial
composite of the Native American population found the term “Redskins” to be
disparaging when the respective registrations issued. Heeb Media LLC, 89 USPQ2d
at 1077. Therefore, once a substantial composite has been found, the mere
existence of differing opinions cannot change the conclusion.
In view of the above, petitioners have shown by a preponderance of the
evidence that a substantial composite of Native Americans found the term
REDSKINS to be disparaging in connection with respondent’s services during the
relevant time frame of 1967-1990. Accordingly, the six registrations must be
cancelled as required under Sections 2(a) and 14(3) of the Trademark Act. 216
216 The District Court also expressed concern that the Board was silent as to “whether it paid cautious heed to the admonition that in proceedings where a party has waited longer to bring a cancellation petition, that party has a very serious burden of making its case, even though the standard of proof is not technically different and remains ‘a preponderance of the evidence.’” Pro-Football, Inc. v. Harjo, 68 USPQ2d at 1246. As stated in Rockwood Chocolate Co., Inc. v. Hoffman Candy Co., 152 USPQ at 601, the Board exercises due caution in making a determination to cancel a registration, in particular, registrations that have existed for decades. We note, however, that although the first attempt to cancel the registrations did not occur until 1992, the out of court challenge to use of the marks in the six registrations, based on this record, has been ongoing for several decades. Respondent was not blindsided by either Harjo or this proceeding, but merely faces the inevitable use by petitioners of a predictable legal option, employed after requests and protests did not result in discontinuation of the use and registration of the term REDSKINS.
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LACHES DEFENSE In Harjo v. Pro Football, Inc., 30 USPQ2d 1828, the Board held that respondent’s laches defense was not applicable because there was a public policy interest at stake rather than just the petitioners’ personal interest.
[T]here exists a broader interest – an interest beyond the personal interest being asserted by the present petitioners – in preventing a party from receiving the benefits of registration where a trial might show that respondent’s marks hold a substantial segment of society up to public ridicule, [and] we will not deny petitioner the right to attempt to make their case by allowing respondent’s equitable defenses [laches]. Id. at 1831. On appeal, however, the U.S. District Court for the District of Columbia reversed the Board and held that the Trademark Act does not unequivocally bar respondent’s laches defense and permitted respondent to assert laches as an affirmative defense. Pro-Football, Inc. v. Harjo, 57 USPQ2d at 1145, aff’d, 75 USPQ2d at 1527. Nevertheless, the District Court noted that the applicability of laches “is dependent upon the equities of the factual scenarios within which it is raised.” 57 USPQ2d at 1145. In the order issued in this case on May 31, 2011, the Board stated that “[b]ecause … this cancellation proceeding is essentially a relitigation of what transpired in the Harjo case before the Board, we will follow the precedent of the D.C. Circuit Court of Appeals in Pro-Football, Inc. v. Harjo, 75 USPQ2d at 1527 in allowing the defense of laches in this case … and to the extent
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that petitioners maintain that laches does not provide a defense to a disparagement claim, this issue is preserved for appeal.”217
The America Invents Act, enacted in September 2011, changed the venue for appeals to District Court from USPTO inter partes proceedings to the U.S. District Court for the Eastern District of Virginia from the U.S. District Court of the District of Columbia. See Pub. L. No. 112-29 § 9(a), 125 Stat. 284 (2011) (to be codified at 15 U.S.C. § 1071(b)(4)). Accordingly, subsequent judicial review of this dispute, if any, will occur either in the U.S. District Court for the Eastern District of Virginia in the Fourth Circuit or in the Court of Appeals for the Federal Circuit, but not in the D.C. Circuit. In view thereof, petitioners filed a motion to reconsider the legal standard for laches in light of the America Invents Act.218
Although the Board earlier ordered that “any motion or brief including a reargument of a previously decided issue in this proceeding will be deemed to be a nonconforming brief and will be given no consideration,”219 and specified that the decision in the May 31, 2011 Order regarding laches was a final decision on the applicability of the defense, we find that the passage of the America Invents Act sufficiently changes the circumstances in this case so as to justify revisiting the issue.
We hold that laches does not apply to a disparagement claim where the disparagement pertains to a group of which the individual plaintiff or plaintiffs
217 Board’s May 31, 2011 Order, p. 12 n.6 (TTABVue 40) (internal quotations omitted). 218 TTABVue 178. 219 May 5, 2011 Order, p. 4 (TTABVue 39).
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simply comprise one or more members. First, laches is an equitable defense. A.C. Aukerman Co. v. R. L. Chaides Constr. Co., 960 F.2d 1020, 22 USPQ2d 1321, 1328 (Fed. Cir. 1992) (en banc). It is difficult to justify a balancing of equities where a registrant’s financial interest is weighed against human dignity. To apply laches to this type of claim contemplates the retention on the register of a mark determined by the Board to be a racial slur, in blatant violation of the Trademark Act’s prohibition against registration of such matter, merely because an individual plaintiff “unreasonably delayed” in filing a petition to cancel. For example, if Reg. No. 217,067, renewed in 1946 for twenty years, i.e., until 1966, for the mark NIGGER BABY BRAND for oranges and grapefruit were still active, individual members of the group referenced by such matter would be barred from seeking cancellation if they “unreasonably delayed” in seeking such relief.220 We add that the decision of the Court of Appeals for the District of Columbia Circuit, even though it countenanced application of laches in the Harjo decision, actually provides support for not applying the doctrine in cases such as this. If plaintiffs are created every day as individual members of the referenced group mature to age 18, the laches defense will never yield the registrant of a racial slur the repose it seeks.221
Second, courts and the Board have routinely held that where there is a broader public policy concern at issue, the equitable defense of laches does not apply. See Ultra-White Co. v. Johnson Chem. Indus., Inc., 465 F.2d 891, 175 USPQ
220 TTABVue 61, p. 38. 221 As succinctly expressed in Ms. Whitehead’s 1993 letter, this is an issue that “will not go away.” Petitioners’ Notice of Reliance Ex 5 (TTABVue 67, p. 130).
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166, 167 (CCPA 1972) (public interest in preventing likelihood of confusion prevails over a laches defense); Linville v. Rivard, 41 USPQ2d 1731, 1733 n. 5 (TTAB 1997), aff’d on other grounds, 133 F.3d 1446, 45 USPQ 1374 (Fed. Cir. 1998) (laches is unavailable against abandonment); Bausch & Lomb, Inc. v. Leupold & Stevens Inc., 1 USPQ2d 1497, 1499 (TTAB 1986) (laches is not available against a claim of descriptiveness or fraud); Int’l Assn. of Fire Chiefs, Inc. v. H. Marvin Ginn Corp., 225 USPQ 940, 947 (TTAB 1985), rev’d on other grounds, 782 F.2d 987, 228 USPQ 528 (Fed. Cir. 1986) (laches is not available where the petition to cancel is based on genericness of the registered matter because it would frustrate Section 14(c) of the Trademark Act that a registered mark may be cancelled at any time on the ground that it is generic); W.D. Byron & Sons, Inc. v. Stein Bros. Mfg. Co., 146 USPQ 313, 316 (TTAB 1965), aff’d, 377 F.2d 1001, 153 USPQ 749 (CCPA 1967) (“laches is not available to a defendant in a proceeding wherein, as here, the adverse party is claiming in essence that the mark in question inherently cannot function as a trademark” because “it is within the public interest to have registrations which are void ab initio stricken from the register and this interest or concern cannot be waived by the inaction of a single person or concern, no matter how long the delay persists.”); Midwest Plastic Fabricators, Inc. v. Underwriters Laboratories, Inc., 5 USPQ2d 1067, 1069 (TTAB 1987) (laches does not apply against a claim that respondent does not control the use of a certification mark because of the public interest in making sure that certification marks are properly controlled); compare Bridgestone/Firestone Research Inc. v. Auto. Club, 245 F.3d 1359, 58 USPQ2d 1460,
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1463-64 (Fed. Cir. 2001) (laches may be an affirmative defense against a Section 2(a) false suggestion of a connection claim because it is designed to protect a single person or institution from exploitation of their persona, not to protect the public or a broader group).
In this case, it cannot be disputed that there exists a broader public interest than that of the individual petitioners in preventing respondent from receiving the benefits of registration because respondent’s marks may have disparaged a substantial composite of Native Americans at the time. The fact that this claim falls within the category of claims that pertain to a broader public interest is made clear by the elements of the claim that plaintiffs must prove, i.e., that a substantial composite of the referenced group find the term to be disparaging. Thus, there is an overriding public interest in removing from the register marks that are disparaging to a segment of the population beyond the individual petitioners.
While the Fourth Circuit has not addressed whether laches applies to a claim that a term disparages a substantial composite of an ethnic or cultural group, the decisions of the Fourth Circuit prohibiting laches when confusion is inevitable suggest that the Fourth Circuit would prohibit the affirmative defense of laches in this case. See Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 38 USPQ2d 1449, 1453 (4th Cir. 1996) (“in consideration of the public interest, estoppel by laches may not be invoked to deny injunctive relief if it is apparent that the infringing use is likely to cause confusion.”). In Sara Lee, the Fourth Circuit reversed the lower District Court because “the court did not consider the public interest in avoiding
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Cancellation No. 92046185 confusion.” Id.; see Lyons P’ship L.P. v. Morris Costumes Inc., 243 F.3d 789, 58 USPQ2d 1102, 1108 (4th Cir. 2001); Resorts of Pinehurst, Inc. v. Pinehurst Nat’l Corp., 148 F.3d 417, 47 USPQ2d 1465, 1469 (4th Cir. 1998) (“strong proof of likelihood of confusion—indeed, actual confusion—trumps the defenses of laches and acquiescence.”).
However, if it was held in any appeal from this decision that the doctrine were to apply, to prevail on its laches defense, respondent must prove that there was undue or unreasonable delay by each of the petitioners in filing the petition for cancellation, and prejudice to respondent resulting from the delay. Bridgestone/Firestone v. Auto. Club, 58 USPQ2d at 1462; see also A.C. Aukerman Co., 22 USPQ2d at 1328) (there are two elements to laches: (i) unreasonable and inexcusable delay and (ii) prejudice or injury to the defendant). The application of laches depends on a balancing of the length of the delay and the seriousness of the prejudice with a focus on the reasonableness of the delay. Id. at 1329.
On this record, we find that respondent has not shown (1) that any one of the plaintiffs has unreasonably delayed in bringing the petition to cancel, in view of the pending Harjo litigation because the pendency of that case in court excused inaction; (2) that the 11 and 15 month delays by plaintiffs Tsotigh and Pappan were inexcusable or unreasonable; or (3) that is has been prejudiced, i.e., that there has been economic prejudice due to the delay.
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Amanda Blackhorse turned 18 on February 20, 2000.222 Phillip Martin Gover turned 18 on October 1, 2000.223 Courtney Tsotigh turned 18 on August 22, 2005.224 Marcus Briggs-Cloud turned 18 on December 31, 2001.225 Jillian Pappan turned 18 on May 9, 2005.226 The pending Harjo litigation provided excusable delay at least until June 2008, i.e., for the entire period that case was pending, until the District Court issued its final opinion on the issue of laches as to one plaintiff.227 In 2005, the D.C. Circuit retained jurisdiction over the case, including the pending appeal of the decision on the disparagement claim, and remanded the case to the District Court to apply the defense of laches, incorporating the age of majority requirement, to one plaintiff. Pro-Football Inc. v. Harjo, 415 F.3d 44, 75 USPQ2d 1525, 1529 (D.C. Cir. 2005); Pro-Football Inc. v. Harjo, 567 F. Supp. 2d 46, 87 USPQ2d 1891, 1893 (D.D.C. 2008). However, the appeal of the disparagement claim was never addressed by the D.C. Circuit apparently because it was “overshadowed by the defense of laches.” Pro-Football v. Harjo, 565 F.3d 880, 90 USPQ2d 1593, 1594 (D.C. Cir. 2009). After the District Court found laches applied to the remaining plaintiff, that decision was appealed and the D.C. Circuit narrowed its decision to only that issue.
222 Blackhorse Dep. 7:16-18 (TTABVue 122, p. 15). 223 Gover Dep. 11:10-12 (TTABVue 120, p. 17). 224 Tsotigh Dep. 23:2-18 (TTABVue 115, p. 29). 225 Briggs-Cloud Dep. 41:5-6 (TTABVue 110, p. 47). 226 Pappan Dep., p. 80:20-22 (TTABVue 112, p. 84). 227 As discussed supra, the District Court had earlier found laches as to all the Harjo plaintiffs, but the D.C. Circuit remanded for further consideration as to one plaintiff.
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Notwithstanding the pending Harjo litigation, Pappan and Tsotigh were young adults and were entitled to assess the situation and determine whether it was in their best interest to file the petition for cancellation and then act in accordance with that assessment. Respondent has shown nothing more than a minimal delay in seeking cancellation. In this regard, respondent has not cited, nor have we found, any cases supporting such a minimal delay as being sufficient to support laches. See Piper Aircraft Corp. v. Wag-Aero, Inc., 741 F.2d 925, 223 USPQ 202, 207 (7th Cir. 1984) (“We note that two years has rarely, if ever, been held to be a delay of sufficient length to establish laches.”).
As of 1999, when the Board issued its decision in Harjo to cancel the registrations, the status of those registrations was in question up until, at least, the District Court’s decision on remand in 2008. Throughout this time, as the record demonstrates, respondent continued to invest and build its brand. Respondent’s evidence of purported economic prejudice covers the alleged delay period 20002006/7 which is concurrent with the pending Harjo litigation. Thus, it is impossible to distinguish the possible monetary or investment loss that might have accompanied ultimately losing the Harjo case from losses that might be incurred as a result of ultimately losing the subsequent Blackhorse case filed during the pendency of the Harjo litigation. Clearly respondent was not deterred by Harjo from investing in its brand, and an adverse decision in the present litigation would not have prevented respondent’s loss of monetary investments had the current plaintiffs brought their suit earlier, inasmuch as it still would, of necessity, have
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been after Harjo began in order for them to reach the age of majority. While specific evidence of reliance is not required to show prejudice, there must be some nexus between a delay in filing the suit and the expenditures. A.C. Aukerman Co. v. R. L. Chaides Construction Co., 22 USPQ2d at 1329. There is nothing in the record to indicate that respondent’s business decisions regarding investment in its brand and marks has been influenced in any way by the pendency of this cancellation proceeding.
In view of the above, respondent’s invocation of the laches defense fails. Decision: The petition for cancellation is granted.
Bergsman, Administrative Trademark Judge, dissenting: I respectfully dissent from the majority’s decision to grant the petition on the
claim of disparagement because the dictionary evidence relied upon by the majority is inconclusive and there is no reliable evidence to corroborate the membership of National Council of American Indians.
To be clear, this case is not about the controversy, currently playing out in the media, over whether the term “redskins,” as the name of Washington’s professional football team, is disparaging to Native Americans today. The provisions of the statute under which the Board must decide this case – §§ 2(a) and 14(3) of the Trademark Act, 15 U.S.C. §§ 1052(a) and 1064(3) – require us to answer a much narrower, legal question: whether the evidence made of record in this case establishes that the term “redskins” was disparaging to a substantial composite of
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Native Americans at the time each of the challenged registrations issued.228 See generally Consorzio del Proscuitto di Parma v. Parma Sausage Prods., Inc., 23 USPQ2d 1894, 1898-99 (TTAB 1992) (discussing the language of Lanham Act § 14(3) and explaining that the “registration was obtained” language Congress used to specify when a registration for a mark may be cancelled under the enumerated statutory provisions, such as § 2(a), “shows an intent that only if it should not have issued in the first place should a registration more than five years old be cancelled”).
The new petitioners here have filed a petition to cancel the same registrations on one of the same grounds asserted in the Harjo cancellation proceeding originally filed with the Board. Not only is this claim the same as one in the Harjo cancellation proceeding, but the evidence relating to whether the term “redskins” was disparaging to Native Americans during the relevant time period predominantly is the same as well. As noted by the majority, in this case the new petitioners re-submitted most of the same evidence that the Harjo petitioners submitted—evidence which the district court previously ruled was insufficient to support an order to cancel the challenged registrations as disparaging. The evidence from Harjo was augmented by depositions of the individual petitioners
228 Nor is this case about whether respondent may continue to use the term “redskins” as the name of a professional football team. As observed by the majority, our jurisdiction is limited to deciding only whether the marks that are the subject of this proceeding may continue to be registered. We have no authority to compel parties to cease use of marks.
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here, each of whom testified that they found the term “redskins” in the challenged marks offensive.229
Thus, beyond the statutory constraint that the Board can decide only whether the marks can remain registered, the Board’s decision also is constrained by the evidence placed before it. The new petitioners in this proceeding made the decision to simply re-use the trial record from the previous Harjo litigation, without substantial augmentation. The D.C. Circuit Court of Appeals did not overturn the district court’s ruling in Harjo II that the evidence introduced at the Board in the Harjo cancellation proceeding was insufficient to support the Board’s decision in that case. Nor has the passage of time aided what could be described as a stale record. The consequence of petitioners’ decision to rely on the same evidence previously found insufficient to support cancellation without substantial augmentation is that the evidence before the Board in this case remains insufficient as well.
By this dissent, I am not suggesting that the term “redskins” was not disparaging in 1967, 1974, 1978, and 1990 (the registration dates at issue). Rather, my conclusion is that the evidence petitioners put forth fails to show that it was.
THE RECORD The evidence submitted by petitioners can most charitably be characterized as a database dump. Despite the fact that the Board conducted a case management conference and issued an order “to clarify the applicable law prior to trial to allow
229 The petitioners did not resubmit the depositions of the Harjo petitioners in this case.
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the parties to focus their testimony and evidence on facts relevant to the legal issues,”230 petitioners submitted the entire Harjo file and even lodged objections to the evidence that they submitted. There was no order or structure to petitioners’ evidence that told a compelling story or presented a coherent case. One need look no further than gyrations the majority employed to establish the membership of the National Council of American Indians. It is astounding that the petitioners did not submit any evidence regarding the Native American population during the relevant time frame, nor did they introduce any evidence or argument as to what comprises a substantial composite of that population thereby leaving it to the majority to make petitioners’ case have some semblance of meaning.
DISPARAGEMENT CLAIM Expert Reports
As noted above, Dr. Geoffrey Nunberg, Dr. Ronald Butters, and David K. Barnhart were qualified as expert witnesses in linguistics, none of whom specifically researched the Native American viewpoint of the word “redskin(s)” in connection with football-related services during any time period.231 Despite the fact that the issue before us is how Native Americans perceive the term “Redskins,” we are presented with the expert testimony of three non-Native American men opining on how other presumptively non-Native American men and women (i.e., the editorial staff of dictionary publishers) perceive the term “Redskins.”
230 May 31, 2011 order summarizing pretrial conference (TTABVue 40). Petitioners also resubmitted the Ross Survey which the Board and the district court both held had little, if any, probative value. 231 See supra note 49.
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The majority notes that when Mr. Barnhart was asked whether the term “darky” is derogatory, he said that “[d]epending on the context, yes.”232 Likewise, we must determine how Native Americans perceive the term “Redskins” when used in connection with the name of a football team. In this regard, the record includes evidence, albeit one example after the relevant time period, regarding Native Americans using the term “Redskins” to identify the name of their sports teams. The record includes the following material:
a. A sign at a Navajo Indian Reservation school: Red Mesa High School Home of the Redskins, with the photograph taken in 1989 and sent by Robert D. Kahn to Jack Kent Cooke on November 4, 1991;233 and
b. A sports article in the April 30, 2010 issue of the Seminole Tribune (Fla.), referencing the “Lady Redskins” as one of the teams involved in a tribal basketball tournament.234 To the extent that post-1990 evidence has any relevance, it shows Native Americans using the term “Redskins” in a prideful way to identify their teams.235
We can imply from the use of “Redskins” by Native Americans in connection with the name of sports teams that the context in which “Redskins” is used changes
232 Barnhart Dep., pp. 71-72 (TTABVue 159, pp. 74-75). 233 Letter from Robert D. Kahn to Jack Kent Cooke (Nov. 4, 1991), Respondent’s Notice of Reliance, Ex. 33 (TTABVue 143, pp. 6-8). 234 Marcus Anthony Briggs-Cloud Dep. 67:20-68:14, 72:14-73:18, June 23, 2011 (TTABVue 121, pp. 73-74, 78-79); Briggs-Cloud Dep. Ex. 3 (Chris C. Jenkins, Son, Daughter Celebrated in Memorial Tourneys, SEMINOLE TRIBUNE (FLA.), Apr. 30, 2010, at 1C) (TTABVue 121, p. 24). 235 As noted above, this evidence was introduced into the record by petitioners because they believed it was relevant.
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the perception of the term. Thus, for example, when a dictionary usage label says “often offensive,” the usage label would not encompass use of the term “Redskins” in connection with a team name because that would not be offensive to Native Americans who identify their teams with the name “Redskins.” See the discussion about dictionary usage labels infra.
Petitioners also introduced testimony and evidence regarding Native Americans using other references to Native Americans and Native American imagery in connection with sports teams. This testimony and evidence introduced into this record by petitioners is relevant to show that the commercial impression or perception of a term or image changes in connection with its use. For example, the record includes the following:
a. A sign at a Navaho Indian Reservation school: Round Rock Public School Fighting Braves with an Indian logo, with comments on the back of the photograph indicating that the image was captured on June 10, 1994;236
b. A sign at a Navajo Indian Reservation school: Tuba City High Warriors with an Indian head logo, with comments on the back of the photograph indicating that the image was captured on June 10, 1994;237
c. An article in the November 1, 1991 issue of the Star Tribune238 reported the following:
236 Respondent’s Notice of Reliance, Ex. 37 (TTABVue 143, pp. 15-16). 237 Respondent’s Notice of Reliance, Ex. 38 (TTABVue 143, pp. 17-18). 238 Pat Doyle, ‘Chop’ is Spreading, but Indians Disagree on What is Offensive Most Decry 'Redskins’ Nickname, STAR TRIBUNE (Minn.), Nov. 1, 1991, at 2B, Petitioners’ Notice of Reliance, Ex. 20 (TTABVue 71, pp. 21, 33-35).
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[A]ttempts by the Department of Education to order all schools to discard Indian nicknames failed because leading tribal officials objected. They said schools with large Indian enrollments often took pride in the names. The tribal leaders cited Mahnomen High School, where the enrollment is 39 percent Indian. It’s located within White Earth reservation boundaries. Mahnomen’s nickname is Indians;
d. The website of the Omaha Nation public school system239 displaying
the legend “Home of the Chiefs & Lady Chiefs,” featuring teepees and an Indian
head logo, and providing issues of its online publication, Chief Times;240
e. A webpage from the Haskell Indian Nations University displaying an
Indian head logo;241
f. Various Native American images are shown as logos for Flandreau
Indian School, a Bureau of Indian Affairs boarding school located in Flandreau,
South Dakota.242
239 The Omaha are a Native American tribe and the Omaha Nation public schools are located in Macy, Nebraska. Briggs-Cloud Dep. 174:6-18 (TTABVue 120, p. 180); Gover Dep. Ex. 18 (Welcome to the Home of the Chiefs & Lady Chiefs, Omaha Nation Public Sch. website) (printed June 10, 2011) (TTABVue 118, pp. 49-51). 240 Gover Dep. Ex. 19 (Chief Times, vol. 1, issue 17, Omaha Nation Public Sch. website) (printed June 10, 2011) (TTABVue 118, pp. 52-55). Petitioner Phillip Gover testified that he was not aware of the school or the school’s team name. Gover Dep. 173:4-173:17 (TTABVue 120, pp. 178-79). 241 Blackhorse Dep. Ex. 2 (Haskell Logos, Haskell Indian Nations Univ. website) (printed June 19, 2011) (TTABVue 123, p. 29); Blackhorse Dep. 39:22-40:8, June 22, 2011 (TTABVue 122, pp. 47-48). Haskell Indian Nations University is located in Lawrence, Kansas. Blackhorse Dep. 26:12-13 (TTABVue 122, p. 34). 242 Pappan Dep. 16:8-16, 36:13-14, 73:19-76:6, Aug. 11, 2011 (TTABVue 112, pp. 20, 40, 7780), Pappan Dep. Exhibits 4-6 (TTABVue 113, pp. 27-29). A Bureau of Indian Affairs school “means 100 percent Native Americans attend this school.” Pappan Dep. 46:15-18.
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The Flandreau Indian School’s nickname is the “Indians” and, as shown by the image above, the school has an Indian head logo.243 The Flandreau Indian School’s girls’ basketball team is nicknamed the “Lady Indians” and another team in its league is nicknamed the “Mighty Braves;”244 and
g. The Sherman Indian High School, a Bureau of Indian Affairs school located in Riverside, California,245 has an Indian head logo, shown by the image below:246
The school’s nickname is the “Braves.”247
243 Pappan Dep. 60:20-25 (TTABVue 112, p. 64); Pappan Dep. Exhibits 4-6 (TTABVue 113, pp. 27-29). 244 Pappan Dep. 76:15-21 (TTABVue 112, p. 80). 245 Pappan Dep. 37:2-10, 46:13-18 (TTABVue 112, pp. 41, 50). 246 Pappan Dep. Ex. 2 (TTABVue 113, p. 25). 247 Pappan Dep. 43:24-44:13, 54:24-57:24 (TTABVue 112, pp. 47-48, 58-61).
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Petitioner Jillian Pappan, a Native American of the Omaha Tribe of Macy,

Nebraska,248 provided the following testimony regarding the use of Native American

imagery in connection with sports teams:

The Sherman Indian School logo is an attempt by a Native American school to show their pride, to show their honor, and I say ‘attempt’ because there are people that will misuse it.

*

*

*

The Sherman Indian School, I understand that they want to preserve heritage and preserve culture and it’s a good idea but at the end of the day that’s not the way to do it.249
The record does not show any evidence or testimony of any actual effort, past

or present, at any of the named Native American schools to have the Indian

namesakes or imagery changed as school nicknames and logos. Based on this

record, there is a difference between what petitioners’ linguistic expert concludes

regarding the meaning of the term “Redskins” and the empirical evidence regarding

how Native Americans use that term in connection with name of sports teams.

Dictionary Usage Labels for “Redskins” Entries

Keeping in mind that Registration No. 0836122 for the mark THE

REDSKINS (stylized), shown below, issued September 26, 1967,

248 Pappan Dep. Ex. 1: Resp. to Respondent’s First Set of Interrogs., No. 3, at 6 (TTABVue 113, p. 9). 249 Pappan Dep. 59:24-60:4, 60:11-15 (TTABVue 112, pp. 63-64).
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Cancellation No. 92046185 Registration No. 0978824 for the mark WASHINGTON REDSKINS, in typed drawing form, issued February 12, 1974, Registration No. 0986668 for the mark WASHINGTON REDSKINS and design, shown below, issued June 18, 1974,
Registration No. 0987127 for the mark THE REDSKINS and design, shown below, issued June 25, 1974, and
Registration No. 1085092 for the mark REDSKINS, in typed drawing form, issued February 7, 1978, let us examine the survey of dictionary usage labels.
The majority references the dictionary research conducted by Mr. Barnhart. He found no restrictive usage labels for the term “redskin” in any dictionaries prior to 1965. Beginning in 1966 Mr. Barnhart’s dictionary entries start to include usage labels indicating the term is offensive. See Random House Unabridged (1st ed. 1966). However, the record includes a copy of the 1967 Random House Unabridged Dictionary. There is no copy of the 1966 edition. Thus, at the time Registration No. 0836122 registered, there was purportedly only one dictionary with a usage label
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that stated the term “Redskin” is “often offensive,” meaning that it is not always
offensive and leaving open the possibility that “Redskins” is not considered offensive
when used in connection with the name of a football team.
According to Mr. Barnhart’s survey, between 1966 and 1979, only one additional dictionary published a negative usage label regarding the term
“Redskin”; that is, the Thorndike-Barnhart Intermediate Dictionary (1974), noting
that “the word redskin is often considered offensive.”250 Thus, at the time
Registration Nos. 0978824, 0986668, 0986668, and 1085092 registered, there were
two dictionaries with usage labels stating that the term “Redskin” is “often
offensive,” again meaning that it is not always offensive and leaving open the
possibility that “Redskins” is not considered offensive when used in connection with
the name of a football team.
Based on the above-noted evidence, the majority found that there is a “clear trend beginning in 1966 to label this term as offensive.” However, at the relevant
times (1967, 1974 and 1978), that “clear trend” comprised only two dictionaries.
Two does not make a trend. In fact the next dictionary to set forth a negative usage
label was the 1980 Oxford American Dictionary,251 six years after the 1974
Thorndike-Barnhart Intermediate Dictionary. The evidence does not support the
250 Barnhart Expert Report (June 8, 1996), Barnhart Ex. 3 (TTABVue 162, pp. 26-27). Mr. Barnhart was an associate editor of the Thorndike-Barnhart school dictionaries (1966-1980) and the general editor of THE BARNHART DICTIONARY OF NEW ENGLISH SINCE 1963 (1973), THE SECOND BARNHART DICTIONARY OF NEW ENGLISH (1980), and THE THIRD BARNHART DICTIONARY OF NEW ENGLISH (1990). Id. (TTABVue 162, p. 14). He is the son of Clarence Barnhart, a noted American lexicographer. Barnhart Dep. 23:14-16 (TTABVue 159, p. 26). 251 Id.
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majority’s finding of fact No. 7 that “[b]eginning in 1966 and continuing to 1990, usage labels in dictionaries indicating the term REDSKINS to be offensive, disparaging, contemptuous or not preferred appear and grow in number,” as applied to Registration Nos. 0836122, 0978824, 0986668, 0986668, and 1085092.252 The dictionary evidence is not sufficiently probative to justify cancelling respondent’s registrations when, as noted by the majority, any cancellation of a registration should be granted only with “due caution” and “after a most careful study of all the facts.” Rockwood Chocolate Co., Inc. v. Hoffman Candy Co., 152 USPQ at 601.
Use of the term Redskins in Various Media The majority references Dr. Nunberg’s survey of electronic databases from major newspapers and magazines published between approximately 1975 through 1989 to glean information about the use of the word “redskins” in the context of Native Americans.” Because Dr. Nunberg’s survey begins in 1975, the conclusions he draws are not relevant to Registration No. 0836122 registered in 1967 and Registration Nos. 0978824, 0986668, and 0986668 registered in 1974. Mr. Barnhart conducted a similar search using a Nexis electronic database group file featuring major newspapers, magazines and journals published between 1969 and 1996.253 He found that the term “redskin” or “redskins” appeared at least
252 The majority’s finding of fact No. 15 regarding dictionary usage labels is not relevant to 0836122 because that registration issued before the usage labels came into use. 253 Barnhart Expert Report pp. 3, 18 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, pp. 20, 35).
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once in 143,920 articles.254 Similar to Dr. Nunberg’s initial search results, Mr. Barnhart reported that the results of his “redskin” database search were “overwhelming to be in the context of sports,” with less than two percent of the results referring to Native Americans.255 Mr. Barnhart would not draw any inferences about the infrequency in which the term “redskin” or “redskins” was used to refer to Native Americans. He testified that it was not what he was asked to do and it would be a significantly greater project to determine whether there is any significance to the lack of occurrences.256 Nevertheless, he did conclude that since the term REDSKIN appeared in 143,920 articles, it “is acceptable in both formal and informal speech or writing of educated people”257 at least as it applies to sports teams.
In view of the foregoing, the majority’s conclusion that the “near complete drop-off in usage of ‘redskins’ as a reference to Native Americans beginning in the 1960’s” is somehow probative that the term is disparaging is not supported by the record.
NCAI Resolution The majority finds that the resolution passed by the National Congress of American Indians (“NCAI”) in 1993 is “clearly probative of the view of Native
254 Barnhart Dep. 64:13 (TTABVue 159, p. 67); Barnhart Expert Report pp. 3, 12 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 162, pp. 20, 29). 255 Barnhart Expert Report p. 12 (unnumbered), Barnhart Dep. Ex. 3 (TTABVue 161, p. 29); see Barnhart Dep. 69:5-8 (TTABVue 159, p. 72). 256 Barnhart Dep. 67:15-70:6 (TTABVue 159, pp. 70-73). 257 Barnhart Expert Report (TTABVue 162, p. 31).
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Cancellation No. 92046185
Americans held at the relevant time period because the NCAI “represented approximately thirty percent of Native Americans” and the resolution set forth “the past and ongoing viewpoint of the Native Americans it represents.” Despite the assertions in the resolution that the organization represents “the American Indian and Alaska Tribal governments and people gathered in Crystal City, Virginia, of the Washington D.C. area, for the 1993 Executive Council Meeting”258 of the organization, there is no reliable evidence supporting the number of Native Americans or tribes that attended the meeting or that were members of the organization during the relevant time frame between 1967 and 1990.
The majority relies on the deposition testimony of JoAnn Chase who became the Executive Director of the NCAI on April 1, 1994 and provided testimony about the resolution. JoAnn Chase testified that she “was not in attendance at this meeting” when the resolution was passed, that she did not know if any minutes of the meeting were taken, that she could not locate any record of the minutes or any indicator of whether a quorum was present for the voting of this resolution, that she had no record of the people in attendance at the meeting, and that she did “not know what the membership of the organization was at that time.”259 Ms. Chase also testified that she had no record of the number of tribes who had delegates to the organization in 1967, 1974, 1985, or 1990, no record of any similar resolutions concerning the use of the name “Washington Redskins” by the organization between 1967 and 1992, and had no letters or correspondence concerning the use of the word
258 NCAI Resolution (TTABVue 63, p. 71). 259 Chase Dep. 51:21-52:11, 53:7-17, 54:3-4 (TTABVue 98, pp. 57-60).
94

Cancellation No. 92046185
“redskins” or “Washington Redskins” with respect to the football team between 1967 and 1992.260
Nevertheless, based on the following testimony, the majority found that “there were between 100 – 400 members at the time the resolution was taken”:
I do not know what the membership of the organization was at that time. I can tell you currently, if, for example, our membership is 206 tribes, it would be one-third. At that time the membership would have been 100 tribes. It could have been 400 tribes. I don’t know.261 The majority also relies on the deposition of Harold Gross, the Director of Indian Legal Information Development Services, a legislative oversight program. The relevance of the Gross deposition testimony is that Mr. Gross testified that Leon Cook, President of the NCAI, participated in a 1972 meeting with Edward Bennett Williams, the President and part-owner of the Washington Redskins football team, to protest the Redskins name. Petitioners did not depose Mr. Cook and have him testify regarding the membership of the NCAI in 1972. Rather, the majority relies on an article published in the Washington Daily News on March 30, 1972 discussing that meeting which reported that the NCAI “claims a membership of 300,000.”262 The article provides no source as to 300,000 membership figure. The author of the article did not state that Leon Cook said that the NCAI had 300,000 members.
260 Id. 83:20-22, 84:1-85:1 (TTABVue 98, pp. 89-91). 261 Id. 54:3-8 (TTABVue 98, p. 60). 262 Petitioners’ Notice of Reliance Ex. 18 (TTABVue 48, p. 33).
95

Cancellation No. 92046185
The majority references an article published in The Washington Post on March 30, 1972 discussing that meeting reported that the NCAI claims a membership of 350,000 “according to the protesting group’s informal leader, Harold Gross, an attorney for another Indian organization.”263 According to the majority, “Harold Gross testified that he worked for the NCAI in 1969 and would have firsthand knowledge as to the membership in that time period.” In fact, Mr. Gross testified that he was staff counsel for a year.264 But he was not employed by the NCAI in 1972, the year that the meeting took place, and the article does not provide any information to conclude that Mr. Gross had accurate knowledge about the membership of the NCAI in 1972.
The majority references the participation of Dennis Banks, District Representative of the American Indian Movement, at the 1972 meeting. There is no testimony or evidence verifying the size or membership of that organization during the relevant time period.
The majority references the Michigan Civil Rights Commission Report on the Use of Nicknames, Logos and Mascots Depicting Native American People in Michigan Education Institutions (October 1998) which stated that the NCAI is “the oldest and largest national Indian group in the U.S.” This statement is probative that the Michigan Civil Rights Commission believes that the NCAI is the biggest Native American Group. However, there is no evidence, let alone reliable evidence, as to the basis of that belief on the part of the Michigan Civil Rights Commission.
263 Petitioners’ Notice of Reliance Ex. 18 (TTABVue 48, pp. 85-86) (emphasis added). 264 Gross Dep., p. 37 (TTABVue 79, p. 199).
96

Cancellation No. 92046185
In footnote 137, the majority references a statement by Dr. Britton Harwood set forth in the minutes of the Miami University Senate that “[t]he National Congress of American Indians, representing approximately 150 tribal governments, calls it [redskin] a racial slur.” The problem with Dr. Harwood’s statement is that (i) the minutes do not identify Dr. Harwood, (ii) the minutes do not identify how Dr. Harwood is knowledgeable about the membership of the NCAI, and (iii) the minutes do not identify the source that Dr. Harwood used to quantify the membership of the NCAI. The minutes are probative of Dr. Harwood’s belief as to the membership of the NCAI, made in support of a resolution urging Miami University to change its’ team names.
In footnote 140, the majority references a 1992 survey by WTOP, a Washington, D.C. radio station, showing 28% of Native American tribal leaders found the name Redskins offensive corroborates the fact that a substantial composite of Native Americans perceive the term “Redskin” to be disparaging.265 The purpose of the survey was to see how tribal leaders and listeners felt about WTOP not using the name Washington Redskins to refer to the football team. There are numerous problems with this survey for purposes of this proceeding. First, the survey took place in 1992, after the relevant time period about an act that took place after the relevant time period. Second, the “tribal leaders” were asked a leading question: “Do you think the name of the football team, The Washington Redskins, is offensive?” The survey respondents were only given the option to
265 John Kent Cooke Dep., Ex. 6 (TTABVue 149, pp. 43-68; TTABVue 156, pp. 11-38).
97

Cancellation No. 92046185
answer “yes” or “no.” They were not given the option of “do not know” or “no
opinion.” There was no probe question as a follow-up to the answer to determine
why a respondent gave a particular answer. Finally, it is not clear that the
universe of “tribal leaders” was correct. Petitioners did not provide any information
regarding how the survey company identified tribal leaders or verified that the
respondent was, in fact, a tribal leader. Furthermore, there was no verification to
determine whether the interviews actually took place.
Finally, the majority relies on a June 3, 1991 letter from Dale Pullen,
publisher of The U.S. Congress Handbook to Charlie Drayton, the Vice President of
Communications for the Washington Redskins.266 In his letter, Mr. Pullen wrote
the following:
The National American Indian Council, representing 70 per cent of the American Indian population, would like 400 U.S. CONGRESS HANDBOOKS for their D.C. meeting beginning June 7. Ms. Lee Ann Tallbear, Executive Director, for the NAIC, called to see how she might get books . . . . Ms. Tallbear said that her group represents about 1.2 million American Indians who do not live on reservations. The National Congress of American Indians represent [sic] Indians living on reservations (the remaining 30 percent). This is the most persuasive evidence that supports the majority’s contention.
Nevertheless, the letter is double hearsay (i.e., hearsay within hearsay). While the
hearsay objection has been waived, it does not remove the problem with this type of
266 Chase Dep. pp. 104-105 (TTABVue 98, pp. 110-111), Respondent’s Notice of Reliance Ex. 29.1 (TTABVue 142, p. 43) (shown as the Deloria Exhibit 35 also presented as exhibit 41 in the Chase deposition).
98

Cancellation No. 92046185 evidence (i.e., someone said to someone that the NCAI represents “the remaining 30 percent”).
The evidence supporting the majority’s finding of fact No. 27 that “[a]pproximately 150 tribes were members [of the NCAI] in 1993” and its conclusion that “[t]he NCAI members throughout the time period represent approximately 30 percent of Native Americans” is a house of cards that collapses upon examination.
In view of the above, “after a careful study of all the facts” and “due caution,” I find that petitioners failed to show by a preponderance of the evidence that a substantial composite of Native Americans found the term REDSKINS to be disparaging in connection with respondent’s services during the relevant time frame of 1967-1990. Accordingly, the six registrations should not be cancelled under Sections 2(a) and 14(3) of the Trademark Act.
99

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

BOOKS, ESSAYS, GUIDES, SCHOLARLY PAPERS & JOURNAL ARTICLES

1

Book excerpt George E. Shankle, American Nicknames: Their Origin & 62, pp. 164-65;

Significance 373 (2d ed. 1955);

(dup)

As Nunberg Dep. Ex. 40 (part)

86, pp. 55-56

1 & Book excerpt, Irving Lewis Allen, Language of Ethnic Conflict, Social 63, pp. 40-41;

67 book

Organization & Lexical Culture 50-51 (1983);

(complete) 90,

(complete)

pp. 72-110;

As Nunberg Dep. 40 (part) [title page only]

86, p. 98

20 Article in

NCAI Wages War on Indian Image, NCAI Sentinel,

48, pp. 80-82

journal

Winter-Spring 1969, at 5-7.

37 Article in

Rayna Green, The Indian in Popular American Culture, 77, pp. 65-84

monographic in Handbook of N. Am. Indians IV (not on copy) 587-606

series

(1988)

38 Article in

Richard Hill, Savage Splendor: Sex, Lies and Stereotypes, 77, pp. 86-95

literary

Turtle Quarterly 14-23 (undated)

magazine

39 Essay

Michael Dorris, Why I'm not Thankful for Thanksgiving, 77, pp. 97-100

[in another publication] 19-22 (1978) (not on copy)

40 Essay

Mary Gloyne Byler, Taking Another Look, [in another

77, pp. 102-08

publication] 83-89 (undated)

41 Book excerpt Frederick Whittaker, Hunters and Redskins (1909)

77, pp. 110-22

42 Book excerpt Ernest A. Dench, Making the Movies v, 92-95 (1915)

78, pp. 5-8

48 Book excerpt
49 Book excerpt 51 & Article in 77 journal

Morris A. Bealle, The Redskins 1937-1958, at 6-7, 10-11, 20-21, 34-35, 52-53, 80-81, 90-91, 96-97, 104-05, 118-23, 154-55, 158-63, 194-95, 198-99, 226-27 (1959)
Henry E. Fritz, The Movement for Indian Assimilation, 1860-1890, at 176-77 (1963)
Hedy Hartman, A Brief Review of the Native American in American Cinema, 9 Indian Historian 27-29 (1976)

52
53
54 55 & 77

Article in journal
Article in journal
Book excerpt
Article in book

Wolfgang Mieder, Proverbs in Nazi Germany: The Promulgation of Anti-Semitism and Stereotypes Through Folklore, J. of Am. Folklore, 1982
Alden T. Vaughan, From White Man to Redskin: Changing Anglo-American Perceptions of the American Indian, 87 Am. Hist. Rev. 917-53 (1982)
Robert Pack, Edward Bennett Williams for the Defense 14-15, 74-77, 80-83, 90-103 (1983)
Haig A. Bosmajian, Defining the “American Indian”: A Case Study in the Language of Suppression, in Exploring Language 291-99 (3d ed. 1983)

78, pp. 36-56
78, pp. 58-60
78, pp. 62-64; (dup entry) 91, pp. 140-42 78, pp. 66-81
89, pp. 5-41
89, pp. 43-56
89, pp. 58-62; (dup entry) 91, pp. 149-53

100

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

56 Article in

Robert H. Keller Jr., Hostile Language: Bias in Historical 89, pp. 64-79

journal

Writing About American Indian Resistance, in J. of Am.

Culture 9-23 (Winter 1986)

57 Book

Irving Lewis Allen, Unkind Words: Ethnic Labeling from 87, pp. 6-80

Redskin to WASP (1990)

58 Unpublished Cornel D. Pewewardy, Native American Mascots and

87, pp. 82-95

manuscript

Imagery: The Struggle of Unlearning ‘Indian’

Stereotypes (Oct. 26-30, 1991)

60 Article in

Charles L. Cutler, “I Have Spoken”: Indianisms in

87, pp. 103-08

journal

Current English, English Language Notes, Mar. 1992, at

70-80

61 Article in

Robin Powell, Recycling the Redskin, Turtle Quarterly,

87, pp. 110-13

literary

Winter 1993, at 8-11

magazine

62 Article in

Wolfgang Mieder, “The Only Good Indian is a Dead

90, pp. 5-28

journal

Indian” History and Meaning of a Proverbial Stereotype,

J. of Am. Folklore, Winter 1993, at 38-60

63 Article in

Robert Jensen, Banning “Redskins” From the Sports

90, pp. 30-34

journal

Page: The Ethics and Politics of Native American

Nicknames, J. of Mass Media Ethics, 1994, at 16-25

64 Unpublished John M. Coward, What “Indians” Mean in the Media:

90, pp. 36-64

manuscript

Race, Language, and the Population Imagination (Aug.

1995)

65 Book

Raymond William Stedman, Shadows of the Indian

90, p. 66

(complete)

(1982) (on file with TTAB)

66 Book

John E. O’Connor, The Hollywood Indian: Stereotypes of 90, pp. 68-70

(complete)

Native Americans in Films (1980) (on file with TTAB)

70 Teacher’s

John M. Coward, Teacher’s Guide to the Media & the Am. 91, pp. 9-40

Guide

Indian, undated

74 Article in book Robert B. Moore & Arlene Hirschfelder, Feathers,

91, pp. 77-85

Tomahawks & Tipis, in Understanding “Indian”

Stereotypes (1977)

112 Thesis

Arlene B. Hirschfelder, Univ. of Chi., The Treatment of 95, pp. 76-176;

American Indians in Selected American History

Textbooks for Secondary Schools, Aug. 1971

(dup)

As Hirschfelder Dep. Ex. 7

107, pp. 5-108

113 Book

Frederick E. Hoxie, A Final Promise: The Campaign to

95, pp. 178-80

Assimilate the Indians, 1880-1920 (1984) (on file with

TTAB)

114 Book

Frederick E. Hoxie, Parading Through History: The

95, p. 182

Making of the Crow Nation in America 1805-1935 (1995)

(on file with TTAB)

101

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

125 Play in book James L. McCloskey, Across the Continent; Or, Scenes

64, pp. 5-32

from New York Life and the Pacific Railroad 64-114

(1963)

126 Movie review “Flap” is Flop, 4 Indian Historian [unknown] (Spring

64, p. 34

in journal

1971)

127 Article in

Stanford Removes Indian Symbol, 5 Indian Historian 21 64, p. 38

journal

(1972)

(partial)

129 Article in

Jeannette Henry, Our Inaccurate Textbooks, 1 Indian

64, pp. 46-50

journal

Historian 21-24 (1967)

130 Essay in book Jay J. Coakley, Team Logos and Mascots: When are They 64, pp. 52-55

Racist?, Sport in Society, Issues & Controversies (4th ed.

1990)

170 Book excerpt NR 6: [author unknown] The Iron Redskin 19, 21, 111,

83, pp. 5-9

203 (1994) (not on copy)

170 Guide excerpt NR 6: Jerry Hatfield, Illustrated Indian Motorcycle

83, pp. 10-13

Buyer’s Guide: All the Iron Redskins from 1901, at 145-

46 (1989) (not on copy)

N/A Article in

Hirschfelder Dep. Ex. 4: Arlene Hirschfelder,

106, pp. 22-30

catalog

Headdresses, Drums, and Bows and Arrows: Indian

Imagery in Children’s Toys

N/A Article in

Hirschfelder Dep. Ex. 5: Arlene Hirschfelder, Unlearning 106, pp. 32-38

journal

Indian Stereotypes, 12 HALCYON, at 49-61 (1990)

N/A Book excerpt Hirschfelder Dep. Ex. 6: Arlene Hirschfelder, Am. Indian 106, pp. 40-57

Stereotypes in the World of Children: A Reader &

Bibliography 46-79 (1982)

N/A Textbook

Ross Dep. Ex. 157: Donald S. Tull & Del I. Hawkins,

92, pp. 179-83

excerpt

Marketing Research: Measurement & Method 183-85 (6th

ed. 1993)

N/A Book excerpt Ross Dep. Ex. 158: Jacob Jacoby, Survey & Field

92, pp. 184-87

Experimental Evidence, in Saul M. Kassin & Lawrence S.

Wrightsman, Psychology of Evidence & Trial Procedure

182-85 (1985)

N/A Book excerpt Ross Dep. Ex. 163: William G. Zikmund, Exploring

93, pp. 43-46

Marketing Research 143-44 (1994)

N/A Book excerpt Ross Dep. Ex. 164: Naresh K. Malhotra, Marketing

93, pp. 47-50

Research: An Applied Orientation 177-78 (1993)

N/A Article

Ross Dep. Ex. 166: Jacob Jacoby, Experimental Designs 93, pp. 84-97

in Deceptive Advertising & Claim Substantiation

Research, presented at Council of Better Business

Bureaus, NAD Workshop III, at 119-31 (Apr. 29-30, 1991)

BROADCAST TRANSCRIPTS

72 Broadcast

60 Minutes (CBS News television broadcast Mar. 4, 1973) 91, pp. 54-71

transcript

102

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

BUSINESS COMMUNICATIONS BETWEEN RESPONDENT & THIRD-PARTIES AND

INTERNAL COMMUNICATIONS (UNLESS UNDER OTHER HEADING)

25 Business

John Kent Cooke Jr., Dir. of Promotions, to Craig Kapp, 50, p. 21;

facsimile

McCann-Erickson USA, Sept. 13, 1993, regarding ad

campaign;

(dup)

As Cooke Dep. Ex. 7

65, p. 147

N/A Business

Cooke Dep. Ex. 2: John Kent Cooke, Redskins, to Susan 65, p. 139

letter

T. Fletcher, Phila. Eagles, Sept. 22, 1983

N/A Internal

Cooke Dep. Ex. 3: Paul E. Denfeld, to John Kent Cooke, 65, p. 141

memo

Subject: Chief Z, May 19, 1987

N/A Business

Cooke Dep. Ex. 4: John Kent Cooke, Redskins, to Nate 65, p. 143

letter

Pope, NPC & Associates, Aug. 10, 1987

N/A Business

Cooke Dep. Ex. 5: John Kent Cooke, Redskins, to Ercle F. 65, p. 145

letter

Herbert Jr., Herbert & Herbert Inc., Dec. 18, 1987

N/A Response to Nunberg Dep. Ex. 41 (part): Jack Kent Cooke to Robert 88, p. 56

support letter H. Paschall, May 3, 1988

N/A Response to Nunberg Dep. Ex. 41 (part): Jack Kent Cooke to Sylvia L. 88, p. 59

support letter Cash, May 3, 1988

N/A Response to Nunberg Dep. Ex. 41 (part): John Kent Cooke to Wilcomb 88, p. 60

support letter E. Washburn, May 3, 1988

N/A Response to

Nunberg Dep. Ex. 41 (part): Charlie Dayton, Commc’n

88, p. 64

support letter Dir., Wash. Redskins, to R. C. Ahtone, June 15, 1988

N/A Response to Nunberg Dep. Ex. 41 (part): John Kent Cooke to Wilcomb 88, p. 119

support letter E. Washburn, Jan. 9, 1992

N/A Response to Nunberg Dep. Ex. 41 (part): John Kent Cooke to Robert 88, p. 158

support letter Salgado, Soboba Band of Mission Indians, Mar. 5, 1992

N/A Response to Nunberg Dep. Ex. 41 (part): John Kent Cooke to Joseph 92, p. 20

support letter F. K. Mayhew, Mar. 26, 1992

N/A Response to Nunberg Dep. Ex. 41 (part): John Kent Cooke to Wilcomb 92, p. 32

support letter E. Washburn, Apr. 21, 1992

N/A Response to Nunberg Dep. Ex. 41 (part): Jack Kent Cooke to M.

92, p. 71

support letter Henson, Aug. 3, 1992

N/A Response to Cooke Dep. Ex. 26: Jack Kent Cooke, Redskins, to James 66, pp. 52-53;

support letter Kevin Campbell, Sept. 2, 1993, with James Kevin

Campbell to Jack Kent Cooke, Aug. 20, 1993;

(dup)

As Nunberg Dep. Ex. 41 (part)

92, p. 75

N/A Internal

Nunberg Dep. Ex. 41 (part): Charlie Dayton to Jack Kent 92, pp. 77-144

memo

Cooke, re: Nat’l Rainbow Coalition campaign letters

received, Oct. 13, 1993, with protest letters attached

BUSINESS LETTERS BETWEEN RESPONDENT & PUBLISHER

10 Business

Prof’l Football Publications Ass’n to John Kent Cooke,

68, p. 15

letter

May 23, 1993, regarding advertising space

10 Business

Redskin Review to Redskin Park, May 2, 1994,

68, p. 16

letter

requesting player photos

103

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

10 Business

Redskin Review to Redskin Park, May 2, 1994,

68, p. 17

letter

requesting player autograph

10 Business

Redskin Review to Redskin Park, Aug. 9, 1994,

68, p. 18

letter

requesting issuance of game credentials

10 Business

Redskin Review to Redskin Park, Aug. 23, 1994,

68, p. 20

letter

requesting issuance of game credentials

10 Business

Redskin Review to Redskin Park, Aug. 23, 1994,

68, p. 21

letter

requesting player autographs

10 Business

Redskin Review to Redskin Park, Aug. 30, 1994,

68, p. 22

letter

requesting issuance of game credentials

10 Business

Redskin Review to Redskin Park, Sept. 13, 1994,

68, p. 23

letter

requesting issuance of game credentials

10 Business

Redskin Review to Redskin Park, Sept. 20, 1994,

68, p. 24

letter

requesting press and photo passes

10 Business

Redskin Review to Redskin Park, Sept. 27, 1994,

68, p. 25

letter

requesting press and photo passes

10 Business

Redskin Review to Redskin Park, Sept. 28, 1994,

68, p. 26

letter

requesting player autographs

10 Business

Redskin Review to Redskin Park, Oct. 11, 1994,

68, p. 27

letter

requesting press and photo passes

10 Business

Redskin Review to Redskin Park, Oct. 18, 1994,

68, p. 28

letter

requesting issuance of game credentials

10 Business

Redskin Review to Redskin Park, Nov. 1, 1994,

68, p. 29

letter

requesting issuance of game credentials

10 Business

Redskin Review to Redskin Park, Nov. 15, 1994,

68, p. 30

letter

requesting issuance of game credentials

10 Business

Redskin Review to Redskin Park, Nov. 22, 1994,

68, p. 31

letter

requesting issuance of game credentials

10 Business

Redskin Review to Redskin Park, Nov. 29, 1994,

68, p. 32

letter

requesting issuance of game credentials

10 Business

Redskin Review to Washington Redskins, Nov. 30, 1995, 68, pp. 33-34

letter

regarding 1995 press passes

10 Business

Redskin Review to Redskin Park, Dec. 13, 1994,

68, p. 35

letter

requesting press and photo passes

10 Business

Progressive Publ’g Grp. to Washington Redskins, July 17, 68, pp. 36-37

letter

1995, regarding ownership change of Redskin Review

10 Business

Redskin Review to Redskin Park, Aug. 29, 1995,

68, p. 38

letter

requesting issuance of game credentials

10 Business

Redskin Review to Redskin Park, Oct. 26, 1995,

68, p. 39

letter

requesting issuance of game credentials

10 Business

Redskin Review to Redskin Park, Nov. 14, 1995,

68, p. 40

letter

requesting issuance of game credentials

104

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

10 Business

Redskin Park to Redskin Review, Dec. 1, 1995, regarding 68, p. 41

letter

game-by-game credentials requests

BUSINESS RECORDS (RESPONDENT’S)

25 Board

Redacted minutes of Mar. 27, 1972 meeting of

50, pp. 16-18

minutes

respondent’s regular meeting of directors

BUSINESS RECORDS (THIRD-PARTY)

N/A Incorporating Chase Dep. Ex. 108: Nat’l Congress of Am. Indians

83, pp. 41-46

documents

Const. & By-Laws, Nov. 14, 1944, as further amended

N/A Board

Kahn Dep. Ex. 2: Am. Jewish Comm. Bd. of Dirs.

108, pp. 18-19

minutes

Minutes, Sept. 2, 1992

N/A Incorporating Stevens Dep. Ex. 1: Cent. Conf. Of Am. Rabbis Const. & 94, pp. 89-94

documents

By-Laws, June 1953, as further amended

CORRESPONDENCE BY PETITIONERS’ COUNSEL

N/A Business

Nunberg Dep. Ex. 4: Stephen R. Baird to Geoffrey

83, pp. 90-91

letter

Nunberg, Dec. 7, 1995, regarding consultation as expert

N/A Business

Nunberg Dep. Ex. 5: Stephen R. Baird to Geoffrey

83, p. 93

letter

Nunberg, Feb. 21, 1996, regarding film list

N/A Business

Nunberg Dep. Ex. 6: Stephen R. Baird to Cy Gomberg, 83, pp. 95-96

letter

Jan. 26, 1993, regarding film list

N/A Business

Nunberg Dep. Ex. 7: Stephen R. Baird to Geoffrey

83, p. 98

letter

Nunberg, Jan. 30, 1996, regarding materials

N/A Business

Ross Dep. Ex. 7: Michael A. Lindsay to Ivan Ross, Dec. 7, 84, pp. 112-55

letter

1995, regarding Harjo cancellation petition, answer &

MSJ, with attachments

N/A Business

Ross Dep. Ex. 8: Stephen R. Baird to Ivan Ross, Dec. 7, 102, pp. 7-127;

letter

1995, regarding materials

85-127;

103, pp. 4-62

N/A Business

LaFromboise Dep. Ex. 4: Laurie Scalon to Teresa D.

108, pp. 64-74

letter

LaFromboise, Dec. 5, 1996, regarding prepared expert

report

N/A Business

LaFromboise Dep. Ex. 6: Michael Drysdale to Teresa D. 108, pp. 76-84

letter

LaFromboise, May 8, 1996, regarding expert testimony

draft

N/A Business

Stevens Dep. Ex. 4: Gerald H. Sullivan to Elliot Stevens, 94, p. 101

letter

Jan. 28, 1997, regarding deposition

N/A Fax cover

Stevens Dep. Ex. 5: Gerald H. Sullivan to Elliot Stevens, 94, p. 103

Jan. 28, 1997, cover page

N/A Fax note

Stevens Dep. Ex. 6: Gerald H. Sullivan to Elliot Stevens, 94, p. 105

Jan. 28, 1997, regarding resolution

CORRESPONDENCE BETWEEN THIRD PARTIES

26 Business

Dave Moore, Am. Indian Bible College, to Paul Tagliabue, 50, pp. 23-24

letter

NFL, Feb. 19, 1991

105

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

32 Business

William B. Welles & Charles B. Krusen to Pete Rozelle, 77, pp. 20-21

letter

Apr. 25, 1972

75 Business

Donald T. Carlson, Univ. Relations Dir., Stanford Univ., 91, pp. 87-89

letter

to Kris Boucher, Dir. of Athletics, Wayland Acad., Dec. 5,

1985, with Stanford U. press release (Dec. 6, 1979), &

Tony Kahn, Editorial: ‘Indian’ Mascot Belittled Native

Americans, Stanford Daily (handwritten), Nov. 1, 1985

(handwritten)

76 Business

Michael A. Bailey to Paul O. Sand, Reg’l Dir., Nat’l

91, p. 91

letter

Conference of Christians & Jews, Feb. 17, 1988

79 Business

Terry Shepard, Univ. of Ill., to Gary Smith, Dir.,

91, pp. 197-201

letter

Marching Illini, Feb. 5, 1990, with attachments

81 Business

Robert Eaglestaff, Principal, Am. Indian Heritage Sch. & 95, p. 5

letter

Program, to Kris Deweese, Jan. 21, 1992

84 Business

John Mundahl, Minn. Pub. Sch., to Dorsey & Whitney

95, p. 11

letter

Law Firm, Sept. 11, 1992

85 Business

U.S. Sen. Daniel K. Inouye, Select Comm. on Indian

95, p. 13

letter

Affairs, to Tom Griffith, Nov. 6, 1992

89 Memo

Bill Jarboe, Comm. Chair, to Beverly Jasmin, I.H.S. Bldg. 95, pp. 32-33

Coordinator, Native Am. Mascot Associated with Iroquis

H. S., Aug. 13, 1993

92 E-mail

Adolph L. Soens to manley@ksgrsch.harvard.edu, Oct. 5, 95, p. 48

1994

N/A Business

Cooke Dep. Ex. 1:

65, pp. 136-37

letter

Susan T. Fletcher, Phila. Eagles, to Marilyn Z. Kutler,

Municipal Services Bldg., re: Parking Lot Incident During

Wash. Redskins Game at Veterans Stadium Sept. 11,

1983, Sept. 16, 1983

CORRESPONDENCE RELATING TO MAR. 1972 MEETING—FROM

WILLIAMS & CONNELLY LAW FIRM

32 Note

La Donna [Harris] (Native American) to Ed[ward]

77, p. 7

Bennett Williams, undated

32 Notes

Recommendations to the Washington D.C. Prof’l Football 77, pp. 9-10;

Team, from seven Native American meeting participants; (dup)

As Gross Dep. Ex. 32.005

105, pp. 67

32 Protest letter Harold M. Gross, Dir., Indian Legal Info. Dev. Servs.

77, pp. 11-13;

(Native American legislative oversight group) to Edward

Bennett Williams , Jan. 18, 1972;

(dup)

As Gross Dep. Ex. 32.007

105, pp. 71-73

32 Unsigned

Edward Bennett Williams to Harold M. Gross, Jan. 31, 77, p. 15;

business letter 1972;

(dup)

As Gross Dep. Ex. 32.009

105, p. 75

106

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

32 Business

Harold M. Gross to Edward Bennett Williams , Feb. 16, 77, p. 16;

letter

1972;

(dup)

As Gross Dep. Ex. 32.010

105, p. 77

32 Protest letter Ron Aguilar, President, Nat’l Indian Youth Council, to

77, p. 17;

Wash. Redskins Football Team, Mar. 29, 1972;

(dup)

As Gross Dep. Ex. 32.011

105, p. 79

32 Unsigned

Edward Bennett Williams to Pete Rozelle, NFL, Mar. 30, 77, p. 18;

business letter 1972;

(dup)

As Gross Dep. Ex. 32.012

105, p. 81

32 Unsigned

Edward Bennett Williams to Harold M. Gross, Mar. 30, 77, p. 19;

business letter 1972;

(dup)

As Gross Dep. Ex. 32.013

105, p. 83

32 Note

Edward Bennett Williams to La Donna Harris, June 7,

77, p 22

1972

CURRICULA VITAE

N/A CV

Nunberg Dep. Ex. 2 (end): Geoffrey D. Nunberg, Apr.

83, pp. 76-80;

1996;

(dup)

As Nunberg Dep. Ex. 32

108, pp. 95-99

N/A CV

Ross Dep. Ex. 3 (part): Ivan Ross, May 1996

97, pp. 15-29

N/A CV

Hirschfelder Dep. Ex. 1: Arlene Hirschfelder

106, pp. 8-10

N/A CV

Hoxie Dep. Ex. 1: Frederick E. Hoxie

107, pp. 117-21

N/A CV

LaFromboise Dep. Ex. 2: Teresa D. LaFromboise, April 108, pp. 39-63

1996

DEPOSITIONS & SUBPOENAS TO GIVE TESTIMONY/PRODUCE EVIDENCE

N/A Deposition

John Kent Cooke Dep., Mar. 26, 1996

65, pp. 85-107

N/A Deposition

John Kent Cooke Dep., Mar. 27, 1996

65, pp. 108-34

N/A Deposition

JoAnn Chase Dep., Apr. 26, 1996

98, pp. 6-124

N/A Subpoena N/A Deposition

Chase Dep. Ex. 107: Subpoena Ad Testificandum & Duces Tecum on the Nat’l Congress of Am. Indians’ custodian of records, Mar. 15, 1996
Ivan Ross Dep., Dec. 12, 1996

83, pp. 20-40 96, pp. 5-253

N/A Subpoena N/A Deposition N/A Subpoena N/A Deposition

Ross Dep. Ex. 1: Subpoena Ad Testificandum & Duces Tecum on Ivan Ross, Dec. 12, 1996 As Ross Dep. Ex. 4 Geoffrey D. Nunberg Dep., Dec. 17, 1996
Nunberg Dep. Ex. 1: Subpoena for Foreign Deposition served on Geoffrey Nunberg, Dec. 5, 1996 Elliot L. Stevens Dep., Jan. 30, 1997

83, pp. 169-76;
84, pp. 61-71 98, pp. 128-76, 99, pp. 2-177 83, pp. 52-58
101, pp. 8-71

N/A Deposition

Walterene Swanston Dep., Jan. 31, 1997

101, pp. 73-143

107

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

N/A Deposition

Judith Kahn Dep., Jan. 31, 1997

80, pp. 217-56

N/A Deposition

Frederick E. Hoxie Dep., Feb. 12, 1997

80, pp. 127-215

N/A Deposition

Teresa D. LaFromboise Dep., Feb. 17, 1997

81, pp. 5-115

N/A Subpoena N/A Deposition

LaFromboise Dep. Ex. 1: Subpoena for Foreign Deposition served on Teresa D. LaFromboise, Dec. 5, 1996
Susan Courtney Dep., Feb. 18, 1997

108, pp. 21-28 79, pp. 6-161

N/A Deposition

Geoffrey D. Nunberg Dep., Feb. 18, 1997

81, pp. 119-271

N/A Deposition

Geoffrey D. Nunberg Dep., Feb. 19, 1997

82, pp. 5-125

N/A Deposition

Ivan Ross Dep., Feb. 20, 1997

82, pp. 127-267

N/A Deposition

Arlene B. Hirschfelder Dep., Apr. 10, 1997

80, pp. 6-125

N/A Deposition

Harold M. Gross Dep., June 11, 1997

79, pp. 163-235

N/A Deposition N/A Deposition

Ivan Ross Dep., June 11, 1997 Geoffrey D. Nunberg Dep., June 17, 1997

100, pp. 5-150; 101, pp. 2-6
109, pp. 6-159

1

Definition

1

Definition

1

Definition

1

Definition

1

Definition

1

Definition

1

Definition

1

Definition

DICTIONARIES Am. Heritage Dictionary of the English Language 1514 (3d ed. 1992); As Nunberg Dep. Ex. 40 (part) Am. Heritage Dictionary of the English Language 1514 (3d ed., 1996); As Nunberg Dep. Ex. 40 (part) Chambers English Dictionary [illegible page number] (7th ed. 1988); As Nunberg Dep. Ex. 40 (part) Merriam Webster's Collegiate Dictionary 980 (10th ed. 1995); As Nunberg Dep. Ex. 40 (part) Oxford Am. Dictionary 564 (1980); As Nunberg Dep. Ex. 40 (part)
Oxford English Dictionary 429 (2d ed. 1989); As Nunberg Dep. Ex. 35 Random House Dictionary of the English Language 1204 (1966); As Nunberg Dep. Ex. 40 (part) Random House Dictionary of the English Language 1204 (1967); As Nunberg Dep. Ex. 40 (part)

63, pp. 61-63; (dup) 88, pp. 20-22
63, pp. 67-69; (dup) 88, pp. 26-28
63, pp. 52-54; (dup) 88, pp. 14-16
63, pp. 64-66; (dup) 88, pp. 23-25
63, pp. 16-18; (dup) 86, pp. 74-76
63, pp. 55-57; 108, pp. 108-10
62, pp. 166-68; (dup) 86, pp. 60-62
62, pp. 169-71; (dup) 86, pp. 63-64

108

Cancellation No. 92046185

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

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Source

TTABVue

Ex.

Ref. No.

1

Definition

Random House Dictionary of the English Language 1107 63, pp. 4-6;

(College Edition) (1968);

(dup)

As Nunberg Dep. Ex. 40 (part)

86, pp. 57-59

1

Definition

Random House Dictionary of the English Language 642 63, pp. 7-8;

(School Edition) (1970);

(dup)

As Nunberg Dep. Ex. 40 (part)

86, pp. 65-66

1

Definition

Random House Dictionary of the English Language 1204 63, pp. 9-11;

(1973);

(dup)

As Nunberg Dep. Ex. 40 (part)

86, pp. 67-69

1

Definition

Random House College Dictionary 1107 (rev. ed., 1975); 63, pp. 12-13;

As Nunberg Dep. Ex. 40 (part)

(dup)

86, pp. 70-71

1

Definition

Random House Dictionary of the English Language [no 63, pp. 14-15;

page provided] (1979);

(dup)

As Nunberg Dep. Ex. 40 (part)

86, pp. 72-73

1

Definition

Random House Dictionary of the English Language 1618 63, pp. 46-48;

(2d ed. 1987);

(dup)

As Nunberg Dep. Ex. 40 (part)

88, pp. 8-10

1

Definition

Richard A. Spears, Slang & Euphemism: A Dictionary of 63, pp. 19-39;

Oaths, Curses Insults, Sexual Slang & Metaphor, Racial

Slurs, Drug Talk, Homosexual Ling, & Related Matters

vii-xxiv, 327 (1981);

(dup)

As Nunberg Dep. Ex. 40 (part)

86, pp. 77-97

1

Definition

Webster's Ninth New Collegiate Dictionary 987 (1986);

63, pp. 42-45;

(dup)

As Nunberg Dep. Ex. 40 (part)

88, pp. 4-7

1

Definition

Webster's Ninth New Collegiate Dictionary 987 (1988);

63, pp. 49-51;

(dup)

As Nunberg Dep. Ex. 40 (part)

88, pp. 11-13

1

Definition

Webster's Ninth New Collegiate Dictionary 987 (1990);

63, pp. 58-60;

(dup)

As Nunberg Dep. Ex. 40 (part)

88, pp. 17-19

N/A Definition

As Nunberg Dep. Ex. 8: Thorndike/Barnhart Doubleday 83, pp. 100-01

Advanced Dictionary 855 (1979)

N/A Definition

As Nunberg Dep. Ex. 9: HBJ School Dictionary (1977)

83, pp. 103-04

N/A Definition

As Nunberg Dep. Ex. 10: Webster’s New American

83, pp. 106-07;

Dictionary 823 (1965);

(dup)

As Hoxie Dep. Ex. 4;

107, pp. 139-

As Nunberg Dep. Ex. 46:

40; 92, pp. 170-

71

N/A Definition

As Nunberg Dep. Ex. 11: Int’l Webster New Encyclopedic 83, pp. 109-10;

Dictionary 803 (1970);

(dup)

As Hoxie Dep. Ex. 6;

108, pp. 5-6;

As LaFromboise Dep. Ex. 9

108, pp. 88-89

109

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

N/A Definition

As Nunberg Dep. Ex. 12: World Book Dictionary, Vol. 2, 83, pp. 112-13

1633 (1967)

N/A Definition

As Nunberg Dep. Ex. 13: World Book Dictionary, Vol. 2, 83, pp. 115-16

1752 (1979)

N/A Definition

As Nunberg Dep. Ex. 14: Webster’s New Twentieth

83, pp. 118-19;

Century Dictionary of the English Language Unabridged (dup)

1513 (2d ed. 1977);

107, pp. 142-

As Hoxie Dep. Ex. 5;

43; 108 pp. 90-

As LaFromboise Dep. Ex. 10 ;

91 ;

As Nunberg Dep. Ex. 45

92, pp. 168-69

N/A Definition

As Nunberg Dep. Ex. 15: Webster’s New Collegiate

83, pp. 121-22;

Dictionary 961 (1980);

(dup)

As Hoxie Dep. Ex. 8

108, pp. 11-12

N/A Definition

As Nunberg Dep. Ex. 18: Am. Heritage Dictionary of the 83, pp. 129-30

English Language 1514 (1st ed. 1976)

N/A Definition

As Nunberg Dep. Ex. 19: Am. Heritage School Dictionary 83, pp. 132-33;

(1977);

(dup) 107, pp.

As Hoxie Dep. Ex. 3;

136-37; 108,

As LaFromboise Dep. Ex. 8

pp. 86-87

N/A Definition

As Hoxie Dep. Ex. 7: Am. Heritage Dictionary of the

108, pp. 8-9;

English Language 1082 (1981);

(dup)

As Nunberg Dep. Ex. 44

92, pp. 166-67

ENCYCLOPEDIAS

1

Encyclopedia Indians, North American, Encyclopӕdia Britannica 454- 62, pp. 131-63;

entry

82 (11th ed. 1910);

(dup)

As Nunberg Dep. Ex. 36

86, pp. 4-36

FILM FOOTAGE (DVD OF VHS-FORMATTED MATERIAL)

93 NFL Films

Lombardi (DVD not included with submissions)

95, p. 50

94 NFL Films

Warpath: The Washington Redskins’ Road to Super Bowl 95, p. 52

XXII (1988) (on file with TTAB)

95 NFL Films

Hail to the Redskins 1937-1988 (1988) (on file with

95, p. 54

TTAB)

96 NFL Films

Washington Redskins (1961) (DVD not included with

95, p. 56

submissions)

97 NFL Films

Time After Time: The 1967 Washington Redskins in

95, p. 58

Action (1968) (on file with TTAB)

98 NFL Films

Three Cheers for the Redskins (1971) (on file with TTAB) 95, p. 60

99 NFL Films

The AFC and NFC Championships (1973) (mislabeled; on 95, p. 62

file with TTAB)

100 NFL Films

The World Championship of Professional Football [Super 95, p. 64

Bowl VII] (1973) (on file with TTAB)

101 NFL Films

Promises to Keep: The Washington Redskins Season of 95, p. 66

‘74 (1974) (on file with TTAB)

110

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

102 NFL Films

Return Engagement (1979) (mislabeled; incomplete;

95; p. 68

without opening credits; no sound; on file with TTAB)

103 NFL Films

Super Bowl XVII: Hog Day Afternoon (1983) (on file with 95, p. 70

TTAB)

104 NFL Films

Ambush at Super Bowl XXII (NFL Films 1988) (on file 95, p. 72

with TTAB)

105 NFL Films

Super Bowl XXVI—Washington 37, Buffalo 24 (1992)

(DVD not included with submissions)

N/A Footage

NR 5: Excerpts from video previously submitted as

excerpts

Exhibits 93 through 105 (on file with TTAB)

N/A Footage

Courtney Dep. Ex. 3: Footage from major motion picture

excerpts

productions using the term “redskin”

GAME PROGRAM PAGES (PITTSBURGH STEELERS)

95, p. 74 101, p. 147 105, p. 36

15 Program front Sept. 29, 1957 (from Pittsburgh Steelers Football Club); 70, pp. 49,

page

(dup) 68;

As Cooke Dep. Ex. 12 (part)

66, p. 47

GAME PROGRAMS, PRESS GUIDES & FACT BOOKS, OFFICIAL MAGAZINES,

YEARBOOKS & ANNIVERSARY ISSUES (WASHINGTON REDSKINS)

14 Program front Opening Day 1954 – Redskins v. NY Giants 12/11/60

69, pp. 66-72

covers

(non-consecutive)

70, pp. 4-26

15 Program front Undated

70, pp. 29-42,

covers

44, 46-47;

As Cooke Dep. Ex. 12 (part)

(dup) 66, pp.

30-46

15 Program front Opening Day 1938, Opening Day 1950 covers

70, pp. 43, 45

15 Program front Sept. 21, 1958 (includes cartoon reprinted from Evening 70, p. 48;

cover

Star (Wash.), Dec. 17, 1936);

(dup)

As Cooke Dep. Ex. 12 (part)

66, p. 49

29 Press guide

Redskin Movie, in 1948 Washington Redskins press

50, p. 42

(partial)

guide, p. 26

29 Fact book

1949 Redskins, front cover, marching band photo, pp. 40- 50, pp. 43-45

(partial)

41

29 Fact book

1950 Redskins, front cover

50, p. 46

front cover

29 Fact book

1951 Redskins, front cover

50, p. 47

front cover

29 Fact book

1952 Redskins, front cover, marching band, at 13

50, pp. 48-49

(partial)

29 Fact book

1953 Redskins front cover, marching band, at 12-13

50, pp. 50-52

(partial)

29 Fact book

1954 Wash. Redskins, front cover, marching band, at 14 50, pp. 53-54

(partial)

111

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

29 Fact book

1955 Wash. Redskins, front cover, marching band, at 12 50, pp. 55-56

(partial)

29 Fact book

1956 Prof’l Football, front cover, Redskins club directory, 50, pp. 57-61

(partial)

Do You Remember? 1937, photos (illegible), and article on

half-time show

29 Program

S.F. 49ers v. Wash. Redskins, Aug. 26, 1956 front cover, 50, pp. 62-63

(partial)

team photo with autographs and Indian caricature

29 Fact book

1957 Wash. Redskins, front cover, and marching band

51, pp. 4-5

(partial)

photo, at 16

29 Program

S.F. 49ers v. Wash. Redskins, Aug. 25, 1957 front cover, 51, pp. 6-7

(partial)

team photo with autographs and Indian caricature

29 Fact book

1958 Wash. Redskins, front cover, entertainment

51, pp. 8-11

(partial)

program article, two band photos, fight song lyrics

29 Program

Redskins v. Bears, Sept. 21, 1958 front cover

51, p. 12

29 Fact book

1959 Wash. Redskins, various photos of marching band, 51, pp. 13-16

(partial)

players, and Redskin board members, fight song lyrics

29 Fact book

1960 Wash, Redskins, front cover, fight song lyrics,

51, pp. 17-23

(partial)

marching band photos, history page, club directory

29 Program

Redskins v. N.Y. Giants, Oct. 1, 1961 front cover,

51, pp. 24-27

(partial)

Ourisman Chevrolet ad, WTOP Radio game coverage

listing, VW ad

29 Magazine

Redskins v. Colts, Nov. 26, 1961 front cover

51, p. 28

cover

29 Magazine

Merry Christmas 1961, front cover

51, p. 29

cover

29 Magazine

Redskins v. Steelers, Dec. 10, 1961 front cover

51, p. 30

cover

29 Program

1962 Wash. Redskins, front cover, inside article on mid- 51, pp. 31-34

(partial)

field matinees (marching band)

29 Program

Silver Anniversary Redskins, front cover, marching band 51, pp. 35-36

(partial)

photo

29 Magazine

Redskins v. Cardinals, Sept. 30, 1962, front cover,

52, pp. 4-14

(partial)

Conducts the Band, Who’s Ahead? The Offense and

(dup pages)

Defense are in Hot Pursuit, Girls! Girls! Girls! Aren’t They

Something’, Long Time No See, Signals On!, & Teepee

Talk, REDSKINS (Magazine), Sept. 30, 1962, at 1, 3, 5, 9,

16, 49

29 Magazine

Redskins v. Rams, Oct. 7, 1962, front cover, Snead to

52, pp. 15-20

(partial)

Mitchell Redskins Passing Combo Dazzles Fans and Foes, (dup pages)

Dancing Indians, North Carolina Day announcement,

REDSKINS (Magazine), Oct. 7, 1962, at 1, 15, 26

29 Magazine

Redskins v. Cowboys, Nov. 4, 1962 front cover

52, p. 21

cover

112

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

29 Magazine

Redskins v. Browns, Nov. 11, 1962 front cover

52, p. 22

cover

29 Magazine

Redskins v. Giants, Nov. 25, 1962, front cover, & Midfield 52, pp. 23-24

(partial)

Matinee featuring marching band and Redskinettes, at

21

29 Magazine

Redskins v. Eagles, Dec. 2, 1962 front cover

52, p. 25

cover

29 Magazine

Merry Christmas 1962, front cover

52, p. 26

cover

29 Fact book

1963 Wash. Redskins front cover, photo entitled Ambush, 52, pp. 27-28

(partial)

at 15

29 Magazine

Redskins v. Cowboys, Sept. 29, 1963, front cover, The

52, pp. 29-31

(partial)

Experts are Looking for Help Eastern Title Race is a Fans

Delight, & Matinee at Midfield featuring marching band

and Redskinettes, at 1, 11

29 Magazine

Redskins v. Giants, Oct. 6, 1963, front cover, Time for a 52, pp. 32-35

(partial)

Change There’s no Whammy Like a Giant Whammy,

photos entitled Midfield Ball & Hail to the Redskin, at 1,

50, 60

29 Magazine

Redskins v. Eagles, Oct. 13, 1963, front cover

52, p. 36

cover

29 Magazine

Redskins v. Cardinals, Oct. 27, 1963, front cover, WWDC 52, pp. 37-38

(partial)

advertisement, at 6

29 Magazine

Redskins v. Steelers, Nov. 17, 1963, front cover, Kilroy

53, pp. 4-7

(partial)

Reports: These Players are All-Americans, Matinee at

Midfield featuring marching band and Redskinettes, &

photo entitled Finders Keepers, at 1, 11, 52

29 Magazine

Redskins v. Colts, Dec. 1, 1963, front cover, Redskins Can 53, pp. 8-11

(partial)

Determine the Eastern Conference, Matinee at Midfield

featuring marching band, & photo entitled Chief Big

Music Man, at 1, 11, 43

29 Fact book

1964 Redskins front cover, WWDC advertisement,

53, pp. 12-16

(partial)

Signals On!, Bears Series History, at 10, 16, 59

(dup pages)

29 Magazine

Redskins v. Browns, Sept. 13, 1964, front cover, It’s Time 53, pp. 17-22

(partial)

for Our Foes to Show Their Colors, On the Warpath, &

(dup pages)

Matinee at Midfield featuring Redskinettes, at 1, 5, 11

29 Magazine

Redskins v. Cardinals, Oct. 4, 1964, front cover

53, p. 23

cover

29 Magazine

Redskins v. Eagles, Oct. 11, 1964, front cover

53, p. 24

cover

29 Magazine

Redskins v. Bear, Oct. 25, 1964, front cover, On the

53, pp. 25-26

(partial)

Warpath, at 5

29 Magazine

Redskins v. Cowboys, Nov. 22, 1964, front cover

53, p. 27

cover

113

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

29 Magazine

Redskins v. Giants, Nov. 29, 1964, front cover, Today’s

53, pp. 28-30

(partial)

Draft is All Work and No Play, & On the Warpath, at 1, 5

29 Magazine

Redskins v. Steelers, date illegible, front cover, On the

53, pp. 31-32

(partial)

Warpath, at 5

29 Press guide

1965 Redskins, front cover

53, p. 33

front cover

29 Magazine

Redskins v. Browns, Sept. 19, 1965, front cover, On the 53, pp. 34-37

(partial)

Warpath, Marriott advertisement & Coia Wins Shrine

(dup pages)

Award, at 5, 24, 43

29 Magazine

Redskins v. Cardinals, Oct. 10, 1965, front cover

54, p. 4

cover

29 Magazine

Redskins v. Colts, Oct. 17, 1965, front cover

54, p. 5

cover

29 Magazine

Redskins v. Cowboys, Nov. 28, 1965, front cover, &

54, pp. 6-7

(partial)

Kann’s advertisement, at 29

29 Magazine

Redskins v. Giants, Dec. 12, 1965, front cover

54, p. 8

cover

29 Magazine

Redskins v. Steelers, Dec. 19, 1965, front cover, Here are 54, pp. 9-11

(partial)

the Redskins Stars of Tomorrow, & Kann’s advertisement

at 3, 29

29 Press guide

1966 Redskins, front cover

54, p. 12

front cover

29 Magazine

Redskins v. Browns, Sept. 11, 1966, front cover, National 54, pp. 13-17

(partial)

Bohemian Beer, Herson’s, Walton & Hoke Commercial

Art, & Hot Shoppes advertisements, at 13, 53, 78, 81

29 Magazine

Redskins v. Steelers, Oct. 2, 1966, front cover

54, p. 18

cover

29 Magazine

Redskins v. Falcons, Oct. 9, 1966, front cover

54, p. 19

cover

29 Magazine

Redskins v. Cardinals, Oct. 23, 1966, front cover,

54, pp. 20-21

(partial)

Redskinettes photo, at 32

29 Magazine

Redskins v. Cowboys, Nov. 13, 1966, front cover

54, p. 22

cover

29 Magazine

Redskins v. Giants, Nov. 27, 1966, front cover

54, p. 23

cover

29 Magazine

Redskins v. Eagles, Dec. 18, 1966, front cover

54, p. 24

cover

29 Magazine

1967 Redskins Football Magazine, front cover

54, p. 25

cover

29 Press guide

1967 Redskins, front cover, listed game schedule, fight

54, pp. 26-30

(partial)

song lyrics, history by key dates, at 1, 3, 7

(dup pages)

29 Program

Redskins v. N.Y. Giants, Oct. 1, 1967 front cover, Tepee 55, pp. 4-6

(partial)

Pow-Wow, at 78-79

114

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Ex.

Ref. No.

29 Magazine

Redskins v. Colts, Oct. 29, 1967, front cover, photo of

55, pp. 7-10

(partial)

marching band, & Nat’l Bohemian Beer advertisement

(dup pages)

29 Magazine

1968 Redskins Football Magazine, front cover

55, p. 11

cover

29 Press guide

1968 Redskins, front cover

55, p. 12

front cover

29 Magazine

Redskins v. Steelers, Oct. 13, 1968, front cover, photo

55, pp. 13-14

(partial)

entitled Here comes No. 9 (also shows marching band), at

75

29 Magazine

Redskins v. Steelers, Nov. 17, 1968 (not on copy),

55, p. 15

photo

Cowboys and Redskins are the Best Western Ever

(partial), at 5

29 Magazine

Photo entitled Let It Snow; Let It Snow, at 5; photos of

55, pp. 16-17

photo

Redskinettes, at 81, undated

29 Press guide

1969 Redskins, front cover

55, p. 18

front cover

29 Magazine

Redskins v. Brown, Sept. 6, 1969, front cover, Nat’l

55, pp. 19-21

(partial)

Bohemian Beer & Am. Sec. & Trust Co. advertisements

29 Magazine

Redskins v. Giants, Oct. 19, 1969 (not on copy), front

55, p. 22

cover

cover

29 Press guide

1970 Redskins, front cover, & game schedule listing, at 1 55, pp. 23-24

(partial)

29 Magazine

Am. Sec. & Trust Co. advertisement, Pro! Magazine, Oct. 55, p. 25

advertisement 11, 1970 (not on copy), at 7

29 Magazine

Redskins v. Cardinals, Dec. 20, 1970, front cover, Pro!

55, p. 26

cover

Magazine

29 Press guide

1971 Redskins, front cover, & 1970 final league standings 55, pp. 27-28

(partial)

29 Magazine

1971 Redskins Football Magazine, front cover, Redskins 55, pp. 29-30

cover

Magazine table of contents, undated, at 3

29 Magazine

1972 Redskins, front cover, table of contents, Sept. 24,

73, pp. 4-5

(partial)

1972, at 3

29 Magazine

Table of contents, & What’s in a Nickname, Pro!

73, pp. 6-9

(partial)

Magazine, Nov. 20, 1972, at 3, 3A-5A

29 Magazine

Division Playoff: Redskins vs. Green Bay Packers, front 73, pp. 10-14

(partial)

cover, table of contents, photo entitled Game XIV—

(dup page)

Buffalo Bills vs. The Redskins, Pro! Magazine, Dec. 24,

1972, at 3, 26-27

29 Magazine

Redskins vs. Cardinals, Pro! Magazine, Oct. 21, 1973 (not 73, pp. 15-18

(partial)

on copy), front cover, & photo entitled Game 4—Cowboys (dup page)

and Indians, at 83, photo entitled Game 4—Cowboys

Scalped, at 85, photo entitled Game 4—The Promised

Land, at 86

115

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NR Entry Type

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Ex.

Ref. No.

29 Magazine

Redskins vs. Giants, front cover, Morris Siegel, George

73, pp. 19-24

article

Preston Marshall: Master Showman, Mastermind, Pro!

Magazine, Dec. 2, 1973, at 3C-5C, 7C

29 Magazine

Redskins vs. Eagles, front cover, table of contents, at 3, & 73, pp. 25-31

(partial)

photo under heading Game 15—Disaster in Dallas, at 39- (dup page)

41, Pro! Magazine, Dec. 16, 1973

29 Magazine

1974 Redskins, front cover, Redskins vs. Cardinals, front 74, pp. 4-8

(partial)

cover, table of contents, News & Notes from Around the

NFL, Pro! Magazine, Sept. 22, 1974, at 5, 16-17

29 Magazine

Redskins vs. Giants, front cover, News & Notes, Pro!

74, pp. 9-10

(partial)

Magazine, Sept. 28, 1975, at 6

29 Magazine

Table of contents, partial article with caricature, Pro!

74, pp. 11-12

(partial)

Magazine, Nov. 23, 1975, at 7, 11

29 Yearbook

Redskins ’76 Yearbook, front cover, table of contents,

74, pp. 13-16

(partial)

photo of marching band, It’s Halftime (photo illegible), at

85

29 Yearbook

Redskins ’77, front cover, photo showing team helmets, 74, pp. 17-19

(partial)

advertisements

29 Press guide

1970s team & coaching achievements, at 94

74, p. 20

(page)

29 Press guide

1979 Redskins, front cover, & Jefferson Hotel

74, pp. 21-22

(partial)

advertisement

29 Magazine

Redskins Edition, Dallas v. Washington, front cover, &

74, pp. 23-24

(partial)

Greenhouse Lowes L’Enfant Plaza Hotel advertisement,

Pro! Magazine, Sept. 8, 1980

29 Magazine

Redskins Edition, New Orleans v. Washington, front

74, pp. 25-26

(partial)

cover, & Greenhouse Lowes L’Enfant Plaza Hotel

advertisement, Pro! Magazine, Oct. 26, 1980

29 Magazine

Redskins Edition, St. Louis v. Washington, front cover, & 74, pp. 27-29

(partial)

photos, Pro! Magazine, Nov. 1, 1981

(dup page)

29 Yearbook

1982 NFL Champion Redskins , The Season of Respect, 74, pp. 30-31

(partial)

front cover, Leonard Shapiro, At RFK, the Crowds were

Pleasers All Season, undated

29 Yearbook

Hail to the Redskins, Official 1983 Team Yearbook, front 56, pp. 4-9

(partial)

cover, photos and one article

29 Program

Gameday, front cover, Ronn Levine, Redskins Band . . . 56, pp. 10-13

(partial)

NFL’s First and Still the Best, at L41, Evans

(dup page)

advertisement featuring Redskins’ merchandise, Aug. 12,

1983

29 Program

Photo entitled Three Cheers for the Redskinettes,

56, p. 14

photo

Gameday (not on copy), Sept. 18, 1983 (not on copy)

29 Program

Photos under title The Fan-atacism for the Redskins, & 56, pp. 15-16

photos &

cartoon, Gameday (not on copy), Nov. 27, 1983 (not on

cartoon

copy), at L-16, L-39

116

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NR Entry Type

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Ex.

Ref. No.

29 Yearbook

Hail to the Redskins, Official 1984 Team Yearbook, front 56, pp. 17-23

(partial)

cover, table of contents, fight song, photos of

(dup pages)

Redskinettes, singers, and marching band

29 Yearbook

Washington Redskins, Official 1985 Team Yearbook,

56, pp. 24-25

(partial)

front cover, & photo of marching band, at 6

29 Program

Gaithersburg (Md.) Redskins Fever, front cover, &

75, pp. 4-5

(partial)

marching band members, at 11, Aug. 20, 1985

29 Program

Gameday, front cover, Steve Guback, When It Came to

75, pp. 6-13

(partial)

Fightin’ Cowboys, No Redskin Flung Arrows Mightier

(dup pages)

than Talbert, & photos of stadium and marching band,

Oct. 19, 1986, at L19, L25, L55

29 Yearbook

Washington Redskins, Official 1987 Team Yearbook,

75, pp. 14-17

(partial)

front cover, & photos of Redskinettes & pageantry

29 Yearbook

1937-1986 Washington Redskins, Official 50th [1987]

75, pp. 18-20

(partial)

Anniversary Team Yearbook, front cover, reproduction of

historic cartoon, photo, & 1947 game advertisement for

Redskins vs. Giants at the Polo Grounds

29 Program

Gameday, front cover, table of contents, & reproduction of 75, pp. 21-23

(partial)

1958 program cover, Nov. 15, 1987, at 3, 19

29 Yearbook

Official Yearbook of the 1988 World Champion

75, pp. 24-25;

(partial)

Washington Redskins, front cover, & photos of marching 57, pp. 4-5 (dup

band

pages)

29 Press guide

1988 Washington Redskins, front cover, history by key

57, pp. 6-7

(partial)

dates, at 222

29 Program

The 12th Man advertisement for Redskin souvenirs in

57, p. 8

advertisement Aug. 15, 1988 issue of Gameday (not on copy)

29 Yearbook

Official 1989 Yearbook of the Washington Redskins, front 57, pp. 9-13

(partial)

cover, Paul Denfeld, Hail to the Band, & photos of

marching band, at 92-95

29 Press guide

1989 Washington Redskins, front cover, history by key

57, pp. 14-16

(partial)

dates, at 239-40

29 Program

Photos under title From Cheering to Charity . . . ,

57, p. 17

(partial)

Gameday (not on copy), Aug . 25, 1989 (not on copy), at 13

29 Program

Gameday, front cover, Paul Denfeld, Hail to the Band, & 57, pp. 18-21

(partial)

photos of marching band, Sept. 11, 1989, at 13, 15, 17

29 Yearbook

Washington Redskins Official 1990 Yearbook, front cover 57, p. 22

cover

30 Yearbook

1937-1986 Washington Redskins, Official 50th [1986]

58, pp. 5-27,

(complete)

Anniversary Team Yearbook

59, pp. 4-32,

76, pp. 4-27,

60, pp. 4-26,

61, pp. 4-18

117

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

N/A Yearbooks

Cooke Dep. Ex. 9: Washington Redskins, Official 1987

66, pp. 4-17

(partial)

Team Yearbook, Limited Edition, front cover, & & photos

of players in uniform, marching band, Redskinettes &

pageantry, & 1937-1986 Washington Redskins, Official

50th [1987] Anniversary Team Yearbook, images of 6

helmets bearing various logos, reproduction of historic

cartoon, articles, 1947 game advertisement for Redskins

vs. Giants at the Polo Grounds, fight song lyrics, & photos

of players in uniform, marching band, Redskinettes &

pageantry

LEGISLATIVE MATERIALS

90 Hearing

Comm. on Natural Res., Subcomm. on Nat’l Parks,

95, pp. 35-43,

summary & Forests & Public Lands, to authorize the construction,

45-46

statements

maintenance, and operation of a new stadium in the

District of Columbia, and for other purpose, Nov. 5, 1993

LYRICS, MUSIC FOLIOS & SHEET MUSIC

27 Music folio

Al Stillman & Al Jacobs, Rosie the Redskin, 1938

50, pp. 26-31

28 Lyrics (partial)

Hail to the Redskins! lyrics, in Washington Redskins’ 50, p. 33 50th Anniversary Yearbook

28 Sheet music Corinne Griffith (Marshall) & Barnee Breeskin, Hail to 50, p. 36 the Redskins

28 Lyrics

Hail to the Redskins! Lyrics, in 1962 Washington Redskins game program

50, pp. 37-38

28 Lyrics

Hail to the Redskins! Lyrics, in Pro!, Nov. 21, 1971, at 3 50, p. 39

6

Marketing

materials

22 Misc.

22 Misc.

25 NFL Films
transcript (partial)

MARKETING MATERIALS
Images of Redskins merchandise (with other NFL team merchandise)
MISCELLANEOUS
Peter Tamony Collection, clippings, undated & typed definitions, unsourced, from W. Hist. Manuscript Collection, Univ. of Mo.
Red Indians entry from Brewer’s Dictionary of Phrase & Fable, undated, pp. 757-59, from W. Hist. Manuscript Collection, Univ. of Mo.
Pages 1 and 9 of narration tracked on HAIL TO THE REDSKINS 1937-1988 (NFL Films), at 0:33-3:25, 18:3721:42, the DVD of which was also submitted as Petitioners’ Notice of Reliance, Ex. 95

67, pp. 165-82 72, p. 33 72, p. 34-35 50, pp. 19-20

32 File folder label (print)

Pro-Football, Inc. Re: Indian Complaints (re: use of name 77, p. 5 “Redskins”), William & Connelly (law firm)

118

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

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Ex.

Ref. No.

173 Internet

Copy Editor Home Page, https://www.copyeditor.com

109, p. 173

homepage

(accessed Sept. 2, 1997)

N/A Note

Gross Dep. Ex. 32.006: Mar. 1972 meeting attendance list 105, p. 69

N/A Coin
N/A Court document
N/A Court document
N/A Brochure
N/A Packaging

LaFromboise Dep. Ex. 7: Indian head nickel (1937); As Stevens Dep. Ex. 7
Ross Dep. Ex. 165: Prefiled Direct Testimony of Dr. Jacob Jacoby, Mead Data Central, Inc. v. Toyota Motor Sales, U.S.A., Inc., CA No. 88-2854 (S.D.N.Y.)
Ross Dep. Ex. 167: Initial Decision, FTC v. Kraft (Apr. 3, 1989) (partial) & related material
Stevens Dep. Ex. 11: Bureau of Indian Affairs, U.S. Dep’t of the Interior, You Asked About . . . Indian Ancestry, with BIA Area Office Listing
Stevens Dep. Ex. 13: Image of Argo-brand corn starch box

108, p. 85; (dup) 94, p. 107 93, pp. 51-83
93, pp. 98-103 94, pp. 115-16
94, p. 121

N/A Packaging

Stevens Dep. Ex. 14: Image of Land O’Lakes-brand carton 94, p. 123

PERIODICAL MATERIALS—ADVERTISING/MARKETING BY THIRD PARTIES,

INCLUDING ITEMS IN THIRD-PARTY PUBLICATIONS

11 Newspaper

Hecht’s Dep’t Store advertisement, undated and

68, p. 43

advertisement unidentified publication

11 Newspaper

Woodward & Lothrop advertisement, WASH. POST, date 69, pp. 7-8

advertisement illegible

16 Newspaper

Janie advertisement (Broadway show), N.Y. TIMES, Oct. 70, p. 62

advertisement 29, 1942 (handwritten)

16 Navy Bureau Discount tickets sponsored by Navy for Redskins v.

70, p. 66

of Personnel Browns at Griffith Stadium, Nov. 17, 1957

brochure

16 Newspaper

Charlotte News, The Redskins are Coming!, Event

70, p. 69

announcement announcement for Aug. 29, 1959

20 Poster

Concerned Am. Indian Parents, How Would You Like It? 48, p. 89

(shows pennants with racial slurs & Cleveland Indians

with Chief Wahoo)

80 Brochure

HONOR, Inc., “What is the Point to all of this

91, pp. 203-06

Protesting? . . .” A Primer, 1992

N/A Brochure

Hirschfelder Dep. Ex. 2: Brochure of consultation

106, pp. 13-16

services in Native Am. Studies

15 Cartoon

PERIODICAL MATERIALS—CARTOONS
Jim Berryman, Wonder How We’ll Get Along, reprinted from Wash. Star, 1937, undated and unidentified source (on Redskins move to DC from Boston); As Cooke Dep. Ex. 12 (part)

70, p. 28;
(dup) 66, p. 48

119

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NR Entry Type Ex.

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16 Cartoon

Jim Berryman, Hey! Are These Two Gonna Start Given’ 70, p. 51

Me Trouble?, undated and unidentified publication (circa 1940s) (on popularity of Georgetown/GW football versus

Redskins)

16 Cartoon

Jim Berryman, C’mon Out and Play Chief!, undated and 70, pp. 52,

unidentified publication (circa 1940s) (on injuries and

(dup) 55

trade rumors regarding Redskins)

16 Cartoon

Reinert cartoon, Rams to Fight Bring Cleveland its

70, p. 53

Second Pro Football Title, undated and unidentified publication (circa 1947) (on path to title)

16 Cartoon

Cartoon, undated and unidentified publication (point of cartoon is unknown)

70, p. 54

16 Cartoon

Jim Berryman, Red, White—And Blue!, undated and
unidentified publication (circa 1940s) (Redskins gloom over loss of Eastern title game)

70, p. 56

16 Cartoon

Jim Berryman, A Bold Challenge—With Reservations!,

70, p. 57

undated and unidentified publication (circa 1940s) (team

limitations)

16 Cartoon

Crockett, The Vanishing American, EVENING STAR (Wash.), Dec. 9, 1940 (Redskins lose 73-0)

70, pp. 58-59

16 Cartoon

Jim Berryman, Still Sitting—But Not Pretty!, EVENING STAR (Wash.), Nov. 17, 1941 (handwritten) (Bears
challenging Redskins); As Cooke Dep. Ex. 12 (part)

70, p. 60
(dup) 66, p. 27

16 Cartoon

Jim Berryman, Hang On Boy, He Might Stumble, WASH. POST, Nov. 17, 1941 (handwritten) (Redskins unafraid of
Giants); As Cooke Dep. Ex. 12 (part)

70, p. 61;
(dup) 66, p. 28

16 Cartoon

Jim Berryman (caption cut-off), EVENING STAR (Wash.), Oct. 19, 1943 (handwritten) (point of cartoon is unknown);
As Cooke Dep. Ex. 12 (part)

70, p. 64; (dup) 66, p. 24

16 Cartoon

Jim Berryman, No Time For Shadow Boxing, EVENING STAR (Wash.), Nov. 14, 1943 (handwritten) (Redskins v. Lions);
As Cooke Dep. Ex. 12 (part)

70, p. 65;
(dup) 66, p. 23

16 Cartoon

Jim Berryman, Full of Food—And Fight!, unidentified

70, p. 67;

publication, Nov. 24, 1950 (handwritten) (Bears winning

history); As Cooke Dep. Ex. 12 (part)

(dup) 66, p. 29

16 Cartoon

Redskins 1960, undated and unidentified publication (team wins); As Cooke Dep. Ex. 12 (part)

70, p. 70; (dup) 66, p. 25

120

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NR Entry Type

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Ex.

Ref. No.

16 Cartoon

F. Becerra, The Medicine Man, Yonkers Herald

70, p. 73

Statesman, Feb. 7, 1969 (Lombardi brings bottled GB

medicine to DC)

16 Cartoon

Viewpoints, FORT WORTH STAR TELEGRAM (Tex.), Nov.

70, p. 74;

21, 1979, at 14A (Indian runs away with the turkey as

prize);

(dup)

As Cooke Dep. Ex. 12 (part)

66, p. 26

16 Cartoon

Garner, Editorial, WASH. TIMES, 1988 (scalped man

70, p. 75

saying “I got tickets to the playoff!”)

16 Cartoon

Anne Arundel Viewpoints, BALT. SUN, Dec. 18. 1994, at 70, p. 76

B4 (Cooke on a rocking horse wishing for Laurel stadium)

22 Cartoon

The Indian Messiah [in Four Acts], ROCKY MTN. NEWS,

49, pp. 34-35

Nov. 19, 1890

22 Cartoon

High Lights of History: Colorado’s Indian Policy—1864, 72, p. 31

ROCKY MTN. NEWS, undated (Governor’s proclamation to

friendly Indians to gather at Indian Agencies and keep

away from hostile Indians)

22 Cartoon

Social Life in the Occident: A Western House-Warming,

72, p. 32

PUCK, undated (images suggestive of violence and

alcoholism)

PERIODICAL MATERIALS —SOURCED & DATED

11 Newspaper

Redskins’ Offensive Line Ready to Hit Warpath in Old

68, p. 73

photo &

D.C. Today, TIMES-HERALD, Oct. 12, 1952

headline

11 Newspaper

Dave Slattery, Tribe Quarterbacks Go Back to School,

68, p. 75

article

WASH. DAILY NEWS, Aug. 8, 1952, first part of article only

(partial)

11 Newspaper

Dave Slattery, The Redskins Resembled Cigar Store

68, p. 83;

article

Indians, WASH. DAILY NEWS, Oct. 6, 1958;

(dup)

As Nunberg Dep. Ex. 43 (part)

92, p. 157

11 Newspaper

N. P. Clark, Speedy Steeds Outrun, Outgun Injuns, BALT. 68, pp. 84-85

article

NEWS-POST, Oct. 27, 1958

11 Newspaper

Tom Yorke, Redskins First in Trail-Blazing, WASH. DAILY 68, p. 86

article

NEWS, Apr. 14, 1959

11 Newspaper

Max Muhleman, Beware, Colts! Redskins in Ambush,

68, p. 87

article

CHARLOTTE (N.C.) NEWS, Nov. 7, 1959

11 Newspaper

Tom Yorke, Brass Seeks Answers, WASH. DAILY NEWS,

68, p. 92

article

Nov. 10, 1960

11 Newspaper

Tom Yorke, Colts Are Scalping Redskins at the Gate,

68, p. 93;

article

WASH. DAILY NEWS, May 23, 1961;

(dup)

As Nunberg Dep. Ex. 43 (part)

92, p. 160

11 Newspaper

The New Indian Rope Trick, WASH. DAILY NEWS, July 31, 68, p. 94

photo & ledger 1961

121

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Ex.

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11 Newspaper

Tom Yorke, Our Injuns Get Tuneup; Sonny the Spark

68, p. 100

article

Plug, WASH. DAILY NEWS, Oct. 25, 1965

11 Newspaper

Skins Scalp Giants, 23-7, DAILY NEWS (N.Y.), Nov. 8,

68, p. 101;

headline &

1965;

photo

As Nunberg Dep. Ex. 43 (part)

92, p. 161

11 Newspaper

Tom Yorke, Directors Meet Next Week; McPeak is Facing 68, p. 102;

article

the Tomahawk, WASH. DAILY NEWS, Dec. 16, 1965, at E-

1, E-4;

(dup)

As Nunberg Dep. Ex. 43 (part)

92, p. 165

11 Newspaper

Tom Yorke, Did Tribe Panic on Paluck Deal?, WASH.

68, p. 103

article

DAILY NEWS, Aug. 18, 1966, at 36

11 Newspaper

Dave Brady, Redskins Scalp 49ers, Plan Cowboy Ambush, 68, p. 104

article

PRO FOOTBALL WEEKLY, Nov. 13, 1967, at 5, copy illegible

11 Newspaper

Bob Levey, A Redskin ‘Salesman’ Gets Scalped, WASH.

69, p. 9

article

POST, Oct. 21, 1985 (handwritten)

11 Newspaper

Martie Zad, Redskins Back on the Warpath, WASH. POST, 69, p. 11;

article

Aug. 5, 1990 (handwritten);

(dup)

As Nunberg Dep. Ex. 43 (part)

92, p. 164

12 Newspaper

ACC Won’t Puff on GP’s Peace Pipe, WASH. DAILY NEWS, 69, p. 31

article

Dec. 3, 1949, at 19

12 Newspaper

EVENING STAR (Wash.), Sept. 22, 1959, at A-17

69, p. 39

photo

12 Newspaper

Tom Seppy, Skins’ Pow, Wow Fading?, DALLAS MORNING 69, p. 43

article

(handwritten), Nov. 21, 1978 (handwritten)

13 Newspaper

Blain Harden, 500,000 Frenzied Fans Revel in the Rain 69, p. 48

photo, article for Redskins, WASH. POST, at A1

(partial)

13 Newspaper

Patricia E. Bauer & John Mintz, Unbelievers in an Alien 69, pp. 49-50

article, photos Land, WASH. POST, Jan. 11, 1981, at A8

13 Newspaper

June Cook, The Chief of Victory, GREAT TIMES, Aug. 25, 69, p. 51

article, photo 1983, at 7

13 Newspaper

Martin Kimel, The Lullaby of Washington, WASH. POST, 69, p. 57

article, photo Jan. 31, 1991 (handwritten)

13 Newspaper

Valerie Lynn Dorsey, Indian Mascots Stir Sensitivity

69, p. 58

article

Debate, USA TODAY, Oct. 23, 1991 (handwritten)

(partial)

13 Newspaper

Kara Swisher, Undefeated ‘Skins Fans on the Store Path, 69, p. 59

article, photo WASH. POST, Oct. 26, 1991 (handwritten)

13 Newspaper

Bob Molinaro, Redskins Leave No Doubts, Virginian-Pilot 69, pp. 61-62

article, photo (Va.-N.C.), Jan. 27, 1992

13 Newspaper

Lorraine Woellert, Movable Feats: Redskins Fans Bring 69, p. 64

article, photos Party to Parking Lots at RFK, Sept. 5, 1994, at C4

122

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16 Newspaper

Tom Yorke, Jurgensen to be Out Two to Three Weeks,

70, p. 71

article &

WASH. DAILY NEWS, Aug. 5, 1964, at 39 (cartoon shows

cartoon

caricature of QB with arm around Indian caricature)

16 Newspaper

Tom Yorke, Redskins Don’t Figure to be as Nervous

70, p. 72

article

Without Pervis, WASH. DAILY NEWS, Oct. 14, 1965

(handwritten)

17 Newspaper

Redskins’ Marshall Under Fire Again, WASH. DAILY

48, p. 5

article

NEWS (handwritten), Jan. 18, 1957 (handwritten)

17 Newspaper

Jack Eisin, Marshall Warned on Color Bar, & Dave

48, p. 8

articles

Brady, Marshall Willing to Debate with President on

Negro Players, WASH. POST, Mar. 25, 1961

17 Newspaper

New Look for the Redskins, AUGUSTA CHRONICLE (Ga.)

48, p. 11

article

(handwritten), Mar. 29, 1961 (handwritten)

17 Newspaper

This Morning . . . with Shirley Povich, WASH. DAILY

48, p. 12

article

NEWS, Apr. 27, 1961 (handwritten)

17 Newspaper

Dave Brady, Administration Chided Over ‘Skins, WASH 48, p. 13

article

POST, May 5, 1961 (handwritten)

17 Newspaper

Gene Markham, Skins’ Owner Knows About ‘African

48, p. 14

article

Problem’, TIMES-HERALD (Newport News, Va.), May 12,

1961, at 2

17 Newspaper

Udall Standing Pat on Integration of Redskins this Fall, 48, p. 15

article

& Tom Yorke, Grid Game on TV Here, WASH. DAILY

NEWS, June 27, 1961

17 Newspaper

Lewis F. Atchison, Marshall Loses High First with Udall 48, pp. 16-17

article

on Racial Issue: NFL Head gets Redskin Pledge to use

Negros, EVENING STAR (Wash.), Aug. 15, 1961

17 Newspaper

UPI, George Marshall, Redskin Chief, Dies, PITTSBURGH 48, p. 18

article

PRESS (Pa.), Aug. 10, 1969

17 Newspaper

Dave Brady, Mitchell Broke Color Line and Records for 48, p. 19

article

Redskins, JERSEY JOURNAL (NJ), Sept. 9, 1969

18 Newspaper

Tom Quinn, Redskins, Rednecks, WASH. DAILY NEWS,

48, p. 24

article

Nov. 5, 1971

18 Newspaper

Tom Quinn, Indians are Starting to Fight Back, WASH.

48, p. 27

article

DAILY NEWS, Jan. 28, 1972, at 72

18 Newspaper

Morris Siegel, Siegel at Large, WASH. STAR, Jan. 26, 1972 48, p. 28

article

(handwritten), at A-1, A-3

18 Newspaper

Russ White, No Reservations, Williams' Answer: What's 48, p. 29

article

In A Name?, EVENING STAR (Wash.), Jan. 27, 1972

18 Newspaper

Tom Quinn, Redskins Face Suit, & Tom Quinn, The

48, p. 30

article

Quest for Dignity, WASH. NEWS (handwritten), Feb. 18,

1972 (handwritten), at 107

18 Newspaper

Tom Quinn, What's in a nickname? In Washington, plenty 48, p. 31

article

of trouble, possibilities, WASH. DAILY NEWS

(handwritten), Feb. 29, 1972 (handwritten)

123

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

18 Newspaper

Tom Quinn, More on the Redskins, WASH. DAILY NEWS, 48, p. 32

article

Mar. 22, 1972

18 Newspaper

Tom Quinn, Williams, Indians in Showdown, WASH.

48, p. 33

article

DAILY NEWS, Mar. 30, 1972, at 53

18 Newspaper

Steve Guback, Indians Take On Williams, WASH. STAR

48, p. 34

article

(handwritten), Mar. 30, 1972 (handwritten)

18 Newspaper

Shelby Coffey III, Indians Open War on Redskins, WASH. 48, pp. 35,

article

POST, Mar. 30, 1972, at F1

(dup) 85

18 Newspaper

George Solomon, Redskins Keep Names, Will Change

48, p. 36

article

Lyrics, WASH. POST , July 18, 1972 (handwritten)

18 Newspaper

Steve Guback, Time Will Tell- Allen on Redskins: “Could 48, p. 37

article

be the Best,” EVENING STAR (Wash.), Nov. 14, 1972

18 Newspaper

Steve Guback, Dallas Favored by 6- Allen: No Letup Rest 48, p. 38

article

of the Way EVENING STAR (Wash.), Dec. 5, 1972

19 Letter to the Emily Thurocey, Change the Name, WASH. POST (typed), 48, p. 40

editor

Aug. 12, 1987 (typed)

19 Letters to the The Redskins’ Name (Cont’d.), Christopher Burke, Arthur 48, p. 41

editor

Stambler, WASH. POST, Aug. 28, 1987 (handwritten)

19 Newspaper

Tim Giago, If the Name Redskins Doesn't Bother Team

48, p. 42

editorial

Owner, How About Blackskins?, SIOUX FALLS ARGUS

LEADER (handwritten), Feb. 21, 1988 (handwritten)

19 & Newspaper

Leonard Shapiro, Offensive Penalty is Called on

(reprinted) 48,

23 article

‘Redskins’ - Native Americans Protest the Name, WASH. pp. 47-48;

POST, Nov. 3, 1991, at D1, D9

72, pp. 52-53

19 Newspaper

Benjamin Alexander Jr., Why This Football Lover Passed 48, p. 49

article

up the Super Bowl, WASH. POST, Feb. 23, 1992 [not on

copy]

19 Newspaper

Les Suzukamo, Indians Plan Super Protest of Redskins’ 48, p. 50

article

Name, ST. PAUL PIONEER PRESS, Jan. 22, 1992

19 Newspaper

K. R. Clark, What’s In a Name? A Redskin by . . . ,

48, p. 51

commentary PENTAGRAM, Feb. 6, 1992, at 10

19 Newspaper

Claude Lewis, The Name 'Redskins' is a Loser, PHIL.

48, p. 52

article

INQUIRER, Mar. 2, 1992

19 Newspaper

Vincent McCraw, Indians, Friends Huddle up on Effort to 48, pp. 53-54

article

Spike Redskins’ Name, WASH. TIMES, Mar. 4, 1992

(handwritten), at B1, B6

19 Newspaper

Dick Heller & Tom Knott, Should the Redskins Change 48, pp. 55-56

commentary Their Name, WASH. TIMES, Mar. 4, 1992 [not on copy], at

D1, D6

19 Newspaper

Leonard Shapiro, WTOP Won’t Say ‘Redskins’, WASH.

48, pp. 57-58

article

POST, Mar. 15, 1992 (handwritten), at D1, D13

19 Newspaper

Associated Press, NAACP Objects to ‘Redskins’; Chief

48, p. 59

article

Doesn’t, N. VA. DAILY (typed), Aug. 5, 1992 (typed)

124

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

19 Newspaper

Mayor favors renaming Redskins, WASH. TIMES, Aug. 24, 48, p. 64

article

1993

19 Newspaper

Suzanne Fields, Gridiron Tepee of Sensitivity, WASH.

48, p. 65

article

TIMES, Aug. 30, 1993, at E1, E4

19 Newspaper

Ruben Castaneda, Protesters Condemn Redskins Name, 48, p. 66

article

WASH. POST, Sept. 7, 1993 (handwritten)

19 Newspaper

Serge F. Kovaleski, Delays Push Back Stadium’s Chances 48, pp. 67-68

article

for 1995 Opening, WASH. POST, Oct. 28, 1993

(handwritten), at C1-C2

19 Newspaper

Mark Fitzgerald, Drop Indian Sports Terms, Minorities 48, p. 69

article

Say, EDITOR & PUBLISHER, Aug. 13, 1994

19 Newspaper

Richard Leiby, Bury My Heart at RFK – How the

48, pp. 70-74

article

Redskins Got Their Name and Why Just Maybe it Should

be Changed, WASH. POST, Nov. 6, 1994, at F1, F4-F5

20 Newspaper

Dartmouth Loses Its Indian Mascot, N.Y. TIMES, Oct. 12, 48, pp. 83-84

article

1969

20 Newspaper

Shelby Coffey III, Indians Open War on Redskins, WASH. 48, pp. 85-87

article

POST, Mar. 30, 1972, at F1

20 Magazine

Reprint of Calvin Trillin, U.S. Journal: Hanover, N.H.,

48, p. 88

article

The Symbol is a Symbol, NEW YORKER, May 7, 1979

20 Newspaper

Ron Martz, Stereotypes of Indians Ingrained in America, 48, pp. 90-91

article

ATL. J-CONST., Dec. 7, 1986 (handwritten), at 1A, 16A.

20 Newspaper

Don Boxmeye, Humboldt Urged to Leave Indians in

48, p. 92

article

Peace, ST. PAUL PIONEER PRESS DISPATCH, Nov. 29, 1987

20 Newspaper

Elmer M. Savilla, Sticks and Stones & Names All Hurt, 48, p. 96

article

LAKOTA TIMES, 1988

20 Publication

Associated Press, Group Calls Indian Name Racist,

48, p. 97

article

WATERTOWN PUBLIC OP. (handwritten), Jan. 1988

20 Publication

Associated Press, Indian Group Fights ‘Racist’ Team

48, p. 98

article

Names, ST. CLOUD DAILY TIMES (handwritten), Jan. 1988

[not on copy]

20 Newspaper

Mark Grossman, ‘Redskins’ Irks Indians; Protest Planned, 48, pp. 99-100

article

FAIRFAX J. (Va,), Jan. 21, 1988 (handwritten), A1, A6

20 Newspaper

Clarence Page, It'll Be the Broncos vs. a Racial Slur,

48, p. 101

editorial

CHICAGO TRIBUNE, Jan. 24, 1988, at C3

20 Newspaper

Paul O. Sand, Do Not Continue to Smear American

71, p. 4

editorial

Indians in Team Names, ST. PAUL PIONEER PRESS

DISPATCH, Jan. 28, 1988, at 17A

20 Newspaper

Pat Helmberger, Consider Religious Significance,

71, p. 6

commentary PIONEER (Bemidji, Minn. (handwritten)), Feb. 5, 1988

(handwritten)

20 Newspaper

Amy Brooks Baker, Redskins Won? Not if This Group has 71, p. 7

article

Anything to Say About it!, CHRISTIAN SCIENCE MONITOR,

Feb. 5, 1988

125

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

20 Newspaper

Bob Bernotas, Sports Corner, and D.C. Group Tackles the 71, pp. 8-9

editorial

Redskins, BALT. JEWISH TIMES, Feb. 12, 1988, at 64-65

20 Publication

Don Coldsmith, Horsin’ Around: Racism Topic of Athletic 71, p. 10

column

Concern, GRASS & GRAIN (Kan.), Mar. 8, 1988

20 Newspaper

Richard Cohen, Critic at Large: Redskin Reservations,

71, p. 11

editorial

WASH. POST, Apr. 17, 1988

20 Newspaper

Tim Thornton, No Humor Found in Ignorance,

71, pp. 12-13

editorial

WINCHESTER STAR (Va.) (handwritten), June 2, 1988

(handwritten)

20 Magazine

Rick Telander, This Was a Magic Year, SPORTS

71, p. 14

editorial

ILLUSTRATED, Dec. 26, 1988 (handwritten), at 168

20 Student

Sam Thorp, Mascot Could be Part of Bigger Problem, THE 71, p. 15

newspaper

PENN, Dec. 8, 1989, at 7

editorial

20 Newspaper

Colman McCarthy, Now It's Time for the Braves to Chop 71, p. 18

editorial

that Offensive Name, WASH. POST, Nov. 2, 1991, at A23

20 Newspaper

Nancy Butterfield (Chippewa Indian), Indians Still a

71, p. 22

editorial

Long Way From Racial Equality, SEATTLE TIMES, Jan.

21, 1991 (handwritten), at A13

20 Newspaper

Sen. Paul Simon, Plight of Native Americans Needs New 71, p. 23

commentary Understanding, CHAMPAIGN-URBANA NEWS-GAZETTE

(Ill.), Mar. 24, 1991

20 Newspaper

Steve Christllaw, Native Americans Sensitive to Slurs,

71, p. 27

commentary SEATTLE TIMES, Oct. 21, 1991, at D1, D6

20 Newspaper

Richard Keil, Redskins Next Target of Indians, RAPID

71, p. 28

article

CITY J. (S.D.), Oct. 23, 1991

20 Newspaper

Associated Press, ‘Chop’ Splits Braves Fans, RAPID CITY 71, p. 28

article

J. (S.D.), Oct. 23, 1991

20 Newspaper

Valerie Lynn Dorsey, Native Americans Say Teams Turn 71, pp. 29-31

article

People Into Mascots, USA TODAY, Oct. 23, 1991

20 Magazine

Rick Reilly, Let’s Bust Those Chops: Native Americans

71, p. 32

editorial

Have Every Reason to Object to the Way They’re

Caricatured by Teams, SPORTS ILLUSTRATED

(handwritten), Oct. 28, 1991 (handwritten), at 110

20 Newspaper

Pat Doyle, ‘Chop’ is Spreading, but Indians Disagree on 71, p. 21

article

What is Offensive Most Decry 'Redskins’ Nickname, STAR 71, pp. 33-35

TRIBUNE (Minn.), Nov. 1, 1991, at 2B

20 Newspaper

Elmer Savilla, ‘Redskins’ Should Go Says Virginia

71, p. 36

article

Governor, LAKOTA TIMES (not shown on copy), Nov. 6,

1991

20 Newspaper

Associated Press, Journalist Unprepared for Reservation 71, p. 37

article

Visit, FORUM (Fargo, N.D.), Nov. 20, 1991, at A5

20 Newspaper

Redskins, Braves: Listen to Those You've Offended, USA 71, p. 38

editorial

TODAY, Nov. 25, 1991

126

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

20 Magazine

Norris Hite Jr., Understanding and Respect, NSBE, Jan. 71, p. 43

editorial

1992, p. 12

20 Newspaper

Edward Lazarus, Redskins: What's in the Name, WASH. 71, p. 45

editorial

POST, Jan. 14, 1992 (handwritten)

20 Newspaper

Nick Coleman, Indian Nicknames Spark Column War,

71, p. 46

column

ST. PAUL PIONEER PRESS (Minn), Jan. 16, 1992

20 Newspaper

Bunty Anquoe, ‘Redskins’ New Site on Interior Land,

71, pp. 47-48

article

LAKOTA TIMES, Jan. 21, 1992, at A1-A2

20 Newspaper

Elmer Savilla, Real Indians Need to Tackle Mascot

71, p. 49

opinion

Issue," Lakota Times, Jan. 21, 1992, at A5

20 Newspaper

Randy Furst, Wellstone Urges End to Washington

71, p. 50

article

'Redskins', STAR TRIBUNE (Minn.), Jan. 23, 1992

20 Newspaper

Margaret Cohen, Indian Mascot Protest Starts, RAPID

71, pp. 51-52

article

CITY J. (S.D.), Jan. 24, 1992

20 Newspaper

Peter Lewis, Indian Principal No Redskin Fan, SEATTLE 71, pp. 53-54

article

TIMES, Jan. 26, 1992, at B1, B4

20 Newspaper

Leonard Inskip, Redskins: Good Team, Bad Name, STAR 71, p. 55

article

TRIBUNE (Minn.), Jan. 26, 1992

20 Newspaper

Eric Haase, 3,000 Protest at Super Bowl (photo) & 3,000 71, pp. 57-64

article &

Rally Against Racist Mascots, LAKOTA TIMES, Jan. 28,

photo

1992, at B1-B2

20 Newspaper

Tradition Shouldn’t Obscure Racism Against Indians,

71, p. 65

editorial

SEATTLE TIMES, Feb. 8, 1992 (handwritten), at A15

20 Newspaper

Kent Winters-Hazelton, Blake Lewis & Kathryn Tobias, 71, p. 66

editorial

A New Name for the Redskins, WASH. POST, Feb. 8, 1992

letters

(handwritten)

20 Newspaper

Robert C. Hunter, Continue to Educate the Ignorant, John 71, pp. 67-68

editorial

Pohlmann, We Can Communicate, Erik Bailey,

letters

Sometimes Even Minorities Miss the Point, Miriam

Helphill, Public Education Exposes False Traditions, Sen.

Paul Simon, Article ‘Excellent’, Ken Mitchell, Are There

Non-Racist Mascot Choices, Carter Nash, Reader Says to

‘Lighten Up!”, Helen Allen, Keep Being Vocal, & Peter

Pohl, Their Turn, WASH. POST, Feb. 8, 1992

(handwritten)

20 Newspaper

No More Braves or Redskins, SEATTLE TIMES, Feb. 15,

71, p. 69

article

1992

20 Newspaper

To Our Readers, OREGONIAN (Portland), Feb. 16, 1992

71, p. 70

note

20 Newspaper

Bunty Anquoe, D.C. Council to Consider ‘Redskins’

71, p. 71

article

Protest, LAKOTA TIMES, Mar. 4, 1992

20 Newspaper

Tony Kornheiser, By Any Other Name, WASH. POST, Mar. 71, p. 72

editorial

5, 1992 (not shown on copy)

127

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

20 Publication

Tim Sandler, Unsportsmanlike Conduct, In These Times, 71, pp. 73-74

article

Mar. 11-17, 1992

20 Newspaper

Andy Rooney, Redskins Blame Whites Too Much, DAILY 71, p. 75

commentary RECORD (N.J.) (handwritten), Mar. 11, 1992

(handwritten)

20 Publication

Tim Sandler, Chop, Chop Native Americans Fight Back 71, pp. 76, 79-

article

Against Racial Stereotyping, Boston Phoenix, Mar. 13,

80

1992

20 Newspaper

Bunty Anquoe, D.C. Radio Station Won’t Say ‘Redskins’, , 71, p. 77

article

LAKOTA TIMES (handwritten), Mar. 18, 1992

(handwritten)

20 Newspaper

Andy Rooney, A (Sort of) Apology to Indians, DAILY

71, p. 78

commentary RECORD (N.J.) (handwritten), Apr. 19, 1992 (handwritten)

20 Newspaper

Nick Coleman, Didja Even Notice How Some People Never 71, p. 81

commentary Learn, DAILY RECORD (N.J.), Apr. 20, 1992 (handwritten)

20 Newspaper

Eric Zorn, In Pros or Preps, 'Redskins' a Slur, CHI. TRIB., 71, p. 82

editorial

May 21, 1992

20 Newspaper

Avis Little Eagle, Protesters Meet Kansas 'Chiefs' at

71, pp. 83-84

articles

Training Camp, Mascots: A History of Cultural

Insensitivity, & A Chronology of the Mascot Controversy,

LAKOTA TIMES (handwritten), July 29, 1992

(handwritten), at B1-B2

20 Newspaper

A Slur Is a Slur, ALBUQUERQUE J. (N.M.),Sept. 12, 1992 71, p. 87

editorial

20 Newspaper

Avis Little Eagle, Action Taken to Chop ‘Redskins’

71, pp. 88-89

article

Trademark, LAKOTA TIMES, Sept. 16, 1992 (handwritten)

20 Publication

National Coalition Challenges Federal Trademark

71, p. 90

article

Registrations, THE CIRCLE, Oct. 1992

20 Newspaper

Jonathan Rand, It’s Time to Dump the Chop, Kansas City 71, pp. 91-92

editorial

Star, Nov. 13, 1992

20 Newspaper

John Killen, The Story of the Oregonian Decision, INDIAN 71, pp. 93-94

editorial letter COUNTRY TODAY (handwritten), Nov. 19, 1992

(handwritten), at A4

20 Newspaper

Barbara Reynolds, History Demands End to 'Redskins'," 49, p. 4

editorial

USA TODAY (handwritten), Feb. 5, 1993 (handwritten)

20 Newspaper

Jennifer Marklewicz, ‘Redskins' Banned by University

49, p. 5

article

Senate, MIAMI STUDENT, Apr. 13, 1993

20 Newspaper

Avis Little Eagle, Sen. Nighthorse Stalks Redskins,

49, p. 6

article

INDIAN COUNTRY TODAY, July 8, 1993, at A1-A2

20 Newspaper

Buntie Anquoe, 'Redskins' on the Run. Bill Seeking Name 49, pp. 7-8

article

Change, INDIAN COUNTRY TODAY, Aug. 1, 1993, at A1-A2

20 Newspaper

Terry Johnson, Minneapolis Star Tribune Specifies

49, p. 9

article

Mascot Policy, INDIAN COUNTRY TODAY, Feb. 10, 1994, at

A3

128

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

20 Newspaper

Terry Johnson, Minneapolis Star Tribune Discontinues 49, p. 9

article

Mascot Use, INDIAN COUNTRY TODAY (handwritten), Feb.

2, 1994 (handwritten)

20 Newspaper

Shawn Bluejacket, How About a Team Named the

49, p. 10

letter to the

Missoula Rednecks, INDIAN COUNTRY TODAY, Jan. 26,

editor

1995

21 Newspaper

Tim Giago, Using Sham Rituals to Boost Sports Teams

49, p. 13

editorial

Belittles Native Americans' Culture, ST. PAUL PIONEER

PRESS, Oct. 22, 1991

21 Newspaper

Tim Giago, Ignorance Adds Insult to Injury, LAKOTA

49, p. 14

editorial

TIMES, Oct. 30, 1991

21 Newspaper

Tim Giago, I Hope the Redskins Lose, NEWSWEEK, Jan.

49, p. 15

editorial

27, 1992, at 8

21 Newspaper

Tim Giago, Brave Redskins? Gee, Mr. Cooke, Very Bigot of 49, p. 16

editorial

You, LAKOTA TIMES, Feb. 4, 1992

21 Newspaper

Tim Giago, Mascot Issue Won't Go Away and Neither Will 49, p. 17

editorial

Indian People, LAKOTA TIMES, Apr. 1, 1992

22 Newspaper

Merritt Meets the Enemy, DAILY NEWS (Denv.)

49, pp. 19-21

article

(handwritten), Oct. 8, 1879 (handwritten)

22 Newspaper

Indian Massacre, ROCKY MTN. NEWS (handwritten), Jan. 49, pp. 22-23

article

1, 1882 (handwritten)

22 Newspaper

The Sand Creek Battle, CHICAGO TRIBUNE (handwritten), 49, pp. 24-25

article

Aug. 8, 1887 (handwritten)

22 Newspaper

Indians Ready to Fight, N.Y. TIMES (handwritten), Nov. 49, pp. 26-27

article

22, 1890 (handwritten)

22 Newspaper

Ready for Battle: the Rebellious Redskins, ASPEN DAILY 49, p. 28

article

TIMES, Nov. 29, 1890

22 Newspaper

A Bad Ute's Skull, ROCKY MTN. NEWS, Nov. 16, 1890

49, pp. 29-31

article

22 Newspaper

A Sioux Outbreak, ROCKY MTN. NEWS, Nov. 18, 1890

49, pp. 32-33

article

22 Newspaper

Troops Moving Forward, N.Y. TIMES (handwritten), Nov. 49, pp. 36-37

article

20, 1890 (handwritten)

22 Newspaper

The Ghost Dance, N.Y. TIMES (handwritten), Nov. 22,

49, p. 38

article

1890 (handwritten)

22 Newspaper

The Latest Indian News, DAILY NEWS (Denv.)

49, pp. 40-41

article

(handwritten), Nov. 23, 1890 (handwritten)

22 Newspaper

Dancers Threaten to Shoot, N.Y. TIMES (handwritten),

49, p. 42

article

Nov. 23, 1890 (handwritten)

22 Newspaper

To Ambush the Soldiers, N.Y. TIMES (handwritten), Nov. 49, pp. 43-46

article

24, 1890 (handwritten)

22 Newspaper

Abandoning the Craze, ROCKY MTN. NEWS (handwritten), 49, pp. 47,

article

Nov. 26, 1890 (handwritten);

(dup) 48;

As Nunberg Dep. Ex. 24

83, p. 147-48

129

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

22 Newspaper

Cowed by the Soldiers, N.Y. TIMES (handwritten), Nov.

49, pp. 49-52,

article

26, 1890 (handwritten);

(dup) 53-55;

As Nunberg Dep. Ex. 23

83, pp. 143-45

22 Newspaper

Montana Redskins, ROCKY MTN. NEWS (handwritten),

49, p. 56

article

Nov. 28, 1890 (handwritten)

22 Newspaper

To Disarm the Hostiles: Cavalry Under Orders for a Night 49, pp. 57-59

article

March, N.Y. TIMES, Nov. 29, 1890

22 Newspaper

The Messiah Craze, ROCKY MTN. NEWS, Dec. 1, 1890

49, p. 62

article

(handwritten)

22 Newspaper

Prowling Redskins, ROCKY MTN. NEWS, Dec. 11, 1890

49, p. 63

article

(handwritten)

22 Newspaper

Apache Excitement. The Redskins in New Mexico Hold a 49, p. 64

article

Ghost Dance, ROCKY MTN. NEWS, Dec. 12, 1890

(handwritten)

22 Newspaper

Ute Uprising, ROCKY MTN. NEWS, Dec. 16, 1890

49, p. 65

article

(handwritten)

22 Newspaper

On the Warpath, ROCKY MTN. NEWS, Dec. 18, 1890

49, pp. 66-67

article

(handwritten)

22 Newspaper

An Indian Battle, ASPEN DAILY NEWS, Dec. 20, 1891

49, p. 68

article

22 Newspaper

Fifty Killed: Redskins are Being Shot Down by the

49, pp. 71-72

article

Soldiers as They Appear, Without Mercy, ROCKY MTN.

NEWS, Dec. 30, 1890 (handwritten)

22 Newspaper

Counting the Dead: The Redskins Did Not Last Long

49, p. 73

article

Before the Cavalry, But Attempted to Escape, ROCKY MTN.

NEWS, Dec. 31, 1890 (handwritten)

22 Newspaper

Chased by Indians, ROCKY MTN. NEWS, Jan. 6, 1891

49, pp. 74,

article

(handwritten);

(dup) 75;

As Nunberg Dep. Ex. 21

83, p. 139

22 Newspaper

Rode for Their Lives, ROCKY MTN. NEWS (handwritten), 49, p. 76

article

Jan. 6, 1891 (handwritten)

22 Newspaper

The Redskin Trouble, ASPEN DAILY NEWS (handwritten), 49, p. 78

article

Jan. 7, 1891 (handwritten)

22 Newspaper

Looting Homes, ROCKY MTN. NEWS , Jan. 8, 1891

49, p. 79

article

(partial)

22 Newspaper

Awaiting a Chance, ROCKY MTN. NEWS, Jan. 10, 1891

49, p. 81

article

(handwritten)

22 Newspaper

Calling for Arms, ROCKY MTN. NEWS, Jan. 11, 1891

49, pp. 82-84,

article

(handwritten)

(dup front

page) 85

22 Newspaper

Ready for Trouble, ROCKY MTN. NEWS, Jan. 12, 1891

49, p. 86

article

(handwritten)

130

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Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

22 Newspaper

Bull’s Plot, ROCKY MTN. NEWS, Jan. 12, 1891

49, p. 87

article

(handwritten)

22 Newspaper

The Redskins Are Slowly Moving Toward Pine Ridge,

49, p. 88

article

ROCKY MTN. NEWS (handwritten), Jan. 12, 1891

(handwritten)

22 Newspaper

Into the Bad Lands, ROCKY MTN. NEWS, Jan. 14, 1891

49, p. 89

article

22 Newspaper

The Redskins Have Great Faith in Their Bullet-Proof Red 72, p. 4

article

Flannel Shirts, ROCKY MTN. NEWS, Jan. 15, 1891

(handwritten)

22 Newspaper

To Fight the Redskins, ROCKY MTN. NEWS (handwritten), 72, pp. 5-6

article

Jan. 15, 1891

22 Newspaper

The American Indian Difficulty, LONDON TIMES

72, p. 7

article

(handwritten), Jan. 15, 1891 (handwritten)

22 Magazine

The Sioux Rebellion, HARPER’S WEEKLY, Feb. 7, 1891

72, p. 8

article

(handwritten), at 106

22 Newspaper

The American Indian Difficulty, LONDON TIMES

72, pp. 18,

article

(handwritten), Jan. 3, 1891 (handwritten);

(dup) 19;

As Nunberg Dep. Ex. 22

83, p. 141

22 Newspaper

Redskin Chieftains Welcome Buffalo Bill and Retell

72, p. 36

article

Stirring Tales, DENVER POST (handwritten), Oct. 15, 1913

(handwritten)

22 Newspaper

Indians Destroy Road Signs to Check Flood of Tourists, 72, p. 37

article

DENVER POST (handwritten), Feb. 5, 1922 (handwritten)

22 Newspaper

Custer's Men Lured into Trap By Wily Redskins, DENVER 72, p. 38

article

POST (handwritten), June 19, 1932 (handwritten)

22 Newspaper

‘Fort Wicked’ Too Tough for Redskins: Pleasant-Faced

72, pp. 39-40,

article

Rancher and Garrison of Three Men, Four Women, Beat (dup) 41

Off Savages, ROCKY MTN. NEWS, Oct. 21, 1932

22 Newspaper

Story of Battle on Lightning Creek in 1903; Indians Lost 72, pp. 42-43

article

Battle with Cowbys; Eagle Feather’s Skull Found and

Now Preserved, LUSK HERALD, May 28, 1936, at 3, 6

22 Newspaper

Roger Williams, Stanford Alumni Clamor for Tradition: 72, p. 48

article

The Return of the Indian, S.F. Examiner, Nov. 12, 1974

22 Newspaper

Marge Banks, Indians Here on Warpath Against Tribe,

72, p. 51

article

Cleveland Press, Mar. 17, 1970

23 Newspaper

Avis Little Eagle, Protestors Challenge Racist Mascot

72, pp. 54-56

article

Names, INDIAN COUNTRY TODAY (not on copy), Nov. 19,

1992 (not on copy), at A1, A7

32 Newspaper

‘Redskins’ Target of Movement, EVENING STAR, Jan. 19, 77, p. 14

article

1972

43 Magazine

Robert Gessner, Vengeance on the Redskin! How the

78, pp. 10-14

article

White Man Massacres the Indian, Outlook &

Independent, Mar. 11, 1931, at 367-69, 382,

131

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

45 Magazine

Redskin Revival, NEWSWEEK, Feb. 20, 1939, at 14-15

78, pp. 16-18

article

46 Magazine

J. H. Peck, How I Put Down the Redskins, SAT. EVENING 78, pp. 20-23

article

POST, Oct. 23, 1943, at 25, 126, 128

47 Magazine

Don Eddy, Whooping it up with the Redskins, AM. MAG., 78, pp. 25-34

article

Nov. 1953, at 38-41, 93-97

59 Magazine

Richard MacPhie, We Are Not Extras: A Native American 87, pp. 97-101

article

Perspective on the Morality of Indian Mascots, Colors,

Jan.–Feb. 1992, at 12-15

73 Newsletter

Dartmouth College Alumni Newsletter, Apr. 27, 1973

91, pp. 73-75

88 Univ.

Michael Cabonargi, Miami University and the “Redskin” – 95, pp. 22-30

magazine

an Analysis, & Brett Harwood, Harwood Addresses U.

article

Senate on “Redskin” Issue, Voice, Apr. 27, 1993

128 Newspaper

Paul Shomin, Scalping Demonstration Outrage, Wassaja, 64, pp. 40-44

article

Oct. 1975

N/A Newspaper

Cooke Dep. Ex. 11:

66, p. 21

article

Leonard Shapiro, Indian Group to Stage Protest Sunday

at RFK, Wash. Post, Oct. 31, 1991, at B3

N/A Newspaper

Nunberg Dep. Ex. 20: Fighting Indians, ROCKY MTN.

83, pp. 135-37

article

NEWS (handwritten), June 11, 1891 (handwritten)

173 Newsletter

Copy Editor, June/July 1997

109, pp. 164-71

173 Letter to

Mary Beth Protomastro, Redskin Sacked, Copy Editor,

109, pp. 175-76

editor

Aug./Sept. 1997, at 7

PERIODICAL MATERIALS—UNDATED AND/OR UNIDENTIFIED PUBLICATION

11 Newspaper

All Chiefs, No Indians, undated and unidentified

68, p. 44

article

publication

11 Newspaper

Jack Seli, Washington Team’s Powerful Attack Routs

68, p. 45

article

Local Team, undated and unidentified publication

11 Newspaper

Heap Big Injuns, undated and unidentified publication

68, p. 46

article

11 Newspaper

Redskins Scalp Army Gridders, undated and unidentified 68, p. 47

article

publication, continued part of article only

(partial)

11 Newspaper

Redskins, Scalped by [rest of title cut-off], undated and

68, p. 48

article

unidentified publication

11 Newspaper

‘Skins Scalp Yanks, 17 to 14, undated and unidentified

68, p. 49

photo & ledger publication

11 Newspaper

Hugo Autz, College Stars Give Redskins Scalping, 27-7, 68, p. 50

article

undated and unidentified publication

11 Newspaper

John E. McNab, ‘Skins After Dummy’s Scalp in Next

68, p. 51

article

Season, undated and unidentified publication

11 Newspaper

Tribe Figured Best in East With Foe Tops in West,

68, p. 52

article

undated and unidentified publication

132

Cancellation No. 92046185

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

11 Newspaper

Dave Slattery, GP’s Set to Scalp, undated and

68, p. 53

article

unidentified publication

11 Newspaper

Charles Chamberlain, Tribe is Inspired by Memory of 73- 68, p. 54

article

0 Defeat, undated and unidentified publication

11 News photo & Hail to the Redskins, undated and unidentified

68, p. 55

ledger

publication

11 Newspaper

WASH. POST, Sept. day/year & copy illegible

68, p. 56

photo

11 Newspaper

36,006 See Redskins Topple Bears for Title, undated and 68, pp. 57-58

article

unidentified publication, continued part of article only

(partial)

11 Newspaper

Edward Prell, Redskin Chief Wants Showdown on Future, 68, pp. 59-60

article

undated and unidentified publication

11 Newspaper

Joe King, Skin’d Even Scalp Bears in the Kickoff Were

68, p. 61

article

Today, undated and unidentified publication

11 Newspaper

Various headlines, undated and unidentified publications 68, p. 62

headlines

(one headline includes handwritten “Pittsburgh Press

6/21/43)

11 Newspaper

Dave Slattery, 59 in Boston, Too? It’s the Yanks Again but 68, p. 63

article

Turk Fears Overconfidence—What’s he Want, 100?,

undated and unidentified publication, copy illegible

11 Newspaper

Ev Gardner, Navy Should Quite Baltimore for Griff’s

68, p. 64

article

‘Watchable’ Park, News, undated, article not about the

Washington Redskins

11 Newspaper

WMAL-TV, The Redskins Show, 9:30 P.M. Tonight,

68, p. 65

Advertisement undated and unidentified publication

11 Newspaper

Dave Slattery, Gen. Custer Avenged, undated and

68, p. 66;

article

unidentified publication;

(dup)

As Nunberg Dep. Ex. 43 (part)

92, p. 153

11 Newspaper

Al Costello, Redskins Hit Warpath to Coast Camp Today, 68, p. 67

article

undated and unidentified publication

11 News photo & Redskin Chiefs Pow-Wow, undated and unidentified

68, p. 68

ledger

publication

11 Newspaper

Dave Slattery, Redskins to the Left, Right and Rear,

68, p. 69

article

Wigwam Chit-Chat, undated and unidentified

publication, copy illegible

11 Newspaper

Various articles, Dave Slattery, Redskins on the Warpath, 68, p. 70

article

WASH. DAILY NEWS, Oct. day/year & copy illegible, Dick

O’Brien, Sports Slants, undated and unidentified

publication, copy illegible

11 Newspaper

‘Skins Scalp Steelers, 22-7 for 3rd Win, undated and

68, p. 71

article

unidentified publication, copy illegible

133

Cancellation No. 92046185

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

11 Newspaper

Big Chief Welcomes Todd Back to Redskin Tepee, undated 68, p. 72;

photo &

and unidentified publication;

(dup)

headline

As Nunberg Dep. Ex. 43 (part)

92, p. 154

11 Newspaper

Ev Gardner, Optimism in the Tepee, undated and

68, p. 74

article

unidentified publication

11 Newspaper

Dave Slattery, Tribe Thins a Heap of its Old Braves,

68, p. 76

article

undated and unidentified publication

11 Newspaper

Dave Slattery, Redskins Brewing Special Kickapoo Juice 68, p. 77;

article

for Browns, undated and unidentified publication;

(dup)

As Nunberg Dep. Ex. 43 (part)

92, p. 155

11 Newspaper

Dave Slattery, Wigwam Wigwags, WASH. DAILY NEWS,

68, p. 78

article

Oct. 22, 1953, & Ev Gardner, Feuding Fans Would Help

the Redskins, WASH. DAILY NEWS, Oct. 22, 1953

11 Newspaper

Dave Slattery, Scalped Redskins Scratched They’re Out of 68, p. 79

headline

the Title Race, undated and unidentified publication

11 Newspaper

Dave Slattery, Redskins Ambushed, undated and

68, p. 80;

article

unidentified publication;

(dup)

As Nunberg Dep. Ex. 43 (part)

92, p. 156

11 Newspaper

Wayne Thompson, Papoose Platoon Set for Rough NFL

68, p. 81

article

Wars, undated and unidentified publication

11 Newspaper

Dave Slattery, Tribe’s Sloppy Play Makes Curly Erupt,

68, p. 82

article

undated and unidentified publication

11 Newspaper

Nixon’s on the Redskin Warpath, undated and

68, p. 88;

article

unidentified publication;

(dup)

As Nunberg Dep. Ex. 43 (part)

92, p. 159

11 Newspaper

Redskins Start Bloodletting Today, undated and

68, p. 89;

article

unidentified publication, continued part of article only,

(partial)

part of copy illegible;

(dup)

As Nunberg Dep. Ex. 43 (part)

92, p. 158

11 Newspaper

Darkness Descends on Redskins Ruins, 34-0, undated and 68, p. 90

headline,

unidentified publication, copy illegible

photo &

article

11 Newspaper

Jack Walsh, Redskins Conduct Full Scale Workout on

68, p. 91

article

Regular Day Off, undated and unidentified publication

11 Newspaper

Dave Brady, Redskins Will be Good Warriors if Huff Gets 68, p. 95

article

Linebacking Help, undated and unidentified publication

11 Newspaper

Dave Brady, Hostility of Redskins Intrigues Patient Fans, 68, p. 96

article

undated and unidentified publication, and partially

illegible copy

11 Newspaper

Joe Tomlinson, Tom-Toms, undated and unidentified

68, p. 97

article

publication

11 Newspaper

Lewis F. Atchison, Redskins and Coaches Stunned by

68, pp. 98-99

article

Debacle, undated and unidentified publication

134

Cancellation No. 92046185

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

11 Newspaper

Redskins on Warpath, undated and unidentified

68, p. 105

photo & ledger publication, photo illegible

11 Newspaper

Dave Brady, Lombardi’s Messages Come Through Loud 68, p. 106

article

and Clear, WASH. POST, July 11, 1969, and copy illegible

11 Newspaper

Lewis F. Atchison, More Cuts Likely to Follow Full-Scale 68, p.107

article

Redskin Warfare, WASH. STAR, undated publication;

(dup) 69, p. 4;

As Nunberg Dep. Ex. 43 (part)

92, p. 162

11 Newspaper

Steve Hershey, Redskins’ Pass Rush Now Formidable,

69, p. 5;

article

undated and unidentified publication;

(dup)

As Nunberg Dep. Ex. 43 (part)

92, p. 163

11 Newspaper

William [illegible], Skin Fans Scalped by Ticket Owners, 69, p. 6

article

WASH. POST, Dec. 10, 1971, copy illegible

11 Newspaper

Sweet Revenge, unidentified publication, Nov. 25, 1986

69, p. 10

article

(handwritten)

12 Newspaper

Santa Claus Misses Wigwam Goal, WASH. TIMES-

69, p. 13

article

HERALD, undated and copy partially illegible

12 Newspaper

So You Won’t Talk, Eh?, undated and unidentified

69, p. 14

photo

publication, copy illegible

12 Newspaper

Cigar Store Indian Part of Marshall’s Ballyhoo,

69, p. 15

photo

Milwaukee J., undated

12 Newspaper

Undated and unidentified publications, photo and copy

69, p. 16

photos

illegible

12 Newspaper

Feathers are Only Decorative but Players Bear DC

69, p. 17

photo

Football Hope, undated and unidentified publication

12 Newspaper

Heap, Heap Hooray! For Redskins, undated and

69, p. 18

photo

unidentified publication

12 Newspaper

Bring on Those Bears, undated and unidentified

69, p. 19

photos

publication

12 Newspaper

In This Caw-Nuh!, undated and unidentified publication 69, p. 20

photo

12 Newspaper

Redskins’ Hopes, undated and unidentified publication

69, p. 21

photos

12 Newspaper

Hip-Hip, Redskins . . . , undated and unidentified

69, p. 22

photo

publication

12 Newspaper

Alexandrians in ‘Skins Band, undated and unidentified 69, p. 23

photo

publication

12 Newspaper

Undated and unidentified publications, photo and copy

69, p. 24

photos

illegible

12 Newspaper

Ev Gardner, How George Preston Marshall Boosted

69, p. 25

article

Racing, WASH. STAR, undated

12 Newspaper

Champion Drum Major Scores Hit with Band, undated 69, p. 26

photo

and unidentified publication (states below photo:

Redskins band roster 1941 season)

135

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

12 Newspaper

Layden Sits In on Annual Banquet of Redskin Band,

69, p. 27

photo

HERALD (hand-written), date-stamped May 5, 1941

12 Newspaper

As One Indian to Another, Says Redskin Rookie,

69, p. 28

photo

unidentified publication, June 23, 1942

12 Newspaper

Tomahawk Trade-in Value is One Football, undated and 69, p. 29

photo

unidentified publication , photo of Jack Jacobs (Muscogee

Indian who played for Redskins), WASH. POST, undated

12 Newspaper

The Admiral Gets His Orders, undated and unidentified 69, p. 30

photo

publication

12 Newspaper

George Marshall of Redskins Smokes Pipe of Peace,

69, p. 32

photo

undated and unidentified publication

12 Newspaper

Big Chief Choo-Choo He Ponders, undated and

69, p. 33

photo

unidentified publication

12 Newspaper

Tenth in Row, undated and unidentified publication (on 69, p. 34

photo

exclusive rights of radio company to broadcast Redskins’

games)

12 Newspaper

Dave Slattery, Three Redskins Due for Ax, WASH. DAILY 69, p. 35

article

NEWS, Oct. [illegible]

12 Newspaper

Redskins Clip Eagles, 27-21, as Baugh Ends Career,

69, pp. 36-37

photo

undated and unidentified publication

12 Newspaper

Pair of Winners for Redskins, undated and unidentified 69, p. 38

photo

publication (on Miss Redskins of 1954 winners)

12 Newspaper

Four Fumbles Take the Cheer Out of Washington’s

69, p. 40

photo

Redskinettes, undated and unidentified publication

12 Newspaper

Globe Helps Washington Redskins, unidentified

69, p. 41

article

publication, Aug. 1964

12 Newspaper

Morris Siegel, Redskins’ Band to Drop Dixie, WASH. STAR, 69, p. 42

article

undated and unidentified publication

13 Newspaper

That Super Season!, Wash. Times, undated, at front page, 69, pp. 45-46

photos

72

13 Newspaper

Rally ‘Round the ‘Skins, undated and unidentified

69, p. 47

photos

publication, at 69

13 Newspaper

A Fan’s First Impression, undated and unidentified

69, p. 52

photo, ledger publication

13 Newspaper

Christine Williams, A City’s Soul on a Roll, WASH. POST, 69, p. 53

article

undated, at D1

13 Newspaper

Undated and unidentified publication

69, p. 54

photos

13 Newspaper

Shame on You, Redskins, undated and unidentified

69, p. 55

photos

publication, photos legible

13 Newspaper

Dave Kindred, . . . Washington Reacts Quizzically, WASH. 69, p. 56

photo, article POST, undated

(partial)

136

Cancellation No. 92046185

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

13 Newspaper

Undated and unidentified publication

69, p. 60

photo

13 Newspaper

Undated and unidentified publication

69, p. 63

photo

16 Newspaper

Arch Ward, In the Wake of the News, unidentified

70, p. 63

article,

publication, Aug. 19, 1943 (handwritten) (cartoon: The

cartoon

Injuns Are Coming!)

17 Newspaper

Pickets Charge Marshall with Race Bias, Pittsburgh

48, p. 6

article

Times Herald, Feb. 1, 1957 (handwritten), copy illegible

17 Newspaper

Pickets Protest Redskin Failure to Hire Negros, Wash.

48, p. 7

article

Star, Oct. 14, 1957 (handwritten), copy illegible

17 Newspaper

Tom Yorke, GPM Faces Frontier, unidentified

48, pp. 9-10

article

publication, Mar. 25, 1961 (handwritten)

17 Newspaper

Washington D.C. continued, undated and unidentified

48, pp. 20-21

article

publication

(partial)

17 Publication

The Redskins’ 50th, unidentified publication, Sept. 8,

48, p. 22

article

1986 (handwritten)

18 Newspaper

Paul Kaplan, Do We Defame Native Americans?, & Mike 48, pp. 25-26

article,

Roberts, Team Nicknames Linked to Myths, Bill Garner

cartoon

cartoon, ‘Call me a redskin. I like it’, WASH. STAR (circa

1972)

19 Publication

Political Correctness Comes to the Playing Field, undated 48, p. 43

article

and unidentified publication

19 Newspaper

Rose Gutfeld, A Native American Group Lobbies NFL’s

48, p. 44

article

Redskins to Change Name, WALL ST. J., undated

19 Newspaper

Vito Stellino, What’s in Name? Redskins Find Out From 48, p. 45

article

Indians, unidentified publication, Dec. 28, 1990

19 Newspaper

Associated Press, NFL is Urged to Forbid Use of

48, p. 46

article

‘Redskins’, unidentified publication, Dec. 28, 1990

(handwritten)

19 Newspaper

Bob Molinaro, Please, Stop Calling Them ‘Redskins’,

48, pp. 60-61

editorial

unidentified publication, Oct. 4, 1992 (handwritten)

19 Newspaper

Change Nickname, Redskins Told, unidentified

48, p. 62

article

publication, July 3, 1993

19 Newspaper

AP Denver, Senate Bill Could Force Redskins Name

48, p. 63

article

Change, unidentified publication, July 3, 1993

20 Newspaper

Reprint of Ron Martz, Indian Stereotypes Ingrained in

48, pp. 77-78

article

U.S., ATL. J.-CONST., undated and unidentified

publication, at 133-34 (sourced & dated article provided

also)

20 Newspaper

‘Redskins’ is Racist, STANFORD DAILY (Univ.), undated

48, p. 79

editorial

137

Cancellation No. 92046185

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

20 Newspaper

John Slupski, Native Americans get Unsportsmanlike

48, pp. 93-94

article

Rep, undated and unidentified publication

20 Newspaper

Gary Fallesen, ‘Racist’ Name Taints Game With

48, p. 95

article

Stupidity, DEMOCRAT & CHRON., undated

20 Newspaper

A Sign of Change, undated and unidentified publication 71, p. 5

column

20 Newspaper

Chuck Robertson, Wee Hours, undated and unidentified 71, p. 16

article

publication

20 Newspaper

Mary Jane Smetanka, Indian Logos, Mascots Still Must 71, p. 17

article

Go, undated and unidentified publication

20 Newspaper

Wiley A Hall III, Only a Rude Nation Could Ignore Team 71, p. 19

article

Insults to Indians, BALT. EVENING SUN, undated

20 Publication

Sharon White, et al., Mascots Affect/Reflect Social

71, p. 20

letters to the Attitudes, & Cornell D. Cooper, Mascot Racist Mockery

editor

Must Stop Soon, undated and unidentified publication

20 Newspaper

Jonathan Yardley, Get with the Program Jane Fonda!,

71, p. 24

column

Wash. Post, undated

20 Newspaper

“Mascots” Issue Sparks National Debate, end of article,

71, p. 25

article

undated and unidentified publication

(partial)

20 Newspaper

Larry Lipman, Are Tomahawks, War Chant Racist?,

71, p. 26

article

unidentified publication, Oct. 9, 1991, at C2

(partial)

20 Publication

Tim Sandler, Indian Symbols in Sports Promote Bias

71, pp. 39-40

article

Against Native Americans, undated and unidentified

publication

20 Newspaper

Nat’l Indian Youth Council, Commentary: Cultural

71, p. 41

commentary Ignorance Abounds, Americans Before Columbus,

undated

20 Newspaper

Clarence Page, Party Pooper? Redskins (and Indians)

71, p. 42

article

Should Think Up New Names, PLAIN DEALER, undated

20 Newspaper

Jay Calvin Weaver and Monika Bauerlein, Skin Deep,

71, p. 44

article

unidentified publication, Jan. 1992

20 Newspaper

2,000 Demonstrate Against Indian Nicknames,

71, p. 56

article

unidentified publication, Jan. 27, 1992, at B7

20 Newspaper

Avis Little Eagle, Mass Protest Planned for ‘Redskins’

71, pp. 85-86

article

Game, LAKOTA TIMES, July29, 1992 (handwritten), at A1,

A3, undated

20 Newspaper

Jim Caple, There’s No Defense for Using ‘Redskins’,

49, p. 11

editorial

unidentified publication, Oct. 22, 1995

22 Newspaper

Byline: Cheyenne, Wyo., Nov. 30, N.Y. TIMES, undated 49, p. 60

article

(handwritten)

(partial)

138

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

22 Newspaper

[No title shown], N.Y. TIMES, Dec. 2, 1890 (handwritten) 49, p. 61

article

(partial)

22 Newspaper

Byline: Camp Near Battle Creek, Dakota, Dec. 26,

49, pp. 69-70

accountings

LONDON TIMES(handwritten), Dec. 27, 1890 (not shown

on copy)

22 Newspaper

Byline: Pine Ridge, Jan. 6, LONDON TIMES (handwritten), 49, p. 77

accountings Jan. 7, 1891 (not shown on copy)

22 Newspaper

Byline: Long Pine, Jan. 7, LONDON TIMES (handwritten), 49, p. 80

accountings Jan. 8, 1891 (not shown on copy)

22 Publication

Colo. Hist. Soc’y Archives, Tales of the Old West: Scraps 72, p. 9

story

of History, undated and unidentified publication

22 Publication

Quanah, Chief of Redskins Sets White Trap, undated and 72, p. 10

story

unidentified publication

22 Newspaper

The American Indian Difficulty, LONDON TIMES

72, p. 11

article

(handwritten), undated

22 Newspaper

LONDON TIMES, undated and no identifiable and legible 72, pp. 12-15

material

article

22 Newspaper

Byline: Pine Ridge, Jan. 2, LONDON TIMES (handwritten), 72, pp. 16-17

article

undated

22 Newspaper

The American Indian Difficulty, LONDON TIMES

72, pp. 20-21

article

(handwritten), undated

22 Newspaper

undated and unidentified publication

72, p. 22

article

22 Publication

Thursday is 70th Anniversary of Sand Creek Indian

72, p. 23

story

Massacre: Men, Women and Children of Redskin Tribe

Slaughtered Near Colorado Springs, undated and

unidentified publication (from Univ. of Colo. archives)

22 Magazine

Arthur Chapman, The Indian Fighters of the Arickaree, & 72, pp. 24-27

articles

Henry Smith Williams, Immigration & Democracy

(beginning of article), HARPER’S WEEKLY, undated, at 9-

10, 25-26

22 Newspaper

Major’s Men Were Lured Into Ambush by Fleeing

72, pp. 28-30

article

Redskins, DENVER POST, undated (from Univ. of Colo.

archives)

22 Publication

Guy Murchie Jr., Sandy Forsyth’s Thrilling Frontier

72, pp. 44-47

article

Fight, unidentified publication, Apr. 25, 1937

22 Newspaper

Ledger: Zema (Chief Zee) Williams appeals to the

72, p. 50

photo

heavens in an empty RFK Stadium, WASH. POST,

undated

23 Newspaper

Dave Matheny, The Year of a Super Bowl, a Final 4 and a 72, p. 57

article

'Hugedale', STAR TRIBUNE (Minn.) (not shown on copy),

(partial)

Dec. 31, 1992 (not shown on copy)

139

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Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

28 Publication

Morris Siegel, Washington’s Unifying Force, undated and 50, pp. 34-35;

article

unidentified publication;

N/A

As Cooke Dep. Ex. 8

65, pp. 149-50

PHOTOS (INDEPENDENTLY SUBMITTED)

24 Photos

Copies of photographs of varying legibility demonstrating 72, pp. 59-80

Washington Redskins imagery and logos, including

50, pp. 4-14

general memorabilia, cigar store Indian statue,

commemorative posters of past seasons, teams and

general history, exterior façade of building, members of

marching band and Redskinettes members wearing

headdress

N/A Photos

Nunberg Dep. Ex. 16: Photos of Red Mesa school

83, p. 124;

entrance and welcome signs displaying “Home of the

(dup) 92, p. 31

Redskins”

N/A Photo

Nunberg Dep. Ex. 17: Photo of roadside billboard

83, pp. 126-27;

displaying “Round Rock Public School Fighting Braves”

and back of photo describing location as Round Rock on (dup)

Navajo Indian Reservation in northeast Ariz, taken June 94, pp. 118-19

10, 1994;

As Stevens Dep. Ex. 12

PRESS RELEASES & POSITION STATEMENTS

68 Press release UCLA Am. Indian Student Ass’n, Native American Legal 91, p. 5

Action Seeks Abandonment of Washington Redskins

Name, Sept. 10, 1992

69 Public

Statement of David P. Bradley in Support of Native

91, p. 7

statement

American Action Against “Redskins,” undated

82 Press release U.S. Sen. Daniel K. Inouye, Inouye Comments on Native 95, p. 7

American Legal Action, Sept. 9, 1992

83 Press

Thom White Wolf Fassett, Gen. Sec’y, United Methodist 95, p. 9

statement

Gen. Bd. of Church & Soc’y on Racist Images in the

Sports Indus., Sept. 10, 1992

87 Statement to Dr. Britton Harwood, Statement to the [Miami] Univ.

95, pp. 18-20

the University Senate, 5 April 1993

N/A Press release Cooke Dep. Ex. 10: Wash. Redskins undated statement 66, p. 19

that its name “was never intended to offend anyone” and

that “the name has reflected positive attributes of the

American Indian.”

PROCLAMATIONS

36 Proclamation Proclamation of King George II, 40 pounds issued to

77, p. 63

subjects “[f]or every scalp of a male Indian brought in as

evidence of their being killed,” June 10, 1756

PROTEST LETTERS INDICATING INDIVIDUAL AUTHORS ARE NATIVE AMERICANS

5

Protest letter Philip St. John (Native American) to Jack Kent Cooke,

63, p. 84

Jan. 6, 1988

140

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5

Protest letter Joan W. Drake (Native American) to Jack Kent Cooke,

63, p. 86

Jan. 21, 1988

5

Protest letter Hubert Roy (Native American) to Jack Kent Cooke, Feb. 63, p. 90

19, 1988

5

Protest letter Roxanna Puchner (Native American) to Jack Kent Cooke, 63, pp. 108-10

dated Feb. 22, 1988, with Tim Giago, A Clever Nickname

Cannot Disguise a Racial Slur, editorial excerpt (Lakota

Times, 1988)

5

Protest letter A. Beston (Native American) to Jack Kent Cooke, Feb. 23, 63, p. 112

1988

5

Protest letter James & Lenora Bezpaletz (non-Native Americans &

63, pp. 94-95

adoptive parents of Native Americans) to Jack Kent

Cooke, Feb. 21, 1988

5

Protest letter Ronald C. Brownotter (Native American) to Jack Kent

63, pp. 121-22

Cooke, Feb. 29, 1988

5

Protest letter Melissa D. McRae (Native American) to Jack Kent Cooke, 63, p. 123

Feb. 29, 1988

5

Protest letter Lavon Schmidt (Native American) to Jack Kent Cooke,

63, p. 125

undated (date stamped “JKC Inc. Mar. 1, 1988”)

5

Protest letter Norma Lussier (Native American) to Jack Kent Cooke,

63, pp. 127-28

Mar. 18, 1988

5

Protest letter BoBo Shangreaux (Native American) to Jack Kent Cooke, 63, p. 129

undated (date stamped “JKC Inc. Mar. 22, 1988”)

5

Protest letter Adora Martin (Native American) to Jack Kent Cooke,

63, pp. 132-34

undated (date stamped “JKC Inc. May 2, 1988”)

5

Protest letter Donna Jumping Eagle (Native American) to Jack Kent

63, pp. 135-37

Cooke, undated (date stamped “JKC Inc. May 2, 1988”)

5

Protest letter Paula Sheridan (Native American) to Jack Kent Cooke, 67, p. 14

Feb. 11, 1992

5

Protest letter Jeffrey Valentino (Native American) to Jack Kent Cooke, 67, p. 65

Sept. 14, 1992

5

Protest letter Teresa Mitchell (Native American) to Jack Kent Cooke, 67, pp. 86-87

Apr. 19, 1993

5

Protest letter Kasey Abbott (Native American) to Jack Kent Cooke,

67, p. 93

Aug. 30, 1993

5

Protest letter Nat’l Rainbow Coalition, Inc. Native American supporter 67, p. 130;

Kimberly Whitehead (form letter campaign) to Jack Kent (dup)

Cooke, Oct. 8, 1993

92, p. 112

32 Protest letter Billy Kevin Gover (Native American) to Edward Bennett 77, p. 6

Williams, July 18, 1972

141

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PROTEST LETTERS INDICATING NATIVE AMERICAN ADVOCACY GROUP

5

Protest letter Clyde H. Bellecourt, National Director, American Indian 63, pp. 172-75

Movement, William A. Means, President, International

Indian Treaty Council (Native American advocacy

organization) to Jack Kent Cooke, Dec. 20, 1991

5

Protest letter Loren Stiffarm, President, Nat’l Indian Educ. Ass’n

67, pp. 37-38

(Native American advocacy organization) to Manuel

Lujan, Dept. of Interior, Mar. 16, 1992

5

Protest letter Sharon Metz, H.O.N.O.R. (Native American advocacy

67, p. 68

organization) to Jack Kent Cooke, Oct. 1992

5

Protest letter Nat’l Rainbow Coalition, Inc. & Native American

67, p. 150;

supporters (form letter campaign) to Jack Kent Cooke,

(dup) 92, p. 132

Oct. 8, 1993, submitted by Otoe-Missouria Tribe of

Indians

PROTEST LETTERS NOT INDICATING AUTHORS ARE NATIVE AMERICANS

5

Protest letter Trudy Cooney (non-Native American) to Jack Kent

63, p. 83

Cooke, Aug. 16, 1986

(dup) 62, p. 140

5

Protest letter Christopher Burke (non-Native American) to Jack Kent 63, p. 85

Cooke, Jan. 15, 1988

5

Protest letter Gerrard W. Rudmin (non-Native American) to Jack Kent 63, p. 91

Cooke, Feb. 19, 1988

5

Protest letter Shirley McKinsey (non-Native American) to Jack Kent

63, p. 92

Cooke, Feb. 19, 1988

5

Protest letter David J. Eastman (non-Native American) to Jack Kent

63, p. 93

Cooke, Feb. 21, 1988

5

Protest letter Ottinger, et al. (non-Native Americans), to Jack Kent

63, p. 96

Cooke, Feb. 21, 1988

5

Protest letter Jay Davis (non-Native American) to Jack Kent Cooke,

63, pp. 97-98

Feb. 21, 1988, with Tim Giago , If the Name Redskins

Doesn't Bother Team Owner, How About Blackskins?,

editorial excerpt (Sioux Falls Argus Leader, Feb. 21,

1988)

5

Protest letter Timothy E. Hamel (non-Native American) to Jack Kent 63, pp. 100-01

Cooke, Feb. 22, 1988

5

Protest letter Larry D. Jones (non-Native American) to Jack Kent

63, pp. 102-03

Cooke, Feb. 22, 1988

5

Protest letter J. Bruce Blake (non-Native American) to Jack Kent

63, pp. 104-05

Cooke, Feb. 22, 1988, with Tim Giago, If the Name

Redskins Doesn't Bother Team Owner, How About

Blackskins?, editorial excerpt (Sioux Falls Argus Leader,

Feb. 21, 1988)

5

Protest letter Lee Axdahl (non-Native American) to Jack Kent Cooke, 63, p. 106

Feb. 22, 1988

142

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5

Protest letter Kathleen H. Williams (non-Native American) to Jack

63, p. 107

Kent Cooke, Feb. 22, 1988

5

Protest letter Charles Woodard (non-Native American) to Jack Kent

63, p. 111

Cooke, Feb. 22, 1988

5

Protest letter Evelyn & E.A. Griesse (non-Native Americans) to Jack

63, p. 99

Kent Cooke, Feb. 23, 1988

5

Protest letter Eleanor Rickard (non-Native American) to Jack Kent

63, p. 113

Cooke, Feb. 23, 1988

5

Protest letter M. Marin (non-Native American) to Jack Kent Cooke,

63, p. 114

Feb. 23, 1988

5

Protest letter John Margolis (non-Native American) to Jack Kent

63, p. 115

Cooke, Feb. 24, 1988

5

Protest letter Bob Folk (non-Native American) to Jack Kent Cooke, Feb. 63, p. 116

25, 1988

5

Protest letter Janice Munn Johnson (non-Native American) to Jack

63, pp. 117-18

Kent Cooke, Feb. 25, 1988

5

Protest letter Verna K. Severson (non-Native American) to Jack Kent 63, p. 119

Cooke, Feb. 28, 1988

5

Protest letter Lynn Rudmin Chong (non-Native American) to Jack Kent 63, p. 120

Cooke, Feb. 29, 1988

5

Protest letter Ruth Alexander (non-Native American) to Jack Kent

63, p. 126

Cooke, Mar. 3, 1988

5

Protest letter Rudy Boschwitz (non-Native American) to Jack Kent

63, p. 130

Cooke, Mar. 22, 1988

5

Protest letter Diane P. (non-Native American) to Jack Kent Cooke, Apr. 63, p. 131

5, 1988

5

Protest letter Ronald B. Duber (non-Native American) to Jack Kent

63, p. 139

Cooke, June 6, 1988

5

Protest letter David A. Clarke, DC Council, to Jack Kent Cooke,

63, pp. 141-43

forwarding letter from Robert Coronado (non-Native

American) to Clarke, Feb. 9, 1989

5

Protest letter Lou Schoen, Minn. Council of Churches (non-Native

63, p. 146

American) to Jack Kent Cooke, Jan. 3, 1991

5

Protest letter Steve Macuk (non-Native American) to Jack Kent Cooke, 63, p. 147

Jan. 15, 1991

5

Protest letter Michael Corbett (non-Native American) to Director of

63, p. 148

Communications, NFL, Jan. 25, 1991

5

Protest letter Kristy Blain (non-Native American) to Director of

63, p. 149

Communications, NFL, Jan. 29, 1991

5

Protest letter U.S. Sen. Dennis DeConcini (ethnicity unstated) to NFL 63, pp. 150-51

Commissioner Paul Tagliabue, Mar. 13, 1991

5

Protest letter R. Scott Klappenbach (non-Native American) to Jack

63, pp. 152-53

Kent Cooke, Oct. 19, 1991

143

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5

Protest letter Diana L. Wilcox (non-Native American) to Jack Kent

63, p. 154

Cooke, Oct. 23, 1991

5

Protest letter Louis H. Kalikour (non-Native American) to Jack Kent

63, pp. 155-56

Cooke, Oct. 25, 1991

5

Protest letter Mitch Engel (non-Native American) to Jack Kent Cooke, 63, pp. 158-59

Nov. 1, 1991

5

Protest letter Dan Lieberman (non-Native American) to Jack Kent

63, p. 163

Cooke, Nov. 14, 1991

5

Protest letter Paul Kuenning (non-Native American) to Jack Kent

63, p. 164

Cooke, Nov. 17, 1991

5

Protest letter Frederick A. Wilson (non-Native American) to Maureen 63, pp. 165-67

Bunyan, CBS News, Nov. 20, 1991, with letter from same

to Scott Simon, NPR to Clarke, Jan. 18, 1988

5

Protest letter Elizabeth Hudman (non-Native American) to Jack Kent 63, p. 168

Cooke, Nov. 22, 1991

5

Protest letter John Lynch (non-Native American) to Jack Kent Cooke, 63, p. 169

Nov. 23, 1991

5

Protest letter Lewis Straughn Nippard (non-Native American) to Jack 63, pp. 170-71

Kent Cooke, Dec. 4, 1991

5

Protest letter Cynthia Mazur, First Congregational United Church of 63, p. 177

Christ (non-Native American) to Jack Kent Cooke, Jan.

17, 1992

5

Protest letter U.S. Sen. Paul D. Wellstone (ethnicity unstated) to NFL 63, p. 178

Commissioner Paul Tagliabue, Jan. 21, 1992

5

Protest letter Brian Myers (non-Native American) to Nick Coleman, St. 63, p. 179

Paul Pioneer Press, Jan. 24, 1992, on his column

5

Protest letter T. Paul Imse, Jr. (non-Native American) to Jack Kent

63, pp. 180-84

Cooke, Jan. 27, 1992

5

Protest letter T. Paul Imse, Jr. (non-Native American) to Jack Kent

67, p. 13

Cooke, Feb. 6, 1992, responding to response of previous

letter

5

Protest letter T. Paul Imse, Jr. (non-Native American) to George

67, p. 12

Solomon, Washington Post Sports Editor, Feb. 6, 1992,

referencing previous letters as attached

5

Protest letter G. Allen (non-Native American) to Jack Kent Cooke, Jan. 63, pp. 185-86

27, 1992

5

Protest letter Marietta L. Sandberg (non-Native American) to Jack

67, p. 4

Kent Cooke, Jan. 28, 1992

5

Protest letter John Brawthen (non-Native American) to Jack Kent

63, pp. 5-6

Cooke, Jan. 28, 1992

5

Protest letter Lona Stewart (non-Native American) to Jack Kent Cooke, 67, p. 7

Jan. 29, 1992

5

Protest letter Constance M. Skousen, Missoula Women for Peace (non- 67, p. 8

Native American) to Jack Kent Cooke, Jan. 31, 1992

144

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5

Protest letter Elmer Kuball (non-Native American) to Jack Kent Cooke, 67, p. 9

Feb. 2, 1992

5

Protest letter Larry Shapiro (non-Native American) to Jack Kent

67, p. 10

Cooke, Feb. 5, 1992

5

Protest letter Toni Zima (non-Native American) to Jack Kent Cooke,

67, p. 11

Feb. 1, 1992

5

Protest letter Dirk A. Griffin (non-Native American) to Jack Kent

67, pp. 15-16

Cooke, Feb. 12, 1992

5

Protest letter Michael Scicutella (non-Native American) to Jack Kent 67, p. 17

Cooke, Feb. 13, 1992

5

Protest letter Dennis P. Dalton (non-Native American) to Jack Kent

67, pp. 18-20

Cooke, Jan. 21, 1992

5

Protest letter Donald D. Kummings (non-Native American) to Jack

67, pp. 21-23

Kent Cooke, Feb. 24, 1992, with publication excerpts

5

Protest letter Benjamin Alexander (non-Native American) to

67, pp. 24-27

Washington Redskins, Feb. 25, 1992, with Open Letter to

Washington Redskins Fans

5

Protest letter William P. Lightfoot, DC Council (ethnicity unstated) to 67, p. 28

Jack Kent Cooke, Feb. 25, 1992

5

Protest letter Alison J. Gegenhuber (non-Native American) to Jack

67, p. 29

Kent Cooke, Feb. 26, 1992, with Bud Geracie, Time for

Redskins to Change Their Name, editorial excerpt (San

Jose Mercury News, Jan. 28, 1992)

5

Protest letter Douglas & Charlotte Graham (non-Native Americans) to 67, pp. 30-31

Jack Kent Cooke, Jan. 27, 1992, with cartoon (St.

Petersburg Times, Jan. 26, 1992)

5

Protest letter Stanley Carpenter (non-Native American) to Washington 67, p. 32

Post Letter to the Editor, Mar. 5, 1992

5

Protest letter George W. Howe (non-Native American) to Jack Kent

67, p. 34

Cooke, Mar. 13, 1992

5

Protest letter Dave Wachter (non-Native American) to Jack Kent

67, p. 39

Cooke, Mar. 17, 1992

5

Protest letter Thomas Watkins (non-Native American) to Jack Kent

67, pp. 41-42

Cooke, Mar. 23, 1992, with letter from same to

Washington Post, Mar. 23, 1992

5

Protest letter Elliot L. Stevens, Cent. Conference of Am. Rabbis (non- 67, pp. 48-49;

Native American) to Jack Kent Cooke, April 1992, with

“Racism” Resolution Adopted by the 103rd Annual

Convention of sender (Apr. 1992);

(dup)

As Stevens Dep. Ex. 3

99, p. 99

5

Protest letter Clare Nichols (non-Native American) to Jack Kent Cooke, 67, p. 51

Apr. 18, 1992

5

Protest letter Deanna L. Shimko-Herman (non-Native American) to

67, p. 52

Jack Kent Cooke, Apr. 21, 1992

145

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5

Protest letter Dan Mackie (non-Native American) to Jack Kent Cooke, 67, p. 53

Apr. 29, 1992

5

Protest letter K. Schowalter (non-Native American) to Jack Kent

67, p. 54

Cooke, May 4, 1992

5

Protest letter Joseph P. Morra (non-Native American) to Jack Kent

67, pp. 55-56

Cooke, May 11, 1992

5

Protest letter Bud White (non-Native American) to Jack Kent Cooke,

67, p. 57

June 11, 1992

5

Protest letter Kenneth R. Fredgren (non-Native American) to Jack

67, pp. 58-59

Kent Cooke, June 19, 1992, with Maurice Patton, Ill.

School Does ‘Right Thing,’ Drops Redskins Nickname

(USA Today, June 18, 1992)

5

Protest letter Chas. T. Hayes (non-Native American) to Jack Kent

67, pp. 60-61

Cooke, July 9, 1992

5

Protest letter Stephen T. Wicke (non-Native American) to Jack Kent

67, pp. 62-63

Cooke, Aug. 21, 1992

5

Protest letter William & Kathy Miller (non-Native Americans) to Jack 67, p. 64

Kent Cooke, Sept. 1992

5

Protest letter Mitch Engel (non-Native American) to Jack Kent Cooke, 63, p. 66

Sept. 23, 1992

5

Protest letter Brian George (non-Native American) to Jack Kent Cooke, 67, p. 67

Sept. 25, 1992

5

Protest letter Jackee Allen (non-Native American) to Jack Kent Cooke, 67, pp. 69-72

Oct. 3, 1992, forwarding her editorial Football Teams

Shouldn’t Have Racist Names (Daily Record (Morris

County, NJ), Sept. 25, 1992)

5

Protest letter Bob Carter (non-Native American) to Jack Kent Cooke, 67, p. 75

Nov. 10, 1992

5

Protest letter Members of First Congregational Church (non-Native

67, p. 76

Americans) to Jack Kent Cooke, Nov. 24, 1992

5

Protest letter Dan Lee (non-Native American) to Jack Kent Cooke, Dec. 67, p. 77

7, 1992

5

Protest letter John Hallenbeck (non-Native American) to Wash.

67, pp. 78-79

Redskins, Dec. 30, 1992, forwarding his editorial How

‘bout Redskins?(Times Union (Albany, NY), Dec. 25, 1992)

5

Protest letter Allan & Eric Coles (non-Native Americans) to Jack Kent 67, p. 82

Cooke, Mar. 8, 1993

5

Protest letter Debara Gertenberg (non-Native American) to Jack Kent 67, p. 83

Cooke, Mar. 8, 1993

5

Protest letter Kathleen E. Quasey (non-Native American) to Jack Kent 67, pp. 84-85

Cooke, Mar. 29, 1993

5

Protest letter Kathy Crawford (non-Native American) to Jack Kent

67, p. 88

Cooke, May 11, 1993

146

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5

Protest letter J. Tyler (non-Native American) to Jack Kent Cooke, July 67, pp. 89-90

13, 1993

5

Protest letter Jon Cohen (non-Native American) to Jack Kent Cooke,

67, p. 91

Aug. 3, 1993

5

Protest letter Joe R. Talaugon, Comm. for Betterment of Santa Maria 67, p. 92

Valley (non-Native American) to Jack Kent Cooke, Aug.

24, 1993

5

Protest letter Nat’l Rainbow Coalition, Inc. & non-Native American

67, pp. 95-129,

supporters (form letter campaign) to Jack Kent Cooke, all 131-32, 135-

dated Oct. 8, submitted by Jesse L. Jackson, Ronald

36, 140, 142-

Blackburn, Lee Rory Hogan, Ernest Haywood, Ralph

47, 149, 153-

Johnson, Cindi Robinson, Toni Tyler, Calvin Owens,

62;

Betty Anne Summings, Michael More, Calvin Drum,

(dup)

Lawrence Jones, Cheryl Hansen, Charles B. Watkins,

92, pp. 78-111,

Bart Smith, Nancy Simmons, Paul Jobe, Mariam Buhari, 113-14, 117-

Jean Claude Sarr, Ousame Br, Sophia Ine, Martin

18, 122, 124-

Dubois, Amadon Diallo, Serache Claire, Maurice

29, 131, 135-44

Dupardieuz, Tom Rollings, M.T., Charles Farrell, Greg

Halloway, Hilary N., Jo Ann C., Anthony Bell-Zuccarelli,

Jane Kay, Kyra Japan, F. E. Woodson, Rebecca Murphy,

Owanah Anderson, Sharon Metz, Norma Barquet,

Richard Allen, Brenda P. Simmons, Thomas Barnes,

Daisy Wood, Jean Gore, Aida Bound, Patricia Marshall,

Monique Hitch, L. Neels, Janeen Cornish, Christine

Jansen, Janice Netherland, Melissa Burkhart, Joe

Gaskins, Shan Goshorn, Mannie Jackson

5

Protest letter Nat’l Coalition on Racism in Sports & the Media (non-

67, p. 133;

Native American) to Jack Kent Cooke, Oct. 8, 1993

(dup) 92, p. 115

5

Protest letter Killian Jordan (non-Native American) to Jack Kent

67, p. 134;

Cooke, Oct. 8, 1993

(dup) 92, p. 116

5

Protest letter Eve Roberts (non-Native American) to Jack Kent Cooke, 67, p. 139;

Oct. 8, 1993

(dup) 92, p. 121

5

Protest letter Pat Moon (non-Native American) to Jack Kent Cooke,

67, p. 141;

Oct. 8, 1993

(dup) 92, p. 123

5

Protest letter Andrea Utrie (non-Native American) to Jack Kent Cooke, 67, p. 148;

Oct. 8, 1993

(dup) 92, p. 130

5

Protest letter Mario Obledo (non-Native American) to Jack Kent Cooke, 67, p. 151;

Oct. 5, 1993

(dup) 92, p. 133

5

Protest letter Andrea Newman & Benjamin Wegner (non-Native

67, p. 152;

Americans) to Jack Kent Cooke, Mar. 8, 1993

(dup) 92, p. 134

PROTEST LETTERS WITH NO SOURCE OR NO DATE

5

Protest letter R. Schmidt (non-Native American) to J. Cooke, undated, 63, p. 88-90

with attached Tim Giago What’s in a Name?Racism

editorial excerpt (Grand Forks Herald, Feb. 13, 1988)

147

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5

Protest letter Donald Tobbin (non-Native American) to Jack Kent

63, p. 87

Cooke, undated, with Tim Giago We are Human Beings,

not Mascots editorial excerpt (Grand Falls Tribune, Feb.

16, 1988)

5

Protest letter Jean Baker (non-Native American) to Jack Kent Cooke, 63, p. 124

undated (date stamped “JKC Inc. Mar. 1, 1988”)

5

Protest letter Douglas G. Yeager (non-Native American) to Jack Kent 63, p. 138

Cooke, undated (date stamped “JKC Inc. June 1, 1988”)

5

Protest letter Susan L. Peters (non-Native American) to Jack Kent

63, p. 145

Cooke, undated

5

Protest letter George C. Dyers (non-Native American) to Jack Kent

63, p. 157

Cooke, undated (date stamped “JKC Inc. Oct. 30, 1991”)

5

Protest letter Jesse Seitel (a minor and non-Native American) to Jack 63, p. 176

Kent Cooke, undated (date stamped “JKC Inc. Dec. 26,

1991”)

5

Protest letter Unnamed author to Jack Kent Cooke, Mar. 12, 1992

67, pp. 35-36

5

Protest letter Unsigned letter to Jack Kent Cooke, undated (date

67, pp. 35-36

stamped “JKC Inc. Mar. 13, 1992”)

5

Protest letter Rochelle Weisser (non-Native American) to Jack Kent

67, p. 40

Cooke, undated (date stamped “JKC Inc. Mar. 18, 1992”)

5

Protest letter Friends of Washington to unspecified, undated (date

67, p. 50

stamped “JKC Inc. Apr. 16, 1992”)

5

Protest letter Dargie Anderson (a minor and non-Native American) to 67, p. 73

Jack Kent Cooke, undated (date stamped “Redskin Park

Oct. 22, 1992”)

5

Protest letter Robert Owens (non-Native American) to Jack Kent

67, p. 74

Cooke, undated (date stamped “Redskin Park Oct. 30,

1992”)

5

Protest letter Unnamed author to “Sir,” Jan. 15, 1993

67, pp. 80-81

5

Protest letter Jenny Sauronski (non-Native American) to John Kent

67, p. 94

Cooke, undated (date stamped “Sep. 13 Rec’d”)

5

Protest letter Karen Muler (non-Native American) to Jack Kent Cooke, 67, p. 137;

undated

(dup) 92, p. 119

5

Protest letter James Fite (non-Native American) to Jack Kent Cooke, 67, p. 138;

undated

(dup) 92, p. 120

32 Protest letter Maggie Gover, to Mary Jo Manning, undated

77, p. 8

REPORTS, INCL. EXPERT PREPARATION MATERIALS

71 Report

Report & Recommendation of the Dartmouth Alumni

91, pp. 42-52

Counsel Indian Symbol Study Committee, June 15, 1972

148

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77 & Cover memo, John Roy Castillo, Dir., Mich. Dep’t of Civil Rights, to

91, pp. 93-191,

78 report, &

Native American Organizations, Nov. 7, 1986, & Mich.

194-95

executive

Civil Rights Comm’n Report on Use of Nicknames, Logos

summary

and Mascots Depicting Native Am. People in Mich. Educ.

Institutions, Oct. 1988

86 Executive

Carol Hand, Deputy Dir., Great Lakes Inter-Tribal

95, pp. 15-16

summary

Council, Inc., Am. Indian Study Comm. Executive

Summary of Testimony Presented Nov. 12, 1992

N/A Unpublished Nunberg Dep. Ex. 2 (first part): Expert Disclosure of

83, pp. 60-74

expert report Geoffrey Nunberg, June 10, 1996

N/A Cover memo Nunberg Dep. Ex. 3: Quantitative data results of

83, pp. 83-88

& summary of database search of terms, June 15, 1996

findings

N/A Unpublished Ross Dep. Ex. 3 (part): Expert Disclosure of Ivan Ross,

97, pp. 5-14;

expert report June 10, 1996;

(dup)

As Ross Dep. Ex. 5

84, pp. 75-84

N/A Study table, Ross Dep. Ex. 3 (part): Questionnaire, sample report,

97, pp. 30-202;

cover memo, table of results from March 2 and 6, 1996 surveys, with 84, pp. 4-59;

questionnaire, cover letter from Jim Robinson, Robinson & Muenster, to

& study

Ivan Ross, May 16, 1996;

As Ross Dep. Ex. 9

103, pp. 63-

208;

104, pp. 4-123;

105, pp. 4-26

N/A Study table

Ross Dep. Ex. 5 (part): Results Table

84, p. 85

N/A General file materials
N/A Unpublished expert report
N/A Unpublished expert report
N/A List
N/A List

Ross Dep. Ex. 6: File materials not in Ross Dep. Ex. 3
Hirschfelder Dep. Ex.8: Expert Disclosure of Arlene B. Hirschfelder, June 10, 1996 Hoxie Dep. Ex. 2: Expert Disclosure of Frederick E. Hoxie, June 10, 1996 Courtney Dep. Ex. 1: List of films for potential “Redskins” citations Courtney Dep. Ex. 2: List of screened films

84, pp. 87-110 107, pp. 110-16 107, pp. 125-34 105, pp. 33-34 105, p. 35

NA Footage transcription
N/A Notes
N/A List

Courtney Dep. Ex. 4: Index including transcription of footage of Courtney Dep. Ex. 3 – footage of major motion picture productions
Courtney Dep. Ex. 5: Working notes for “Redskins” film research
Hirschfelder Dep. Ex. 3: Listing of expert’s publications

105, pp. 37-41
105, pp. 42-62 106, pp. 18-20

N/A Unpublished LaFromboise Dep. Ex. 2: Expert Report of Theresa D. expert report LaFromboise, June 10, 1996

108, pp. 29-38

149

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Source

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Ex.

Ref. No.

N/A Notes

Nunberg Dep. Ex. 33: Notes for deposition on denotation 108, pp. 100-01

and connotation

N/A Notes

Nunberg Dep. Ex. 34: Notes for deposition on

108, pp. 102-07

distinguishing informal from connotative terms

N/A Notes

Nunberg Dep. Ex. 37: Excerpts from 19th century novels 86, p. 37

N/A List N/A Notes N/A List

Nunberg Dep. Ex. 38: Listing of citations from database search of “redskins” referring to Indians
Nunberg Dep. Ex. 39: Distinguishing informal from connotative terms
Nunberg Dep. Ex. 42: Listing of names of sports teams

86, pp. 38-49 86, pp. 50-54 92, pp. 151-52

N/A Formula N/A Raw data

Ross Dep. Ex. 156: Response rate formulas, detailed, and in sample reports
Ross Dep. Ex. 159: Data from North American study

92, pp. 175-78 92, pp. 188-90

N/A Unpublished Ross Dep. Ex. 160: Jacob Jacoby, Study of Consumer

93, pp. 4-25

study

Association & Confusion Regarding Retractable Tape

Measures (1988)

N/A Sample

Ross Dep. Ex. 161: In-Store Study Main Questionnaire

93, pp. 26-34

questionnaire (1991)

N/A Sample

Ross Dep. Ex. 162: In-Store Study Main Questionnaire

93, pp. 35-42

questionnaire (Feb. 1987)

N/A List

Ross Dep. Ex. 201: Cover memo & ranking of Native Am. 93, pp. 104-07

populations by U.S. counties, Mar. 11, 1996

N/A List

Ross Dep. Ex. 202: Estimates of population by U.S.

94, pp. 4-81

counties by race and Hispanic origin (July 1, 1994)

N/A List

Ross Dep. Ex. 203: Listing of top 50 U.S. counties with 94, pp. 82-83

highest numbers of Native Americans, based on 1994

census

N/A List

Ross Dep. Ex. 204: Listing of petitioners’ top 50 U.S.

94, pp. 84-85

counties of Native American population, based on 1994

census

RESOLUTIONS (THIRD-PARTY) OPPOSING USE OF “REDSKINS”

3

Resolution

Nat’l Congress of Am. Indians, Resolution No. EX DC-93- 63, pp. 71-77;

11, Resolution in Support of the Petition for Cancellation

of the Registered Services Marks of the Washington

Redskins AKA Pro-Football Inc. (Jan. 18-19, 1993);

(dup)

As Chase Dep. Ex. 108

83, pp. 47-48

4

Resolution

Cent. Conference of Am. Rabbis, “Racism” Resolution

63, p. 79,

Adopted by the 103rd Annual Convention, calling upon (dup) 67, p. 49;

the Atlanta Braves and Washington Redskins to combat

racial stereotyping (Apr. 1992);

As Stevens Dep. Ex. 2

94, pp. 96-97

150

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Source

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Ex.

Ref. No.

4

Resolution

Am. Jewish Comm., Portland, Or., Resolution opposing, 63, p. 80;

inter alia, use of racial or ethnic stereotypes in the names

or titles of sport entities when the affected group has not

chosen the name itself (passed Sept. 2, 1992), Oct. 21,

1992

(dup)

As Kahn Dep. Ex. 1

108, p. 16

4

Resolution

Unity ’94, “Mascot Resolution” to discontinue use, inter 63, p. 81

alia, of Native American nicknames, logos and mascots

(July 27, 1994);

As Swanston Dep. Ex. 1

94, p. 127

RESOLUTIONS (THIRD-PARTY) SUPPORTING USE OF “REDSKINS”

N/A Resolution

Nunberg Dep. Ex. 41 (part): Inter-Tribal Council, Inc.

88, pp. 124-27

Resolution (1992), with cover letter from Modoc Tribe of

Okla., Jan. 16, 1992

SOLICITATION LETTERS

5

Solicitation

Solicitation from Edward E. Williams to Jack Kent

63, p. 144

Letter

Cooke, undated and topic of letter not related to the

Redskins name

5

Solicitation

Solicitation from John Martin Meeks to Redskins GM,

63, pp. 160,

Letter

Nov. 5, 1991

162

SUPPORT LETTERS INDICATING INDIVIDUAL AUTHORS ARE NATIVE AMERICANS

N/A Support letter Nunberg Dep. Ex. 41 (part): George B. Tsoodle (Kiowa

88, p. 30

Indian) to Washington Redskins, undated [in 1988

labeled folder]

N/A Support letter Nunberg Dep. Ex. 41 (part): Princess Palemoon

88, pp. 92-93

(Cherokee/Ojibwa) to Jack Kent Cooke, Nov. 6, 1991

N/A Support letter Nunberg Dep. Ex. 41 (part): M. Henson (Blackfoot

92, p. 72

Indian) to Sen. Ben Nighthorse Campbell, July 22, 1993

SUPPORT CORRESPONDENCE INDICATING NATIVE AMERICAN TRIBAL SUPPORT

N/A Support letter Nunberg Dep. Ex. 28: Stanley G. Jones Sr., Chairman, 83, p. 157;

Tulalip Tribes (Wash.), to Redskin Support Comm., Aug.

31, 1992;

(dup)

As Nunberg Dep. Ex. 41 (part)

92, p. 62

N/A Support letter Nunberg Dep. Ex. 29: Jerry G. Haney, Principal Chief, 83, p. 159

Seminole Nation of Okla., to Jack Kent Cooke, Wash.

Redskins, Jan. 23, 1992

N/A Support letter Nunberg Dep. Ex. 30: Hollis E. Roberts, Chief, Choctaw 83, pp. 161-62;

Nation of Okla., to Charlie Dayton, V.P., Wash. Redskins

Communications Dep’t, Jan. 23, 1992;

(dup)

Nunberg Dep. Ex. 41 (part)

88, pp. 135-38

N/A Support letter Nunberg Dep. Ex. 27: Floyd E. Leonard, Chief of the

83, pp. 154-55;

Miami Tribe of Oklahoma, to C. A. Buser, June 21, 1991; (dup)

As Nunberg Dep. Ex. 41 (part)

88, pp. 76-77

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Ex.

Ref. No.

N/A Support letter Nunberg Dep. Ex. 41 (part): Stan Jones Sr., Chairman, 88, pp. 86-89

Tulalip Tribes (Wash.), to Sen. John McCain, Oct. 30,

1991

N/A Support fax Nunberg Dep. Ex. 41 (part): J. Lisanby, Sioux Indians of 88, p. 128

Fort Totten, N.D. to Charlie Drayton, Redskins Park,

Jan. 17, 1992

N/A Support letter Nunberg Dep. Ex. 31: Robert J. Salgado, Chairman,

83, p. 164;

Soboba Band of Mission Indians, to Jack Kent Cooke,

(dup) 88, pp.

Wash. Redskins, Jan. 17, 1992;

129,

As Nunberg Dep. Ex. 41 (part) ;

133;

As Stevens Dep. Ex. 10

94, p. 113

N/A Support letter Nunberg Dep. Ex. 41 (part): Jerry G. Haney, Principal

88, p. 134

Chief, Seminole Nation of Okla., to Jack Kent Cooke, Jan.

23, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Catherine Elston, PR Office, 92, p. 65

Hopi Tribe, to Jo Walter, July 16, 1992

N/A Support letter Nunberg Dep. Ex. 25: Jonathan L. Taylor, Principal

83, p. 150;

Chief, Eastern Band of Cherokee Indians, to Jo Walter,

July 16, 1992;

(dup)

As Nunberg Dep. Ex. 41 (part)

92, p. 66

N/A Support letter Nunberg Dep. Ex. 26: Merna L. Lewis, V.P., Pima-

83, p. 152;

Maricopa Indian Community (Ariz.), to Jo Walter, July 14, 1992;
As Nunberg Dep. Ex. 41 (part)

(dup) 92, p. 67

N/A Support letter Nunberg Dep. Ex. 41 (part): Ronald R. Julian, Council

92, p. 147

Member, Jicarilla Apache Tribe (Dulce, N.M.) to Rick

Vaughn, Wash. Redskins, Sept. 8, 1994

SUPPORT LETTERS NOT INDICATING AUTHORS ARE NATIVE AMERICANS

N/A Support letter Nunberg Dep. Ex. 41 (part): James Patrick Thomas to

88, p. 31

Jack Kent Cooke, Feb. 13, 1988

N/A Support letter Nunberg Dep. Ex. 41 (part): Gwen Eggebraaten to Jack 88, p. 32

Kent Cooke, Feb. 23, 1988

N/A Support letter Nunberg Dep. Ex. 41 (part): E. H. Paulsen to Jack Kent 88, p. 33

Cooke, Feb. 24, 1988

N/A Support letter Nunberg Dep. Ex. 41 (part): W. J. Bryant to Jack Kent 88, pp. 34-36;

Cooke, undated (date stamped “JKC Inc. Feb. 29, 1988”) (dup) 41-45

N/A Support letter Nunberg Dep. Ex. 41 (part): Brenda Chilstrom to Jack

88, p. 37

Kent Cooke, Feb. 22, 1988

N/A Support letter Nunberg Dep. Ex. 41 (part): George W. T. Hughes to

88, pp. 38-39

Jack Kent Cooke, Feb. 21, 1988

N/A Support letter Nunberg Dep. Ex. 41 (part): L. M. (Pat) Egan to Jack

88, pp. 46-47

Kent Cooke, undated (date stamped “JKC Inc. Mar. 1,

1988”)

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Source

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Ex.

Ref. No.

N/A Support letter Nunberg Dep. Ex. 41 (part): Karen Goeke to Jack Kent 88, p. 49

Cooke, undated (date stamped “JKC Inc. Mar. 14, 1988”)

N/A Support letter Nunberg Dep. Ex. 41 (part): John B. Garrett, Jr. to Jack 88, p. 50

Kent Cooke, Mar. 10, 1988

N/A Support letter Nunberg Dep. Ex. 41 (part): Robert N. Huey to Jack Kent 88, p. 51

Cooke, Mar. 12, 1988

N/A Support letter Nunberg Dep. Ex. 41 (part): Jane Rush to Jack Kent

88, p. 52

Cooke, Mar. 17, 1988

N/A Support letter Nunberg Dep. Ex. 41 (part): Sylvia L. Cash to Jack Kent 88, pp. 53-54

Cooke, Apr. 18, 1988

N/A Support letter Nunberg Dep. Ex. 41 (part): Robert H. Paschall to Jack 88, p. 55

Kent Cooke, Apr. 21, 1988

N/A Support letter Nunberg Dep. Ex. 41 (part): Wilcomb E. Washburn to

88, pp. 57-58

John Kent Cooke, Jr., Apr. 25, 1988, with his WASH.

POST editorial, Apr. 23, 1988, at A23, attached

N/A Support letter Nunberg Dep. Ex. 41 (part): Evie Braman to Jack Kent 88, p. 61

Cooke, May 10, 1988

N/A Support letter Nunberg Dep. Ex. 41 (part): Lucky Tomblin to Donnie

88, pp. 62-63

Tuck, Pub. Relations Dir., Wash. Redskins, May 23, 1988

N/A Support letter Nunberg Dep. Ex. 41 (part): Art Nelson to Jack Kent

88, pp. 66-68

Cooke, Mar. 9, 1989

N/A Support letter Nunberg Dep. Ex. 41 (part): Ronald N. Paul to Jack Kent 88, pp. 69-71

Cooke, Mar. 1989

N/A Support letter Nunberg Dep. Ex. 41 (part): Robert N. Huey to Jack Kent 88, pp. 73-74

Cooke, Mar. 29, 1989, with AP, Indian Band Dislikes

Nickname Campaign, Sioux Falls Argus Leader (S.D.),

Mar. 23, 1989, attached

N/A Support letter Nunberg Dep. Ex. 41 (part): Karen E. Elkins to Jack

88, pp. 78-79

Diamond, MIX 107.6 (DC radio station), Oct. 23, 1991

N/A Support letter Nunberg Dep. Ex. 41 (part): Rusty Briarton to Jack Kent 88, p. 80

Cooke, Oct. 23, 1991

N/A Support letter Nunberg Dep. Ex. 41 (part): Francis J. Donnelly to Jack 88, p. 81

Kent Cooke, Oct. 26, 1991

N/A Support letter Nunberg Dep. Ex. 41 (part): Harry J. Gould to President, 88, pp. 82-85

Wash. Redskins, Oct. 28, 1991, with Norm Frauenheim,

No Reservations: Arizona’s Braves Proud of Nickname,

[no shown date], at C1, C10, attached

N/A Support letter Nunberg Dep. Ex. 41 (part): Robert D. Kohn to Jack Kent 88, p. 90

Cooke, Nov. 4, 1991

N/A Support letter Nunberg Dep. Ex. 41 (part): Don Blevins to Jack Kent

88, p. 91

Cooke, Nov. 4, 1991

N/A Support letter Nunberg Dep. Ex. 41 (part): Tony Hurley to Jack Kent 88, pp. 94-95

Cooke, Nov. 22, 1991

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Source

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Ex.

Ref. No.

N/A Support letter Nunberg Dep. Ex. 41 (part): Tony Gourse to Jack Kent 88, pp. 96-97

Cooke, Nov. 25, 1991

N/A Support letter Nunberg Dep. Ex. 41 (part): David T. Read to Jack Kent 88, pp. 98-99

Cooke, Nov. 26, 1991

N/A Support letter Nunberg Dep. Ex. 41 (part): Hal W. Pattison to Joy J.

88, pp. 100-01

Hanley, Assoc. on Am. Indian Affairs, Inc., Nov. 28, 1991

N/A Support letter Nunberg Dep. Ex. 41 (part): Wm. D. Lillard to Wash.

88, p. 102

Redskins, Nov. 28, 1991

N/A Support letter Nunberg Dep. Ex. 41 (part): Mark Naeser to Jack Kent 88, p. 103

Cooke, undated (date stamped “JKC Inc. Dec. 10, 1991”)

N/A Support letter Nunberg Dep. Ex. 41 (part): Wilcomb E. Washburn to

88, pp. 104-12,

John Kent Cooke, Jr., Dec. 24, 1991, with his typescript 120

of magazine article, attached

N/A Support letter Nunberg Dep. Ex. 41 (part): Patricia Parker Levi to

88, pp. 114-18

Charlie Dayton, Wash. Redskins, Jan. 2, 1992, with

public relations campaign proposal attached

N/A Support letter Nunberg Dep. Ex. 41 (part): Billie J. Hipsley to Wash.

88, pp. 121-22

Redskins, Jan. 13, 1992, with Mark Holmberg, What’s All

the Fuss About ‘Skins, Richmond Times-Dispatch, [no

shown date], at C5, attached

N/A Support letter Nunberg Dep. Ex. 41 (part): A. Neal Kellum to Redskins 88, p. 123

Pub. Relations, Jan. 14, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Harry M. Hittle to Jack

88, pp. 130-32

Kent Cooke, Jan. 22, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Joe Davis to Jack Kent

88, pp. 139-42

Cooke, Jan. 27, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Philip A. May to Wash.

88, p. 144

Redskins Dir. Pub. Relations, Jan. 27, 1992

N/A Support

Nunberg Dep. Ex. 41 (part): U.S, House of

88, pp. 145-47

letters

Representatives, Comm. on Public Works & Transp. to

Charlie Dayton, Pub. Relations, Feb. 13, 1992, with

letters from schoolchildren attached

N/A Support letter Nunberg Dep. Ex. 41 (part): Wm. L. Wilkoff to Jack Kent 88, p. 148

Cooke, Feb. 27, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): John Mull to Jack Kent

88, p. 149

Cooke, Feb. 27, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Patti H. Snodgrass to Jack 88, p. 150

Kent Cooke, Feb. 29, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Steve Lerman to Jack Kent 88, p. 151

Cooke, Mar. 4, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): William P. Conway to Jack 88, p. 152

Kent Cooke, Mar. 4, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Concetta C. Goetzinger to

88, p. 153

Sports Editor of the Times, Mar. 4, 1992

154

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NR Entry Type

Source

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Ex.

Ref. No.

N/A Support letter Nunberg Dep. Ex. 41 (part): Robert Mirin to John Kent 88, p. 154

Cooke, Mar. 4, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Dianna Belcher to Wash.

88, p. 155

Redskins, Mar. 5, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Concetta C. Goetzinger to

88, p. 156

Wash. Redskins, Mar. 5, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Gary L. Gallahan to Jack

88, p. 157

Kent Cooke, Mar. 5, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Ned Fuller to Letter to the 88, pp. 159-60

Editor, Wash. Post, Mar. 6, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): A. Wayne Coley to Jack

88, p. 161

Kent Cooke, Mar. 6, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): M. E. Murphy to Jack Kent 88, p. 162

Cooke, Mar. 6, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Don Craig to Jack Kent

88, p. 163

Cooke, Mar. 10, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): R. E. Kidwell to Jack Kent 88, p. 164

Cooke, Mar. 13, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Arthur P. McDermott to

88, p. 165

Jack Kent Cooke, Mar. 14, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Peter Byrum to Jack Kent 88, p. 166

Cooke, Mar. 15, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Randy Cross to Jack Kent 88, pp. 167-68

Cooke, undated (date stamped “JKC Inc. Mar. 20, 1992”)

N/A Support letter Nunberg Dep. Ex. 41 (part): Concetta C. Goetzinger to

88, p. 170

Jack Kent Cooke, Mar. 15, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Margaret Cichocki to Jack 88, p. 171

Kent Cooke, Mar. 16, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): James A. Joyner, Jr. to Gen. 88, pp. 172-73

Mgr., WTOP Radio, Mar. 16, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Richard O. Cunningham to 88, pp. 174-75

WTOP Radio, Mar. 17, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): John T. & Mildred R.

88, p. 176

Sheperd to Jack Kent Cooke, Mar. 17, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Kenneth C. Allen to Jack

88, p. 177

Kent Cooke, Mar. 17, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Louise M. Saylor to Letter to 88, p. 179

the Editor, Wash. Post, Mar. 17, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Bill Ramsay to Jack Kent

88, pp. 180-81

Cooke, Mar. 18, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Nicholas T. Yaworski to

92, p. 4

Michael Douglass, GM, WTOP Radio, Mar. 18, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): James E. Felten to Michael 92, p. 5

Douglass, WTOP Radio, Mar. 18, 1992

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Source

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Ex.

Ref. No.

N/A Support letter Nunberg Dep. Ex. 41 (part): Theodore W. Bremer to Jack 92, p. 6

Kent Cooke, Mar. 17, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Helen & Edward Beaver to 92, p. 7

Jack Kent Cooke, Mar. 20, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Alexander Polett to Jack

92, p. 8

Kent Cooke, Mar. 21, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Ricardo J. Martinez to Jack 92, pp. 9-14

Kent Cooke, Mar. 21, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): William F. Jr. & Velma L. 92, p. 15

Kidwell to Jack Kent Cooke, Mar. 23, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Francis J. Donnelly to

92, p. 18

Michael Douglass, GM, WTOP Radio, Mar. 24, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Francis J. Donnelly to Jack 92, p. 19

Kent Cooke, Mar. 25, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Charles E. Reed to Wash.

92, pp. 22-23

Redskins, Mar. 27, 1992, with his letter to the editor

Undeserved Names are Offensive, Mont. Std., Mar. 25,

1992, at 4, attached

N/A Support letter Nunberg Dep. Ex. 41 (part): Arthur W. Arundel to Jack 92, pp. 24-25

Kent Cooke, Mar. 26, 1992, Charles E. Reed to Wash.

Redskins, Mar. 27, 1992, with his editorial Keep the

Name, Fauquier Times-Democrat, Mar. 26, 1992,

attached

N/A Support letter Nunberg Dep. Ex. 41 (part): John Milot to Jack Kent

92, p. 26

Cooke, Mar. 30, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Eddie M. Bryant Sr. to Jack 92, p. 27

Kent Cooke, Mar. 31, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Robert S. Hubbard to Jack 92, p. 28

Kent Cooke, Apr. 3, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Paul Sheldon to Jack Kent 92, p. 29

Cooke, Apr. 9, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): J. V. Richard Kaufman to

92, pp. 30-31;

Jack Kent Cooke, Apr. 14, 1992, with enclosed photos

identified as taken at the Red Mesa High School on a

Navaho reservation in northern Ariz., showing “Home of

the Redskins” signs;

(dup)

As Stevens Dep. Ex. 9

94, p. 111

N/A Support letter Nunberg Dep. Ex. 41 (part): Michael John Nisos to Jack 92, pp. 33-34

Kent Cooke, undated (date stamped “JKC Inc. Apr. 28,

1992”), with photo indicating it shows “Redskin” Indian-

named movie theater located in Andarko, Okla.

156

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Ex.

Ref. No.

N/A Support letter Nunberg Dep. Ex. 41 (part): Ruth Walkup to Jack Kent 92, pp. 35-38

Cooke, Aug. 1, 1992, with enclosed photo identified as

taken at the Red Mesa High school on a Navaho

reservation in Tonelea, Ariz., showing “Home of the

Redskins” sign

N/A Support letter Nunberg Dep. Ex. 41 (part): George P. Morse to Jack

92, p. 39

Kent Cooke, Aug. 5, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Mary Beth Hughes to Jack 92, p. 40

Kent Cooke, undated (date stamped “JKC Inc. Aug. 27,

1992”)

N/A Support letter Nunberg Dep. Ex. 41 (part): Priscilla J. Fritz to Letters 92, pp. 41-42

to the Editor, Wash. Post, Sept. 2, 1992, with enclosed

photo identified as being from the “Redskin Motel” on a

Cherokee Indian Reservation

N/A Support letter Nunberg Dep. Ex. 41 (part): James Brewster Hopewell to 92, pp. 43-44

Jack Kent Cooke, Sept. 14, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): James R. Martin to Jack

92, pp. 45-46

Kent Cooke, Sept. 15, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Dr. Wil Rose, CEO, Am.

92, pp. 47-49

Indian Heritage Found. to Douglas B. Comer, USPTO

Acting Comm’r, Sept. 21, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Dr. Wil Rose, CEO, Am.

92, pp. 50-53

Indian Heritage Found. to John Cooke, Sept. 21, 1992,

with letter sent to the USPTO attached

N/A Support letter Nunberg Dep. Ex. 41 (part): Bob Burns to Jack Kent

92, pp. 54-55

Cooke, Oct. 1, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): C. A. Buser to Jack Kent

92, pp. 56-57

Cooke, Oct. 5, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Charles B. Rosenak to

92, p. 58

Charles Dayton, Wash. Redskins, Oct. 8, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Dolle Nichols & Jo Walter to 92, pp. 56-68

Jack Kent Cooke, Nov. 16, 1992, with Stanley G. Jones

Sr., Chairman, Tulalip Tribes, Aug. 31, 1992, Paul J.

Biscula, Penobscot Indian Nation, Aug. 31, 1992, Coeur

d’Alene Tribe of Idaho, July 20, 1992, Catherine Elston,

Hopi Tribe, July 16, 1992, Jonathan L. Taylor, Principal

Chief, Eastern Band of Cherokee Indians, July 16, 1992,

Merna L. Lewis, V.P., Salt River Pima-Maricopa Indian

Community, July 14, 1992, Mike Mayer, July 10, 1992,

attached

N/A Support letter Nunberg Dep. Ex. 41 (part): Cliff Rodgers to Jack Kent 92, p. 69

Cooke, July 30, 1993

N/A Support letter Nunberg Dep. Ex. 41 (part): Susan Giller to Jack Kent 92, p. 70

Cooke, May 10, 1993

157

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NR Entry Type

Source

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Ex.

Ref. No.

N/A Support letter Nunberg Dep. Ex. 41 (part): Robert Camp Littleton, July 92, p. 73

11, 1993

N/A Support letter Nunberg Dep. Ex. 41 (part): J. E. Schumach to Jack Kent 92, p. 74

Cooke, July 11, 1993

N/A Support letter Nunberg Dep. Ex. 41 (part): James Kevin Campbell to

92, p. 76

Jack Kent Cooke, Aug. 20, 1993

N/A Support letter Nunberg Dep. Ex. 41 (part): Jeffrey L. Rosen to Jack

92, pp. 149-50

Kent Cooke, July 3, 1995, regarding Red Mesa High

School Redskins

SUPPORT LETTERS WITH NO SOURCE OR NO DATE

N/A Support letter Nunberg Dep. Ex. 41 (part): Philip A. Severson to Jack 88, p. 40

Kent Cooke, undated

N/A Support letter Nunberg Dep. Ex. 41 (part): Chuck to Jack Kent Cooke, 88, p. 72

Mar. 16, 1989

N/A Support letter Nunberg Dep. Ex. 41 (part): Ted Smyrna to Sir, undated 88, p. 169

N/A Support letter Nunberg Dep. Ex. 41 (part): Ann & Robert Anderson to 88, p. 182

Jack Kent Cooke, undated (date stamped illegible)

N/A Support letter Nunberg Dep. Ex. 41 (part): Ronald M. Eng to Letter to 88, pp. 183-84

Editor, Wash. Post, undated (date stamped illegible)

N/A Support letter Nunberg Dep. Ex. 41 (part): [unknown author] to

92, p. 16

Michael Douglass, WTOP-AM, Mar. 23, 1992

N/A Support letter Nunberg Dep. Ex. 41 (part): Bob Ryan to “Sir,”, undated 92, p. 17

(date stamped “JKC Inc. Mar. 26, 1992”)

N/A Support letter Nunberg Dep. Ex. 41 (part): writing of letter illegible,

92, p. 21

Mar. 19, 1992

USPTO APPLICATION SERIAL NO. 74311697

33 USPTO Office Charles M. Bottorff, Trademark Attorney, USPTO, to

77, pp. 24-61

Action

Atlantic Publ’g Group, Section 2(a) disparagement & false

association, Section 2(d), & Section 2(e)(1) refusals,

including evidence, ownership inquiry and specimen

requirements, issued Jan. 8, 1993

USPTO REGISTRATIONS AT ISSUE

8

Registration Registrations (with renewals) at issue

68, pp. 6-13

Certificates

N/A Registration Stevens Dep. Ex. 8: Certified copy of U.S. Reg. No.

94, p. 109

986,668, issued June 18, 1974, for a term of 20 years

158

Cancellation No. 92046185

Appendix A – Petitioners’ Submissions of Harjo Petitioners’ First, Fifth, Sixth & Tenth

Notices of Reliance (“NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

USPTO REGISTRATIONS—NIGGER HEAD & RELATED MARKS

31 Registration Registrations: Reg. No. 54,864, for “NIGGER HEAD

61, pp. 21-44

Certificates

BRAND” & design, used on fruits and vegetables

hermetically sealed, issued July 31, 1906; Reg. No.

57,575, for “NIGGER HEAD” & design, used on oysters

and shrimp, issued Nov. 13, 1906; Reg. No. 136,444, for

“NIGGER HEAD” & design, used on stove polish, issued

on Nov. 2, 1920; Reg. No. 158,452, for “NIGGERHED” &

design, used on electric lamp sockets, electric lamp cover

sockets, and electric lamp plugs; Reg. No. 160,641, for

“NIGGERHEAD COAL” in special form, used on coal,

issued on Oct. 24, 1922; Reg. No. 178,611, for “NIGGER

BRAND” & design, used on dates, issued Jan. 15, 1924;

Reg. No. 186,950, for “NIGGER CANE IN DE PATCH” in

special form, used on cane syrup for food purposes, issued

July 22, 1924, with first renewal on July 22, 1944; Reg.

No. 217,067, for “NIGGER BABY BRAND TURN ON

THE JUICE” & design, used on fresh oranges and

grapefruit, issued Aug. 24, 1926, with first renewal on

Aug. 24, 1946; Reg. No. 221,097, for “NIGGER HEAD” &

design, used on golfing tees, clubs and grips, issued on

Nov. 23, 1926; Reg. No. 301,747, for “NIGGER HEAD

PRIZE ICE CREAM” & design, used on novelty confection

consisting of chocolate-covered molded ice cream, issued

Mar. 14, 1933; and Reg. No. 623,209, for “NEGRO HEAD”

in special form, used on canned oysters and shrimps,

issued Mar. 13, 1956

159

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

BOOKS, ESSAYS, GUIDES, SCHOLARLY PAPERS & JOURNAL ARTICLES

8

Book excerpt James Joyce, Ulysses 324-25 (1946);

129, pp. 34-36

[As Barnhart Dep. Ex. 6]

13

Book excerpt Elizabeth Pickette (Chevalier), Redskin 1-7, 28-29, 34- 175, pp. 13-42;

35, 46-49, 56-57, 84-85, 90-91, 102-03, 128-29, 134-37,

158-61, 164-67, 190-91, 200-01, 224-25, 246-247, 256,

274-75 (1929);

As Butters Dep. Ex. 7 (part)

167, pp. 12-41

14.1 Essay in book Philip Rahv, Paleface & Redskin, Image & Idea: Twenty 175, pp. 43-49;

Essays on Literary Themes 1-6 (1957);

As Butters Dep. Ex. 9 (part)

170, pp. 4-10

14.2 Essay in book Philip Rahv, Paleface & Redskin, Essays on Literature & 175, pp. 50-59;

Politics 1932-1972, at 3-7 (1978);

As Butters Dep. Ex. 9 (part): Essays on Literature &

Politics 1932-1972, at v-xi, 3-7 (1978)

170, pp. 11-20

14.3 Book excerpt Philip Rahv, Paleface & Redskin, Image & Idea:

175, pp. 60-62;

Fourteen Essays on Literary Themes, tbl of contents

(1949);

As Butters Dep. Ex. 9 (part)

170, pp. 21-23

14.4 Book excerpt Sanford Pinsker, Theoretical Palefaces/Neo-Realistic

175, pp. 63-73;

Redskins, or Why the Ghost Paleface & Redskin, in

Neo-Realism in Contemporary Am. Fiction 51-64 (1992);

As Butters Dep. Ex. 9 (part)

170, pp. 24-34

15

Commentary Vine Deloria, Jr., Commentary: Research, Redskins, and 175, pp. 74-81

in journal

Reality, Am. Indian Q. 457-68 (Fall 1991)

16

Book cover

Vine Deloria, Jr., Red Earth White Lies: Native

175, pp. 82-83

Americans and the Myth of Scientific Fact (1995)

59

Book excerpt William G. Zikmund, Exploring Marketing Research

153, pp. 34-41;

462-68 (4th ed. 1991);

As Jacoby Dep. Ex. 5

174, pp. 11-18

60

Guidelines

Adver. Res. Found., Guidelines for the Public Use of

153, pp. 42-56;

Market & Opinion Research (1981);

As Jacoby Dep. Ex. 7

174, pp. 20-34

65

Article in

Ward Churchill, et al., Media Stereotyping & Native

151, pp. 64-67

journal

Response, 11 Indian Historian 49, 56 (1978)

69

Book excerpt Harry V. Sucher, The Iron Redskin (1990)

152, pp. 9-14

70

Book excerpt Jerry Hatfield, Illustrated Indian Motorcycle Buyer’s

Guide: All the Iron Redskins from 1901, at 145-46

(1989)

N/A Book excerpt James Joyce, Ulysses 324-25 (1946)

152, pp. 16-19 162, pp. 81-83

N/A Book excerpt Butters Dep. Ex. 3: Mary Brave Bird, Ohitika Woman 6- 164, pp. 23-37
9, 18-21, 42-43, 58-61, 119, 144-45, 158, 59, 168-69, 18081, 192-93 (1993)

160

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

N/A Article in

Butters Dep. Ex. 4: Roy C. O’Donnell, Freedom and

164, pp. 38-66

manuscript

Restrictions in Language Use (1992)

form

N/A Article in

Butters Dep. Ex. 5: John McCluskey, Dictionaries and 164, pp. 67-75

manuscript

Labeling of Words Offensive to Groups, with Particular

form

Attention to the Second Edition of the OED (1990)

N/A Book excerpt Butters Dep. Ex. 7 (part): E. R. Hagemann, Fighting

164, pp. 42-45

Rebels and Redskins: Experiences in Army Life of

Colonel George B. Sanford 1861-1892, title page (1969)

N/A Book excerpt Butters Dep. Ex. 9 (part): Joan Beam & Barbara

170, pp. 35-45

Branstad, Native American in Long Fiction: An

Annotated Bibliography vii-xv, 20-21, 148-149, 186-87

(1996)

N/A Book excerpt Butters Dep. Ex. 27: Carl Waldman, Word Dance: The 165, pp. 47-59

Language of Native American Culture vii-ix, 26-27, 94-

95, 106-07, 166-67, 192-93, 202-04, 222-23 (1994)

BUSINESS COMMUNICATIONS BETWEEN RESPONDENT & THIRD-PARTIES AND

INTERNAL COMMUNICATIONS (UNLESS UNDER OTHER HEADING)

22

Response to John Kent Cooke to Joseph F. K. Mayhew, Mar. 26, 1992 142, p. 12

support letter

23

Response to John Kent Cooke to Robert Salgado, Soboba Band of

142, p. 13

support letter Mission Indians, Mar. 5, 1992

25

Business

John Kent Cooke, Redskins, to Susan T. Fletcher, Phila. 142, p. 26;

letter

Eagles, Sept. 22, 1983;

As Cooke Dep. Ex. 2

156, p. 6

26

Business

John Kent Cooke, Redskins, to Nate Pope, NPC &

142, p. 27;

letter

Associates, Aug. 10, 1987;

As Cooke Dep. Ex. 4

156, p. 8

29.1 Business

Dale Pullen, U.S. Congress Handbook, to Charlie

142, p. 43

letter

Dayton, Wash. Redskins, June 3, 1991

29.2 Business

Harry J. Gould to Pres., Wash. Redskins, Oct. 28, 1991, 142, pp. 44-45

letter

with No Reservations: Arizona’s Braves Proud of

Nickname, Ariz. Republic, undated, at C1, C10

49

Cover memo John Kent Cooke Sr. to Jack Kent Cooke, Aug. 24, 1993, 149, p. 43;

on WTOP

regarding WTOP Surveys;

survey

As Cooke Dep. Ex. 6 (part)

156, p. 10

49

Business

Tom McKinley, WTOP, to Charlie Dayton, Wash.

149, pp. 44-45;

memo

Redskins, Aug. 24, 1993, regarding survey results;

As Cooke Dep. Ex. 6 (part)

156, pp. 12-13

N/A Internal

Cooke Dep. Ex. 3: Paul E. Denfeld, to John Kent Cooke, 156, p. 7

memo

Subject: Chief Z, May 19, 1987

N/A Business

Cooke Dep. Ex. 5: John Kent Cooke, Redskins, to Ercle 156, p. 9

letter

F. Herbert Jr., Herbert & Herbert Inc., Dec. 18, 1987

161

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

N/A Business

Cooke Dep. Ex. 7: John Kent Cooke Jr., Dir. of

156, p. 40

facsimile

Promotions, to Craig Kapp, McCann-Erickson USA,

Sept. 13, 1993, regarding ad campaign

N/A Internal

Cooke Dep. Ex. 13: John Kent Cooke to file, Nov. 22,

156, pp. 85-86

memo

1991, regarding BIA meeting

N/A Internal

Cooke Dep. Ex. 14: John Kent Cooke to Charlie Dayton, 156, pp. 90-91

memo

July 30, 1993, regarding contacts of supportive Indian

tribal leaders

N/A Internal

Cooke Dep. Ex. 15: John Kent Cooke to Charlie Dayton, 156, p. 92

memo

Sept. 16, 1992, regarding blessing Redskin Park

N/A Internal

Cooke Dep. Ex. 16: John Kent Cooke to file, Jan. 9,

156, p. 87

memo

1992, regarding AIM & options

N/A Internal

Cooke Dep. Ex. 17: John Kent Cooke to Jack Kent

156, pp. 88-89

memo

Cooke, Jan. 16, 1992, regarding AIM & options

N/A Response to Cooke Dep. Ex. 18: John Kent Cooke to Wilcomb E.

156, p. 93

support letter Washburn, Jan. 9, 1992

N/A Cease &

Cooke Dep. Ex. 22: Stuart A. Haney, Counsel, Wash.

157, pp. 7-8

desist letter Redskins, to Benjamin D. Severson, Atl. Publ’g Grp.,

June 5, 1990

N/A Response to Cooke Dep. Ex. 24: John Kent Cooke to Wilcomb E.

157, p. 11

support letter Washburn, Apr. 21, 1992

N/A Response to Cooke Dep. Ex. 25 (part): Jack Kent Cooke to M. Henson, 157, p. 12

support letter Aug. 3, 1992

N/A Response to Cooke Dep. Ex. 26: Jack Kent Cooke, Redskins, to

157, pp. 15-16

support letter James Kevin Campbell, Sept. 2, 1993, with James Kevin

Campbell to Jack Kent Cooke, Aug. 20, 1993

CORRESPONDENCE BETWEEN THIRD PARTIES

N/A Business

Cooke Dep. Ex. 1:

156, pp. 4-5

letter

Susan T. Fletcher, Phila. Eagles, to Marilyn Z. Kutler,

Municipal Services Bldg., re: Parking Lot Incident

During Wash. Redskins Game at Veterans Stadium

Sept. 11, 1983, Sept. 16, 1983

CORRESPONDENCE BY PETITIONERS’ COUNSEL

67

Business

Michael Drysdale to Teresa D. LaFromboise, May 8,

151, pp. 69-77

letter

1996, regarding expert testimony draft

68

Business

Laurie Scalon to Teresa D. LaFromboise, Dec. 5, 1996, 151, p. 78

letter

regarding prepared expert report

CORRESPONDENCE WITH RESPONDENT’S HARJO COUNSEL

N/A Business

Barnhart Dep. Ex. 7: David K. Barnhart to Nadine

162, pp. 84-86

letters &

Flynn, April 16, 1996; John Paul Reiner to David K.

check stub

Barnhart, Apr. 22, 1996, with check stub indicating

retainer fee payment

N/A Business

Barnhart Dep. Ex. 8: David K. Barnhart to John Reiner, 160, pp. 4-5

letter & bill June 22, 1996, with bill for expert witness services

162

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

N/A Business

Barnhart Dep. Ex. 9: [sender’s name not shown], White 160, p. 6

letter (partial & Case, to David K. Barnhart, June 24, 1996

N/A Business

Butters Dep. Ex. 11: Letters between Ronald R. Butters 172, pp. 6-19

letters & bills and Nadine P. Flynn, and invoices

CURRICULA VITAE

7

CV

David K. Barnhart;

129, pp. 31-33;

As Barnhart Dep. Ex. 2

162, pp. 14-16

10

CV

Ronald R. Butters;

129, pp. 53-61;

As Butters Dep. Ex. 1

164, pp. 4-12

62

CV

Jacob Jacoby, Jan. 1996;

151, pp. 5-48;

As Jacoby Dep. Ex. 1

168, pp. 4-47

DEPOSITIONS & SUBPOENAS TO GIVE TESTIMONY/PRODUCE EVIDENCE

N/A Deposition

John Kent Cooke Dep., Mar. 26, 1996

154, pp. 4-66

N/A Deposition

John Kent Cooke Dep., Mar. 27, 1996

155, pp. 4-74

N/A Deposition

Richard L. Vaughn Dep., Mar. 28, 1996

158, pp. 4-176

N/A Deposition

David K. Barnhart Dep., Dec. 19, 1996

159, pp. 4-141

N/A Deposition

David K. Barnhart Dep., Apr. 9, 1997

161, pp. 4-50

N/A Subpoena N/A Deposition

Barnhart Dep. Ex. 1: Subpoena Ad Testificandum & Duces Tecum on David Barnhart & Lexik House Publishers, Dec. 13, 1996
Ronald R. Butters Dep., Dec. 20, 1996

162, pp. 4-13 163, pp. 4-66

N/A Deposition

Ronald R. Butters Dep., Apr. 10, 1997

163, pp. 67-106

N/A Subpoena N/A Deposition

Butters Dep. Ex. 2: Subpoena Ad Testificandum & Duces 164, pp. 13-22

Tecum on Ronald Butters, Dec. 13, 1996

Jacob Jacoby Dep., Apr. 8, 1997

166, pp. 4-114

5.1 Definition 5.2 Definition 5.3 Definition 5.4 Definition 5.5 Definition
5.6 Definition 5.7 Definition
5.8 Definition 5.9 Definition 5.10 Definition

DICTIONARIES Webster’s New American Dictionary 823 (1965)
World Book Dictionary, Vol. 2, 1633 (1967)
Int’l Webster New Encyclopedic Dictionary (1975)
Am. Heritage Dictionary of the English Language (1976)
Webster’s New Twentieth Century Dictionary of the English Language Unabridged 1513 (2d ed. 1977) HBJ School Dictionary 612 (1977)
Thorndike/Barnhart Doubleday Advanced Dictionary 855 (1979) Webster’s New Collegiate Dictionary (1980)
World Book Dictionary, Vol. 2, 1752 (1979)
Am. Heritage Dictionary of the English Language 1082 (1981)

128, pp. 91-92 128, pp. 93-94 128, pp. 95-96 128, pp. 97-98 128, pp. 99-100
128, pp. 101-02 128, pp. 103-04
128, pp. 105-06 128, pp. 107-08 128, pp. 109-10

163

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

19

Definition

Am. Heritage College Dictionary 375, 400, 947 (3d ed.

142, pp. 5-9

1993)

41

Definition

Am. Heritage School Dictionary (1977);

143, pp. 22-23;

As Butters Dep. Ex. 26

165, p. 46

N/A Introduction Butters Dep. Ex. 6 (part): Explanatory notes, The

164, pp. 76-89

& definition English Language in the Dictionary, & “redskin”

definition, Merriam Webster's Collegiate Dictionary 17a-

19a, 23a-30a, 980 (10th ed. 1993)

N/A Introduction Butters Dep. Ex. 6 (part): Preface to the Second Edition, 164, pp. 90-101

& definition Preface to the First Edition, Usage: Change and

Variation, Labels, “redskin” definition, Random House

Dictionary of the English Language vii-x, xxi-xxiv, 1618

(2d ed. 1987)

N/A Introduction Butters Dep. Ex. 20: Geoffrey Nunberg, Usage in the

173, pp. 54-67

& definition American Heritage Dictionary: The Place of Criticism,

definitions of “derogatory,” “disparage,” “Indian,”

“Native American,” “offensive,” and “redskin,” Am.

Heritage College Dictionary xvi-xxi, 375, 400, 691, 908,

947, 1145 (3d ed. 1993)

FILM FOOTAGE (DVD OF VHS-FORMATTED MATERIAL)

52

Footage

Scene from Courage Under Fire (1996) (on file with

149, p. 72

excerpt

TTAB)

GAME PROGRAM PAGES (PITTSBURGH STEELERS)

N/A Program front As Cooke Dep. Ex. 12 (part): Sept. 29, 1957 (from

156, p. 82

page

Pittsburgh Steelers Football Club)

GAME PROGRAMS, PRESS GUIDES & FACT BOOKS, OFFICIAL MAGAZINES,

YEARBOOKS & ANNIVERSARY ISSUES (WASHINGTON REDSKINS)

24.1 Magazine

Redskins vs. Cleveland Browns, Oct. 21, 1956 front cover 142, p. 14

cover

24.2 Magazine

Redskins vs. N.Y. Giants, Nov. 18, 1956 front cover

142, p. 15

cover

24.3 Magazine

Redskins vs. Cleveland Browns, Nov. 17, 1957 front

142, p. 16

cover

cover

24.4 Magazine

Redskins vs. Pittsburgh Steelers, Dec. 7, 1958 front

142, p. 17

cover

cover

24.5 Magazine

Redskins vs. Pittsburgh Steelers, Oct. 18, 1959 front

142, p. 18

cover

cover

24.6 Magazine

Redskins vs. Balt. Colts, Nov. 8, 1959 front cover

142, p. 19

cover

24.7 Magazine

Redskins vs. Phila. Eagles, Dec. 7, 1958 front cover

142, p. 20

cover

24.8 Magazine

Redskins vs. Dall. Cowboys, Oct. 9, 1958 front cover

142, p. 21

cover

164

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

24.9 Magazine

Redskins vs. Pittsburgh Steelers, Oct. 23, 1960 front

142, p. 22

cover

cover

24.10 Magazine

Redskins vs. Cleveland Browns, Oct. 30, 1960 front cover 142, p. 23

cover

24.11 Magazine

Redskins vs. St. Louis Cardinals, Nov. 20, 1960 front

142, p. 24

cover

cover

24.12 Magazine

Redskins vs. N.Y. Giants, Dec. 11, 1960 front cover

142, p. 25

cover

N/A Yearbooks

Cooke Dep. Ex. 9: Washington Redskins, Official 1987 156, pp. 43-55

(partial)

Team Yearbook, Limited Edition, front cover, & &

photos of players in uniform, marching band,

Redskinettes & pageantry, & 1937-1986 Washington

Redskins, Official 50th [1987] Anniversary Team

Yearbook, images of 6 helmets bearing various logos,

reproduction of historic cartoon, articles, 1947 game

advertisement for Redskins vs. Giants at the Polo

Grounds, fight song lyrics, & photos of players in

uniform, marching band, Redskinettes & pageantry

N/A Program front Cooke Dep. Ex. 12 (part): Undated

156, pp. 65-81

covers

N/A Fact book

Cooke Dep. Ex. 12 (part): Do You Remember? 1937 ,

156, p. 83

(partial)

undated

N/A Program front Cooke Dep. Ex. 12 (part): Sept. 21, 1958 (shows cartoon 156, p. 84

cover

reprinted from Evening Star (Wash.), Dec. 17, 1936)

LEGISLATIVE MATERIALS

64

Fed. Reg.

Indian Entities Recognized & Eligible to Receive

151, pp. 57-63;

Notice

Services from the U.S. BIA, 60 Fed. Reg. 9250 (Feb. 16,

1995);

As Jacoby Dep. Ex. 4

174, pp. 4-10

MARKETING MATERIALS

N/A Catalog

Cooke Dep. Ex. 20: 1985 NFL Merchandise Catalog,

157, pp. 4-5

including Redskins’ merchandise

MISCELLANEOUS

2

Logo

Depiction of Washington Redskins’ logo, showing the

128, p. 84

head of an Indian in profile, wearing feathers, within a

circle, which has two feathers attached

3

Logo

Depiction of football helmet bearing Washington

128, p. 85

Redskins’ logo, described above

4

Court

Petition for Cancellation in the Harjo proceeding, with 128, pp. 86-90

document

cover letter from the TTAB, mailed Oct. 5, 1992

39

Logo

Depiction indicated as a Native American wearing feathers, developed by Onekema schools in conjunction
with an American Indian group

143, p. 19

165

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

40

Brochure

Bureau of Indian Affairs, U.S. Dep’t of the Interior, You 143, pp. 20-21

Asked About . . . Indian Ancestry, with BIA Area Office

Listing

53

Coin

Indian head nickel (1937)

149, p. 73

54

Packaging

Image of Land O’Lakes-brand butter carton

153, p. 4

55

Packaging

Image of Indian Head-brand yellow corn meal bag

153, pp. 5-9

57

Packaging

Image of Argo-brand corn starch box

153, p. 13

66

Drawing

Drawing of profile of Native American wearing

151, p. 68

headband and feathers

N/A Draft

Vaughn Dep. Ex. 27: Draft with handwritten notes, with 158, pp. 177-78

fax cover sheet from Charlie Dayton to Jack Kent Cooke

PERIODICAL MATERIALS—ADVERTISING/MARKETING BY THIRD PARTIES,

INCLUDING ITEMS IN THIRD-PARTY PUBLICATIONS

43.18 Newspaper

Safeway advertisement, Meet a Redskin Football Star, 148, p. 27

advertisement Wash. Post & Times Herald, Oct. 10, 1958, at A18

43.26 Newspaper

Janitor Supply Co., Good Luck Redskins for a Clean

148, p. 36

advertisements Sweep, & Maggie’s Restaurant, Good Luck for the

Season! Welcome Redskins, WASH. DAILY NEWS, Sept.

19, 1958, at 37

PERIODICAL MATERIALS—CARTOONS

N/A Cartoon N/A Cartoon N/A Cartoon N/A Cartoon N/A Cartoon N/A Cartoon N/A Cartoon

Cooke Dep. Ex. 12 (part): Jim Berryman, No Time For Shadow Boxing, EVENING STAR (Wash.), Nov. 14, 1943 (handwritten) (Redskins v. Lions)
Cooke Dep. Ex. 12 (part): Jim Berryman (caption cutoff), EVENING STAR (Wash.), Oct. 19, 1943 (handwritten) (point of cartoon is unknown)
Cooke Dep. Ex. 12 (part): Redskins 1960, undated and unidentified publication (team wins)
Cooke Dep. Ex. 12 (part): Viewpoints, FORT WORTH STAR TELEGRAM (Tex.), Nov. 21, 1979, at 14A (Indian runs away with the turkey as prize)
Cooke Dep. Ex. 12 (part): Jim Berryman, Still Sitting— But Not Pretty!, EVENING STAR (Wash.), Nov. 17, 1941 (handwritten) (Bears challenging Redskins)
Cooke Dep. Ex. 12 (part): Jim Berryman, Hang On Boy, He Might Stumble, WASH. POST, Nov. 17, 1941 (handwritten) (Redskins unafraid of Giants)
Cooke Dep. Ex. 12 (part): Jim Berryman, Full of Food— And Fight!, unidentified publication, Nov. 24, 1950 (handwritten) (Bears winning history)

156, p. 58 156, p. 59 156, p. 60 156, p. 61 156, p. 62 156, p. 63 156, p. 64

166

Cancellation No. 92046185

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Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

N/A Cartoon

Cooke Dep. Ex. 12 (part): Jim Berryman, Wonder How 156, p. 59

We’ll Get Along, reprinted from Wash. Star, 1937,

undated and unidentified source (on Redskins move to

DC from Boston)

PERIODICAL MATERIALS —SOURCED & DATED

12

Book review Joseph Leo Koerner, Paleface and Redskin, New

175, pp. 4-12;

in magazine Republic, Mar. 24, 1997, at 30-32, 34-38 (reviewing Aby

M. Warburg, Images from the Region of the Pueblo

Indians of N. Am.);

As Butters Dep. Ex. 25

165, pp. 37-45

17

Newspaper

Cowed by the Soldiers, N.Y. TIMES (handwritten), Nov. 175, pp. 84-86

article

26, 1890 (handwritten)

18

Newspaper

Abandoning the Craze, ROCKY MTN. NEWS

142, p. 4

article

(handwritten), Nov. 26, 1890 (handwritten)

31.1 Newspaper article

Redskins Sign Indian, WASH. DAILY NEWS, Mar. 10, 1959, 143, p. 4 at 37

31.2 Newspaper

An Indian Joins the Redskins, WASH. DAILY NEWS, July 143, p. 5

article

27, 1959

43.7 Newspaper

Little Mo and Bride, EVENING STAR (Wash.), Jan. 25,

148, p. 11

photo/caption 1954

43.10 Newspaper

Lewis F. Atchison, Biggest Crowd in 10 Years May See 148, pp. 14-15

article

Redskins-Colts, EVENING STAR (Wash.), Nov. 5, 1957, at

C-1

43.16 Newspaper

Dave Slattery, Here’s What’s Wrong With the Redskins, 148, pp. 22-23

letter to the

WASH. DAILY NEWS, Nov. 7, 1958, at 52

editor

43.30 Newspaper

Lewis F. Atchison, Redskins Plan to Start Olszewski in 148, p. 40

article

Opener, EVENING STAR (Wash.), Sept. 27, 1958, at A-13

43.35 Newspaper

Lewis F. Atchison, Redskins Crippled But ‘Up’ for Rams’ 148, pp. 46-47

article

Battle Tonight, EVENING STAR (Wash.), Aug. 21, 1959;

Lewis F. Atchison, Redskins’ Hopes Dim for Game with

Rams, EVENING STAR (Wash.), Aug. 30, 1959

43.36 Newspaper

Jack Walsh, Bears Favored by 4 ½ Points Over Redskins, 148, pp. 48-49

article

WASH. POST, Sept. 5 1959 (handwritten), at A11, A15;

Lewis F. Atchison, Day Will Start for Redskins Against

Bears, EVENING STAR (Wash.), Sept. 5, 1959

44.5 Newspaper

Lewis F. Atchison, Redskins Cheered by News on

150, p. 8

article

Stadium, EVENING STAR (Wash.), Mar. 6, 1961

44.6 Newspaper

Tom Yorke, Redskin Coaches Kick HBs Around, WASH. 150, p. 9

article

DAILY NEWS, Oct. 26, 1961, at S7

44.7 Newspaper

Lewis F. Atchison, Davis Drafted by Redskins; & [no

150, pp. 10-11

articles

author shown], Collins Claimed by Browns, & Chance for

Promised Land Blown by Jittery Redskins, EVENING

STAR (Wash.), Dec. 4, 1961 (handwritten)

167

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

44.9 Newspaper

Dave Brady, Redskins Receive $250,000 for Radio-TV; & 150, pp. 13-16

article &

Bob Addie’s Column . . ., WASH. POST (handwritten),

commentary Aug. 30, 1961 (handwritten)

44.11 Newspaper

Tom Yorke, Redskins & 18 Face the Eagles, WASH. DAILY 150, pp. 18-19

article

NEWS, Sept. 23, 1961

44.12 Newspaper

Morris Siegel, Siegel at Large, Redskins Luncheon: Who 150, pp. 20-21

commentary Said What, WASH. STAR,, May 1, 1963 (handwritten) &

& article

Lewis F. Atchison, Redskin Board Set to Change Club

Control, WASH. STAR,, May 2, 1963 (handwritten)

44.14 Newspaper

Five Redskins to Serve in Guard During March,

150, p. 23

article

EVENING STAR (Wash.), Aug. 27, 1963 (handwritten)

44.18 Newspaper

Tom Yorke, Jayne Scores for Redskins and Bears, WASH. 150, p. 29

article

DAILY NEWS, June 25, 1963

44.20 Newspaper

Dave Brady, Redskins Landed Tom Urbanik with

150, pp. 31-32

article

$120,000 Contract, Benefits, WASH. POST, Feb. 25, 1965,

at F1

44.21 Newspaper

Redskins Add Exhibition with Eagles, WASH. POST

150, p. 33

article

(handwritten), Apr. 16, 1965 (handwritten)

44.22 Newspaper

Dave Brady, Huff Can Hardly Hold Delight with

150, pp. 34-35

article

Redskins, WASH. POST, July 29, 1965

44.25 Newspaper

Lewis F. Atchison, Redskins Give Graham Complete

145, p. 9

article

Authority, EVENING STAR (Wash.), Jan. 25, 1966, at A19

44.26 Newspaper

Lewis F. Atchison, Redskins Take On Ex-Howard Coach, 145, p. 10

articles

EVENING STAR (Wash.) (handwritten), Feb. 27, 1966;

Dave Brady, White Named to Full-Time Redskin Job,

Wash. Post, Feb. 27, 1966

44.27 Newspaper

Dave Brady, Graham Won’t Tolerate Any Loafing,

145, pp. 11-12

article

Promises ‘Some Changes’ for, WASH. POST , Mar. 23,

1966 (handwritten)

44.28 Newspaper

Lewis F. Atchison, Franchise Bids Bring Out Pros,

145, p. 13

articles

EVENING STAR (Wash.), Mar. 19, 1966, at S8, & Dave

Brady, Marshall’s Children Fail in Attempt to Remove

Redskins’ Conservators, WASH. POST (handwritten), May

21, 1966 (handwritten)

44.29 Newspaper

Lewis F. Atchison, Graham Plans Snowden Test as Tight 145, p. 14

articles

End, EVENING STAR (Wash.), May 24, 1966

(handwritten), Tom Yorke, Redskins Set Training Date,

WASH. DAILY NEWS, May 24, 1966

44.30 Newspaper

Bob Addle, 5 Redskin Join Fellow of Christian Athletes, 145, p. 15

articles

WASH. POST, Oct 22, 1966, at E5

44.31 Newspaper

Tom Yorke, Williams is ‘Conspiring,’ Says Jailed GPM 145, p. 16

article

Jr., WASH. DAILY NEWS, Jan. 13, 1967

44.32 Newspaper

Sailors Sign Deal With Redskins, Wash. Post, Feb. 3,

145, p. 17

article

1967

168

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

44.33 Newspaper

Dave Brady, Kurharich Sees Redskins up to 40%

145, p. 18

article

Impoved, WASH. POST, May 18, 1967 (handwritten)

44.34 Newspaper

Redskins Play Basketball Game on Friday Night, WASH. 145, p. 19

article

POST (handwritten), Feb. 26, 1967 (handwritten)

44.35 Newspaper

Dick O’Brien, Ex-Redskin Pounding Pins, EVENING STAR 145, p. 20

article

(Wash.), Feb. 24, 1967

44.37 Newspaper

Dave Brady, Ad Fails Fan in Redskins’ Ticket Quest,

145, p. 22

article

WASH. POST (handwritten), Mar. 29, 1967 (handwritten)

44.38 Newspaper

Early Birds in Redskin Ticket Line, EVENING STAR

145, p. 23

photo

(Wash.), Apr. 29, 1967, at A-14

44.39 Newspaper

45 Redskin Rookies to Open Drills at Dickinson Tuesday, 145, p. 24

article

Evening Sentinel (Carlisle, Pa.) (handwritten), July 15,

1967 (handwritten)

44.40 Newspaper

Dave Brady, Jerry Allen Finds Identity, Running Room 145, p. 25

article

as Redskin, WASH. POST, Aug. 24, 1967

44.41 Newspaper

Redskin Sold Out for Seven Home Football Games in

145, p. 26

article

1967, Evening Sentinel (Carlisle, Pa.) (handwritten),

Aug. 29, 1967 (handwritten)

44.42 Newspaper

Tom Yorke, Redskin Sellouts Aren’t Limited to Sundays, 145, p. 27

commentary WASH. DAILY NEWS, Sept. 20, 1967

44.44 Newspaper

Claudia Baskin, Redskins’ Wives Winning Team,

145, p. 29

article

EVENING STAR (Wash.) (handwritten), Oct. 31, 1967

(handwritten)

44.45 Newspaper

Tom Yorke, GPM Changed—Ditto His Team, WASH.

145, pp. 30-31

article

DAILY NEWS, Nov. 3, 1967

44.46 Newspaper

Tom Yorke, For Otto . . . It’s Still Diet Soda, WASH.

145, p. 32

article

DAILY NEWS, Nov. 7, 1967

44.47 Newspaper

Dave Brady, Redskins’ Game Now ‘Off Board,’ WASH.

145, pp. 33-34

article

POST, Nov. 18, 1967 (handwritten)

44.48 Newspaper

Dave Brady, Redskins Land McDonald, WASH. POST,

145, p. 35,

article

Mar. 30, 1967, at C-1

146, pp. 4-5

44.49 Newspaper

Dave Brady, Redskins Expect Effortless ’68 Sellout,

146, pp. 6-7

article

WASH. POST, Feb. 27, 1968

44.50 Newspaper

Tom Yorke, Another Mr. Smith in Washington, WASH.

146, p. 8

article

DAILY NEWS, May 13, 1968

44.52 Newspaper

William Gildea, Kammerer Claims 90% of Redskins

146, pp. 10-11

article

Support Walkout by Players in NFL, WASH. POST, July

13, 1968 (handwritten)

44.53 Newspaper

William Gildea, Harbingers of Peace in NFL Precede

146, p. 12

article

Today’s Key Meeting, WASH. POST, July 14, 1968

(handwritten)

44.54 Newspaper

Redskins Notes, EVENING STAR (Wash.) (handwritten), 146, p. 13

article

July 28, 1968 (handwritten)

169

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Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

44.55 Newspaper

Tom Yorke, The Menu: Redskins Under Glass, WASH.

146, p. 14

article

DAILY NEWS, Aug. 1, 1968 (handwritten)

44.57 Newspaper

Dave Brady, Rock Wants to be a Redskin but 49ers

146, pp. 16-17

article

Remain Adamant, WASH. POST, Sept. 7, 1968

44.59 Newspaper

Tom Yorke, Wooten Joins Redskins Amid Hairy

146, pp. 19-20

article

Controversy, WASH. DAILY NEWS, Aug. 14, 1968

44.60 Newspaper

Dave Brady, Graham Names Theofiledes Quarterback

146, pp. 21-22

article

Starter Friday, WASH. POST , Aug. 15, 1968

(handwritten)

44.62 Newspaper

Dave Brady, Redskins Upend Bears, 38-28, WASH. POST, 146, pp. 24-25

article

Sept. 16, 1968

44.63 Newspaper

Lewis F. Atchison, Redskin Personality, EVENING STAR 146, p. 26

article

(Wash.), Sept. 29, 1968 (handwritten)

44.70 Newspaper

AP, All-1930s Team Lists Leemans and 3 Redskins,

146, p. 35

article

EVENING STAR (Wash.), Aug. 26, 1969

44.2– Newspaper

Leonard Shapiro, Redskins Hit Bill to Bail Out Short,

149, pp. 5-6

44.3 article

Wash. Post, Mar. 30, 1971, at D1, D3

45.9 Newspaper

Steve Guback, Allen Signing Means Little to Redskins, 149, p. 13

article

EVENING STAR (Wash.), July 15, 1977

46.1 Newspaper

Joann Stevens, Flick Signs for Redskins, Charity, Wash. 149, p. 15

article

Post, June 18, 1981, at D4

46.2 Newspaper article
46.4 Newspaper article
46.6 Newspaper article
46.8 Newspaper article
47.2 Newspaper article (partial)
47.3 Newspaper article
47.5 Newspaper article
47.6 Newspaper article
47.7 Newspaper article
47.8 Newspaper article

Paul Attner, Redskins ’81: Revamped, But Still a Mystery, Wash. Post, July 12, 1981
Redskins’ Vets Unfazed by Draft, Wash. Times, May 2, 1984, at 9B
Bob O’Donnell, Defense a Maneater, According to ‘Jaws,’ Wash. Times, Sept. 8, 1986, at 7C
Christine Brennan, Redskins Never Look Back, 41-14, Wash. Post, Nov. 24, 1986 (handwritten), at D1, D7
Redskins Owner, District Near Deal on New Stadium (continued from previous [not include] page), Wash. Post, June 11, 1991, at E4
Matt Neufeld, Questions About New Redskins Stadium Unsolved, Wash. Times, May 11, 1993 (handwritten), at A1, A8
A Tossup: Area Football Fans Cheer—and Boo— Proposed Move, SUN (Balt.), Dec. 8, 1993
Matt Neufeld, Redskin Opens Learning Center, Wash. Times, Dec. 15, 1993 (handwritten)
David Aldridge, Veteran Friesz Likely to Join Redskins, Wash. Post, Apr. 16, 1994, at G1, G7
David Elfin, No. 2 Johnson Must Wait Until Redskins Sign Shuler, Wash. Times, June 7, 1994 (handwritten)

149, p. 16 149, pp. 18-19 149, p. 21 149, p. 23 149, p. 27
149, pp. 28-29
149, p. 31 149, p. 32 149, pp. 33-34 149, p. 35

170

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

47.10 Newspaper

AP, Redskins’ Stadium Plan on Fast Track, N. Va. Daily 149, p. 38

article

(typed), June 29, 1995 (typed)

N/A Newspaper

Cooke Dep. Ex. 11:

156, p. 57

article

Leonard Shapiro, Indian Group to Stage Protest Sunday

at RFK, Wash. Post, Oct. 31, 1991, at B3

PERIODICAL MATERIALS—UNDATED AND/OR UNIDENTIFIED PUBLICATION

20

Publication

Title not shown, undated and unidentified publication

142, p. 10

article

30

Newspaper

Redskins’ Charley Malone Becomes Chief Flying

142, p. 60

photo, ledger Thunder, undated and unidentified publication

42

Newspaper

Numerous clippings of articles, photos and cartoons,

144, pp. 4-43

clippings

undated and from unidentified publications, some

illegible, identified by Respondent as dated from 1940 to

1949, and identified as using the “Redskins” in the

context of professional football

43.1– Newspaper Numerous clippings of articles and photos, undated,

148, pp. 4-10,

43.6, clippings

illegible and/or from unidentified publications, identified 12-13, 16-21,

43.8–

by Respondent as dated from 1950 to 1959, and

24-26

43.9,

identified as using the “Redskins” in the context of

43.10–

professional football

43.16,

43.17

43.19– Newspaper Numerous clippings of articles, photos and

148, pp. 28-35,

43.25, clippings

advertisements, undated, illegible and/or from

37-39, 41-45,

43.27–

unidentified publications, identified by Respondent as

50-52

43.29,

dated from 1950 to 1959, and identified as using the

43.31–

“Redskins” in the context of professional football

43.34,

43.37–

43.39

44.1 Newspaper

Stereo Disc Made of Redskins March, undated and

150, p. 4

article

unidentified publication

44.2 Newspaper

Vast New D.C. Stadium Begins to Take Shape, Wash.

150, p. 5

photo

Post, undated

44.3 Newspaper

Jack Walsh, Marshall Asking that Dallas Play in

150, p. 6

article

Division with Redskins, undated and unidentified

publication

44.4 Newspaper

Tom Yorke, Stadium to be Ready Oct. 1, unknown

150, p. 7

article

publication, Mar. 6, 1961

44.8 Newspaper

Rookie Redskin Tackle Temporarily Paralyzed, EVENING 150, p. 12

clipping

STAR (Wash.), undated

44.10 Newspaper

They’ll See Redskins Opener, undated and unidentified 150, p. 17

photo

publication

171

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

44.13 Newspaper

Dave Brady, Kennedy Observance Set by Redskins

150, p. 22

article

Sunday, undated and unidentified publication

44.15 Newspaper

Lewis F. Atchison, Redskins, Eagles Denied Bid to

150, p. 24

article

Postpone Game, EVENING STAR (Wash.), undated

44.16 Newspaper

Jack Walsh, Redskins Humiliated by New York: Giants 150, pp. 25-27

article

Steal 7 Passes, Win, 44-14, undated and unidentified

publication, at C1

44.17 Newspaper

Tom Yorke, 3 Bears Escaped the Redskins, unidentified 150, p. 28

article

publication, Dec. 30, 1963

44.19 Newspaper

Dave Brady, Redskins Are Up 650% in New Customer

150, p. 30

article

Sales, unidentified publication, Jan. 16, 1965

(handwritten)

44.23 Newspaper

Bus Ham, Redskins’ Star Out 2 to 4 Weeks, Wash. Post, 145, p. 4

article

undated, at C1-C2

44.24 Newspaper

Various clippings, undated and unidentified publications 145, pp. 5-8

clippings

44.36 Newspaper

Dave Brady, Redskins Play for CYO, Children’s Hospital, 145, p. 21

article

Wash. Post, undated

44.43 Newspaper

Elizabeth Shelton, Redskins’ Wives Wouldn’t Suit Up,

145, p. 28

photos &

WASH. POST, undated

article

44.51 Newspaper

Lewis F. Atchison, Redskins Trade for Beban, Sign

146, p. 9

article

Fischer, EVENING STAR (Wash.), June 14, 1968, copy

illegible

44.56 Newspaper

Dave Brady, Redskins Count Cash, Not Blessings, Wash. 146, p. 15

article

Post, undated

44.58 Newspaper

Dave Brady, Redskins May Sign Wooten Today; Center of 146, p. 18

article

Browns’ Racial Dispute, WASH. POST, undated

44.60 Newspaper

Morris Siegel, Redskins ‘Fine’ With Fellowship, undated 146, p. 23

commentary and unidentified publication

44.66– Newspaper Numerous clippings from articles, undated and/or from 146, pp. 27-34

44.69 articles and unidentified publications, identified by Respondent as

clippings

dated from 1960 to 1969, and identified as using the

“Redskins” in the context of professional football

45.1 Newspaper

Two articles, Wash. Post, undated

149, p. 4

articles

45.4– Newspaper

Various articles, undated and/or from unidentified

149, pp. 7-12,

45.8, articles

publications, identified by Respondent as dated from

14

45.10

1970 to 1979, and identified as using the “Redskins” in

the context of professional football

46.3 Newspaper

Paul Attner, Miller Gives Redskins Glimpse of Long-

149, p. 17

article

Range Goals, Wash. Post, undated

46.5 Publication

State Police, Redskins Team Up to Fight Crime, undated 149, p. 20

clipping

and unidentified publication

172

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

46.7 Publication

Redskins Scouting Report, unidentified publication, July 149, p. 22

article

17, 1986 (handwritten)

46.9 Publication

Terrey Quindlen, Redskins Tell Pupils to Say ‘No’ to

149, p. 24

article

Drugs, undated and unidentified publication

46.10 Newspaper

Redskin Tickets Among Auction Prizes, Wash. Times,

149, p. 25

article

undated

47.1 Newspaper

Dave Bay, Redskins Fade at the Finish, Wash. Times,

149, p. 26

article

undated, at C1

47.4 Newspaper

Richard Tapscott & Dan Beyers, Schaefer to Fight

149, p. 30

article

Redskins Stadium, Wash. Post, undated

47.9 Newspaper

Dan Beyers, Redskins Play Stadium Game for Keeps,

149, pp. 36-37

article

Wash. Post, undated, at B1, B5

48.1 Newspaper

The President [Truman] Gets Annual Pass from Pro

149, p. 39

photo

Footballers, undated and unidentified publication

48.2 Newspaper

Sports by Ralph Cannon [including photo of Pres.

149, p. 40

article/photo Truman and George Marshall], undated and

unidentified publication

48.3 Newspaper

Vice President [Nixon] Lauds LeBaron’s Fine Play,

149, p. 41

article

undated and unidentified publication

48.4 Newspaper

Redskins Added to Nixon’s List, undated and

149, p. 42

article

unidentified publication

N/A Publication

Cooke Dep. Ex. 8: Morris Siegel, Washington’s Unifying 156, pp. 41-42

article

Force, undated and unidentified publication

PHOTOS (INDEPENDENTLY SUBMITTED)

32

Photos

Photos of school entrance and welcome signs displaying 143, pp. 6-7

“Home of the Redskins,” identified as located on a

Navaho reservation in northern Ariz.

34

Photo

Photo of crossing of “Navajo Trail” and “Redskin Blvd.” 143, pp. 9-10

Statement that roads are on Navajo Indian Reservation

in northeast Ariz., taken June 10, 1994

37

Photo

Photo of roadside billboard displaying “Round Rock

143, pp. 15-16

Public School Fighting Braves” and back of photo

describing location as Round Rock on Navajo Indian

Reservation in northeast Ariz, taken June 10, 1994

38

Photo

Photo of sigh for “Tuba City High Warriors” with design 143, pp. 17-18

of profile of man’s head with feathers, with back

description indicating taken on June 10, 1994, on Navajo

Indian Reservation in northeast Ariz.

PRESS RELEASES & POSITION STATEMENTS

N/A Press release Wash. Redskins undated statement that its name “was 142, p. 11;

never intended to offend anyone” and that “the name has

reflected positive attributes of the American Indian;”

As Cooke Dep. Ex. 10

156, p. 56

173

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

N/A Press release Vaughn Dep. Ex. 28: NFL Properties, Inc. press release 158, p. 179

regarding Morning Star Institute, Mar. 15, 1994

REPORTS, INCL. EXPERT PREPARATION MATERIALS

6

Unpublished Expert Disclosure of David K. Barnhart, with cover

129, pp. 4-30;

expert report letter, June 8, 1996;

As Barnhart Dep. Ex. 3

162, pp. 17-43

9

Unpublished Expert Disclosure of Ronald R. Butters, June 7, 1996;

129, pp. 37-52;

expert report As Barnhart Dep. Ex. 5;

162, pp. 65-80;

As Butters Dep. Ex. 21, with CV & handwritten notes; 173, pp. 68-92;

As Butters Dep. Ex. 23, with CV & handwritten notes

165, pp. 4-28

11

Notes

Notes of Ronald R. Butters: Redskin data;

129, pp. 62-66;

As Butters Dep. Ex. 7 (part)

167, pp. 4-11

49

Survey

Veritas Research, WTOP “Washington Redskins” Name 149, pp. 46-47;

questionnaire Survey form for metro area;

As Cooke Dep. Ex. 6 (part)

156, pp. 14-15

49

Table results Table showing completed calls to tribal leaders;

149, p. 48;

As Cooke Dep. Ex. 6 (part)

156, p. 16

49

Survey

Veritas Research, WTOP tribal leader questionnaire

149, p. 49;

questionnaire script;

As Cooke Dep. Ex. 6 (part)

156, p. 17

49

Survey results WTOP “Redskins” Name Survey results;

149, pp. 50-68;

As Cooke Dep. Ex. 6 (part)

156, pp. 18-38

50

Survey results Richard Morin, ‘America’s Team’ Has New Home:

149, pp. 69-70;

Washington, Wash. Post, Jan. 17, 1992, featuring Wash.

Post Super Bowl Poll;

As Cooke Dep. Ex. 23

157, pp. 9-10

58

Unpublished Jacob Jacoby, rebuttal report: Evaluating the June 10, 153, pp. 14-33;

expert report 1996 Expert Disclosure of Ivan Ross, Mar. 7, 1997;

As Jacoby Dep. Ex. 3, with CV

169, pp. 4-67

61

Notes

Notes of Jacob Jacoby regarding phone conversation

151, p. 4;

with Richard Maisel on Apr. 1, 1997;

As Jacoby Dep. Ex. 6

174, p. 19

63

Notes

Ronald Butters, rebuttal commentary: Some Comments 151, pp. 49-56

on Nunberg’s Testimony

N/A Unpublished Barnhart Dep. Ex. 4: Expert Disclosure of Geoffrey

162, pp. 44-64

expert report Nunberg, June 10, 1996, & CV, Apr. 1996

N/A Unpublished Barnhart Dep. Ex. 10: Expert Disclosure of Geoffrey

162, pp. 7-28

expert report Nunberg, June 10, 1996, CV, Apr. 1996, & fax

transmittal, showing handwritten comments

N/A Cover memo Barnhart Dep. Ex. 11: Geoffrey Nunberg, Quantitative 160, pp. 29-34

& summary of data results of database search of terms, June 15, 1996

findings

N/A Search result Barnhart Dep. Ex. 12: Lexis/Nexis printout of database 160, pp. 35-239

printouts

search results (various of 143,920 results)

174

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

N/A Cover letters Barnhart Dep. Ex. 13: Brian Ellner to David K.

160, pp. 240-

& search

Barnhart, May 13, 1996, & Brian L. Berlandi, Legal

451

result

Asst., White & Case, May 23, 1996, both letters with

printouts

Lexis/Nexis printout of database search results (various

of 4,999 results from search as conducted on May

23,1996)

N/A Unpublished Barnhart Dep. Ex. 14: Expert Disclosure of Ivan Ross, 160, pp. 452-

expert report June 10, 1996;

61;

As Jacoby Dep. Ex. 2

168, pp. 48-57

N/A Online

Butters Dep. Ex. 8: Online files—Redskin(s), with

167, pp. 46-98

printouts

handwritten notes

N/A Reference

Butters Dep. Ex. 10: Deposition Discovered Materials

171, pp. 4-130

materials

folder, with handwritten notes

N/A Handwritten Butters Dep. Ex. 12

172, pp. 19-22

notes

N/A Draft

Butters Dep. Ex. 13: Draft No. 1 of Expert Disclosure of 172, pp. 22-33

Ronald R. Butters, June 3, 1996

N/A Draft

Butters Dep. Ex. 14: Draft No. 2 of Expert Disclosure of 172, pp. 34-42

Ronald R. Butters, June 3, 1996

N/A Notes

Butters Dep. Ex. 15

172, pp. 43-66

N/A Draft

Butters Dep. Ex. 16: Preliminary Draft of Expert

172, pp. 67-96

Disclosure of Ronald R. Butters, June 6, 1996

N/A Draft

Butters Dep. Ex. 17: Preliminary Draft of Expert

172, pp. 97-128

Disclosure of Ronald R. Butters, June 7, 1996

N/A Database

Butters Dep. Ex. 18: Search results of books and articles 173, pp. 4-47

results

found on Duke U. library Internet access

N/A Listing

Butters Dep. Ex. 19: Listing of books in the Duke U.

173, pp. 48-53

from expert’s computer file

N/A Unpublished Butters Dep. Ex. 22: Expert Disclosure of Geoffrey

173, pp. 93-107

expert report Nunberg, June 10, 1996

N/A Comments

Butters Dep. Ex. 24: Some Comments on Nunberg’s

165, pp. 29-36

Testimony

RESOLUTIONS (THIRD-PARTY) SUPPORTING USE OF “REDSKINS”

27

Resolution

Inter-Tribal Council, Inc. Resolution (1992), with cover 142, pp. 28-29;

letter from Modoc Tribe of Okla., Jan. 16, 1992;

(dup)

As NR 28.2

142, pp. 32-33

SUPPORT LETTERS INDICATING INDIVIDUAL AUTHORS ARE NATIVE AMERICANS

29.11 Support letter George B. Tsoodle (Kiowa Indian) to Washington

142, p. 59

Redskins, undated

N/A Support letter Cooke Dep. Ex. 25 (part): M. Henson (Blackfoot Indian) 157, p. 13

to Sen. Ben Nighthorse Campbell, July 22, 1993

175

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

SUPPORT CORRESPONDENCE INDICATING NATIVE AMERICAN TRIBAL SUPPORT

28.1 Support letter Stan Jones Sr., Chairman, Tulalip Tribes (Wash.), to

142, pp. 30-31

Sen. John McCain, Oct. 30, 1991

28.3 Support letter Robert J. Salgado, Chairman, Soboba Band of Mission 142, p. 34

Indians, to Jack Kent Cooke, Wash. Redskins, Jan. 17,

1992

28.4 Support letter Hollis E. Roberts, Chief, Choctaw Nation of Okla., to

142, pp. 35-36

Charlie Dayton, V.P., Wash. Redskins Communications

Dep’t, Jan. 23, 1992

28.5 Support letter Jerry G. Haney, Principal Chief, Seminole Nation of

142, p. 37

Okla., to Jack Kent Cooke, Wash. Redskins, Jan. 23,

1992

28.6 Support letter Stanley G. Jones Sr., Chairman, Tulalip Tribes (Wash.), 142, p. 38

to Redskin Support Comm., Aug. 31, 1992

28.7 Support letter Floyd E. Leonard, Chief of the Miami Tribe of

142, pp. 39-40

Oklahoma, to C. A. Buser, June 21, 1991

28.8 Support letter Merna L. Lewis, V.P., Pima-Maricopa Indian

142, p. 41

Community (Ariz.), to Jo Walter, July 14, 1992

28.9 Support letter Jonathan L. Taylor, Principal Chief, Eastern Band of

142, p. 42

Cherokee Indians, to Jo Walter, July 16, 1992

29.3 Support letter Ronald R. Julian, Council Member, Jicarilla Apache

142, p. 46

Tribe (Dulce, N.M.) to Rick Vaughn, Wash. Redskins,

Sept. 8, 1994

29.10 Support fax J. Lisanby, Sioux Indians of Fort Totten, N.D. to Charlie 142, p. 58

Drayton, Redskins Park, Jan. 17, 1992

SUPPORT LETTERS NOT INDICATING AUTHORS ARE NATIVE AMERICANS

29.4 Support letter Philip A. May to Wash. Redskins Dir. Pub. Relations,

142, p. 47

Jan. 27, 1992

29.5 Support letter Robert N. Huey to Jack Kent Cooke, Mar. 29, 1989, with 142, pp. 48-49

with article

AP, Indian Band Dislikes Nickname Campaign, Sioux

Falls Argus Leader (S.D.), Mar. 23, 1989, attached

29.6 Support letter Billie J. Hipsley to Wash. Redskins, Jan. 13, 1992, with 142, pp. 50-51

with article

Mark Holmberg, What’s All the Fuss About ‘Skins,

Richmond Times-Dispatch, [no shown date], at C5,

attached

29.7 Support letter Louise M. Saylor to Letter to the Editor, Wash. Post,

142, p. 52

Mar. 17, 1992

29.8 Support letter W. J. Bryant to Jack Kent Cooke, undated (date stamped 142, pp. 53-54

“JKC Inc. Feb. 29, 1988”)

29.9 Support letter Ricardo J. Martinez to Jack Kent Cooke, Mar. 21, 1992 142, pp. 55-57

33

Support letter Robert D. Kahn to John Kent Cooke, Nov. 4, 1991

143, p. 8

176

Cancellation No. 92046185

Appendix B – Respondent’s Submissions of its Harjo Notice of Reliance & Supplemental

Notice of Reliance (collectively “NR”), Deposition Testimony & Deposition Exhibits

NR Entry Type

Source

TTABVue

Ex.

Ref. No.

35

Support letter Priscilla J. Fritz to Wash. Post letters to the editor, Sept. 143, pp. 11-12

with photo

2, 1992, with photo “Redskin Motel” indicating taken in

Aug. 1992 on Cherokee Indian Reservation attached

36

Support letter Michael John Nisos to Jack Kent Cooke, undated (date 92, pp. 13-14

with photo

stamped “JKC Inc. Apr. 28, 1992”), with photo indicating

its shows “Redskin” Indian-named movie theater located

in Andarko, Okla

51

Support letter Susan Giller to Jack Kent Cooke, May 10, 1993

149, p. 71

N/A Support letter Cooke Dep. Ex. 19: Wilcomb E. Washburn to John Kent 156, pp. 94-102

Cooke, Jr., Dec. 24, 1991, with his typescript of

magazine article, attached

N/A Support letter Cooke Dep. Ex. 25 (part): Robert Camp Littleton, July 157, p. 14

11, 1993

USPTO APPLICATION SERIAL NO. 74311697

N/A Drawing page Cooke Dep. Ex. 21: Date-stamped and assigned

157, p. 6

application for the mark “REDSKIN REIVEW” & design

for use on magazines

USPTO REGISTRATIONS (LIVE & CANCELLED)

1

Registration Six registrations (indicating renewals) at issue; U.S.

128, pp. 76-83

Certificates Reg. No. 1,343,442 (SKINS for entertainment services in

the form of professional football games and exhibitions)

(cancelled under § 8)

USPTO REGISTRATION—INDIAN HEAD

56

Registration U.S. Registration 578,797 for “INDIAN HEAD” &

153, pp. 10-12

Certificate

design, used on corn meal, issued Aug. 18, 1953, 2d

renewal issued Aug. 18, 1993

177

 
 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

In re Registration No. 1,606,810 (REDSKINETTES)

Registered July 17, 1990,

Registration No. 1,085,092 (REDSKINS)

Registered February 7, 1978,.

Registration No. 987,127 (THE REDSKINS & DESIGN)

Registered June 25, 1974,

Registration No. 986,668 (WASHINGTON REDSKINS & DESIGN) :;

Registered June 18, 1974,

:?v,cc.n

Registration No. 978,824 (WASHINGTON REDSKINS)

3:-0

Registered February 12, 1974,

~~~.

and Registration No. 836,122 (THE REDSKINS-STYLIZED LETTER~S

Registered September 26, 1967

--nn I'~

Amanda Blackhorse, Marcus Briggs, Phillip Gover, Shquanebin Lone-Bentley, Jillian Pappan, and Courtney Tsotigh

Petitioners,

v.

Pro-Football, Inc.

Registrant.

08/15/2006 KGIBBONS 00000004 1606810

01 FC:6401

1600.00 OP

)

)

)

)

)

)

)

)

Cancellation No. _ _ _ _ _ __

)

)

)

)

)

)

)

PETITION FOR CANCELLATION

Petitioners, AMANDA BLACKHORSE, a member of Not in Our Honor, a student

advocacy group aimed at protesting disparaging mascots, an advocate for Indigenous women at

Women's Transitional Care Services, an emolled member of the Navajo Nation, a federally

recognized Native American tribe, and a Kansas resident; MARCUS BRIGGS, a counselor for

the Indian Youth of America, the President of Sigma Nu Alpha Gamma, the Society of Native

American Gentlemen at the University of Oklahoma, member of Gekakwitha Conference,

member of the American Indian Honor Society, member of the Cultural Affairs committee of the

OC\5 7J 145\5

American Indian Student Association at the University of Oklahoma, President of Campus Ministry at the University of Oklahoma, recipient of the 2005 Big 12 American Indian Leadership Award, recipient ofthe 2002 American Indian Leadership Award for the State of Florida, a member of the Muscogee Nation of Florida tribe (a son of the Wind Clan), and a Florida resident; PHILLIP GOVER, former head of the Native American Student Union at the University of Virginia, an enrolled member of the Paiute Indian Tribe of Utah, a federally recognized Native American tribe, and a Virginia resident; SHQUANEBlN LONE-BENTLEY, a member of the National Congress of American Indians, a member of United South and Eastern Tribes, a member of the American Indian Society, an enrolled member of the Tonawanda Band of the Seneca Nation, a federally recognized Native American tribe, and a Virginia resident; JILLIAN PAPPAN, a member of the Native American Journalists Association, a member of the Omaha Tribe ofMacy, Nebraska, a federally recognized Native American tribe, and an Iowa resident; and COURTNEY TSOTIGH, an Oklahoma City University student, a board member of the General Commission on Religion and Race, a registered member of the Kiowa Tribe of Oklahoma, a federally recognized Native American tribe, and an Oklahoma resident (collectively hereinafter, "Petitioners"), in their capacity as Native American persons and enrolled members of Native American tribes, believe that they have been, are, and/or will be damaged by U.S. Registration Nos. 1,606,810; 1,085,092; 987,127; 986,668; 978,824 and 836,122 (collectively, the "Registrations"), registered in the name of Pro-Football, Inc. (hereinafter "Registrant"), a Maryland corporation, having a place of business at 2\300 Redskin Park Drive, Ashburn, Virginia 220 11, and hereby petition to cancel said registrations.
In 1999, the Trademark Trial and Appeal Board (the "Board") ruled on a similar Petition to Cancel the Registrations brought by a different group of Native American petitioners. In Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d 1705 (T.T.A.B. 1999), the Board cancelled the
DC\573145\5

'; c
registrations after it examined the record, including extensive evidence concerning the history of use and perception of the word "Redskin," and concluded that the term "Redskin" was disparaging.
Pro-Football appealed the decision to the United States District Court for the District of Columbia. The District Court reversed the Board's ruling, holding that the Board should have deemed the Harjo petitioners' claim barred by laches, and that, alternatively, the Board's disparagement finding was unsupported by substantial evidence. Pro-Football, Inc. v. Harjo, 284 F. Supp.2d 96 (D.D.C. 2003).
The Native Americans, in tum, appealed the District Court's decision to the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit Court of Appeals"). The D.C. Circuit Court of Appeals remanded the case back to the District Court on the ground that one of the original petitioners, Mateo Romero, was only one year old when the first of the six Registrations issued. Because the clock on laches only begins to run when individual reaches the age of majority, the D.C. Circuit Court of Appeals explained that Mateo Romero's claim may not be barred by laches. Pro-Football, Inc. v. Harjo, 75 U.S.P.Q.2d 1525 (D.C. Cir. 2005). The case has been remanded by the D. C. Circuit Court of Appeals and is now pending in District Court.
Each of the Petitioners bringing this Petition to Cancel have only just recently reached the age of majority, the age from which the D.C. Circuit Court of Appeals has determined that laches begins to run. Because Petitioners in this action are bringing a claim that is very similar to the one that was before the Board in the Harjo case, they plan to rely on a significant portion of the evidence present in the Harjo record for proving their case, pursuant to 37 CFR § 2.122(1).
The grounds for cancellation are as follows:
DC157314515

1. The term "REDSKIN" or an abbreviation of that term appears in each of the above-

identified registered marks. The term "REDSKIN" was and is a pejorative, derogatory,

denigrating, offensive, scandalous, contemptuous, disreputable, disparaging, and racist designation for a Native American person. The marks identified in U.S. Registration Nos.

986,668 and 987,127 also include additional matter that in the context used by Registrant, is

offensive, disparaging, and scandalous. The Registrant's use of each mark identified in the six

above registrations offends Petitioners, and other Native Americans, causing them to be damaged

by the continued registration of the marks. 2. Registrant's six above-identified federally registered marks consist of or comprise matter

that disparages Native American persons, and brings them into contempt, ridicule, and disrepute, in violation of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a).

WHEREFORE, Petitioners believe that they have been, are, and/or will be damaged by said registrations and pray that each of them be cancelled.

A check in the sum of the $1800.00 covering the government filing fee for this Petition is

enclosed. If for any reason there is no check attached hereto or the amount is insufficient, please

charge any fee or insufficiency to this firm's account No. DA 500573.

Respectfully submitted,

Date: August 11, 2006

BY&?~ Philip J. Mause Amy E. Carroll Drinker Biddle & Reath LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 Phone: (202) 842-8889; Fax: (202) 842-8465

Attorneys for Petitioners

De\57) 145\5

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

In re Registration No. 1,606,810 (REDSKINETTES) Registered July 17, 1990,
Registration No. 1,085,092 (REDSKINS) Registered February 7, 1978,
Registration No. 987,127 (THE REDSKINS & DESIGN) Registered June 25,1974,
Registration No. 986,668 (WASHINGTON REDSKINS & DESIGN) Registered June 18, 1974,
Registration No. 978,824 (WASHINGTON REDSKINS) Registered February 12, 1974,
and Registration No. 836,122 (THE REDSKINS-STYLIZED LETTERS) Registered September 26, 1967

Amanda Blackhorse,

)

Marcus Briggs,

)

Phillip Gover,

)

Shquanebin Lone-Bentley,

)

Jillian Pappan, and

)

Courtney Tsotigh

)

)

Petitioners,

)

)

v.

)

)

Pro-Football, Inc.

)

)

Registrant.

)

)

Cancellation No. _ _ _ _ __

PETITION FOR CANCELLATION

Petitioners, AMANDA BLACKHORSE, a member of Not in Our Honor, a student

advocacy group aimed at protesting disparaging mascots, an advocate for Indigenous women at

Women's Transitional Care Services, an enrolled member of the Navajo Nation, a federally

recognized Native American tribe, and a Kansas resident; MARCUS BRIGGS, a counselor for

the Indian Youth of America, the President of Sigma Nu Alpha Gamma, the Society of Native

American Gentlemen at the University of Oklahoma, member of Gekakwitha Conference,

member of the American Indian Honor Society, member of the Cultural Affairs committee of the

DCI573 14515

..

.,

American Indian Student Association at the University of Oklahoma, President of Campus Ministry at the University of Oklahoma, recipient of the 2005 Big 12 American Indian Leadership Award, recipient ofthe 2002 American Indian Leadership Award for the State of Florida, a member of the Muscogee Nation of Florida tribe (a son of the Wind Clan), and a Florida resident; PHILLIP GOVER, former head of the Native American Student Union at the University of Virginia, an emolled member of the Paiute Indian Tribe of Utah, a federally recognized Native American tribe, and a Virginia resident; SHQUANEBIN LONE-BENTLEY, a member of the National Congress of American Indians, a member of United South and Eastern Tribes, a member of the American Indian Society, an emolled member of the Tonawanda Band of the Seneca Nation, a federally recognized Native American tribe, and a Virginia resident; JILLIAN PAPPAN, a member of the Native American Journalists Association, a member of the Omaha Tribe of Macy, Nebraska, a federally recognized Native American tribe, and an Iowa resident; and COURTNEY TSOTIGH, an Oklahoma City University student, a board member of the General Commission on Religion and Race, a registered member ofthe Kiowa Tribe of Oklahoma, a federally recognized Native American tribe, and an Oklahoma resident (collectively hereinafter, "Petitioners"), in their capacity as Native American persons and emolled members of Native American tribes, believe that they have been, are, and/or will be damaged by U.S. Registration Nos. 1,606,810; 1,085,092; 987,127; 986,668; 978,824 and 836,122 (collectively, the "Registrations"), registered in the name of Pro-Football, Inc. (hereinafter "Registrant"), a Maryland corporation, having a place of business at 21300 Redskin Park Drive, Ashburn, Virginia 22011, and hereby petition to cancel said registrations.
In 1999, the Trademark Trial and Appeal Board (the "Board") ruled on a similar Petition to Cancel the Registrations brought by a different group of Native American petitioners. In Harjo v. Pro-Football, Inc., SO U.S.P.Q.2d 1705 (T.TAB. 1999), the Board cancelled the
DC\57314515

registrations after it examined the record, including extensive evidence concerning the history of use and perception of the word "Redskin," and concluded that the term "Redskin" was disparaging.
Pro-Football appealed the decision to the United States District Court for the District of Columbia. The District Court reversed the Board's ruling, holding that the Board should have deemed the Harjo petitioners' claim barred by laches, and that, alternatively, the Board's disparagement finding was unsupported by substantial evidence. Pro-Football, Inc. v. Harjo, 284 F. Supp.2d 96 (D.D.C.2003).
The Native Americans, in tum, appealed the District Court's decision to the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit Court of Appeals"). The D.C. Circuit Court of Appeals remanded the case back to the District Court on the ground that one ofthe original petitioners, Mateo Romero, was only one year old when the first of the six Registrations issued. Because the clock on laches only begins to run when individual reaches the age of majority, the D.C. Circuit Court of Appeals explained that Mateo Romero's claim may not be barred by laches. Pro-Football, Inc. v. Harjo, 75 U.s.P.Q.2d 1525 (D.C. Cir. 2005). The case has been remanded by the D. C. Circuit Court of Appeals and is now pending in District Court.
Each of the Petitioners bringing this Petition to Cancel have only just recently reached the age of majority, the age from which the D.C. Circuit Court of Appeals has determined that laches begins to run. Because Petitioners in this action are bringing a claim that is very similar to the one that was before the Board in the Harjo case, they plan to rely on a significant portion ofthe evidence present in the Harjo record for proving their case, pursuant to 37 CFR § 2. 122(f).
The grounds for cancellation are as follows:
DC157JI4515

.'

1. The tenn "REDSKIN" or an abbreviation of that tenn appears in each of the above-

identified registered marks. The tenn "REDSKIN" was and is a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging, and racist

designation for a Native American person. The marks identified in U.S. Registration Nos.

986,668 and 987,127 also include additional matter that in the context used by Registrant, is offensive, disparaging, and scandalous. The Registrant's use of each mark identified in the six

above registrations offends Petitioners, and other Native Americans, causing them to be damaged by the continued registration of the marks.

2. Registrant's six above-identified federally registered marks consist of or comprise matter

that disparages Native American persons, and brings them into contempt, ridicule, and disrepute, in violation of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a).

WHEREFORE, Petitioners believe that they have been, are, and/or will be damaged by said registrations and pray that each of them be cancelled.
A check in the sum of the $1800.00 covering the government filing fee for this Petition is enclosed. If for any reason there is no check attached hereto or the amount is insufficient, please charge any fee or insufficiency to this finn's account No. DA 500573.

Respectfully submitted,

Date: August 11,2006

BY~?~ Philip J. Mause Amy E. Carroll Drinker Biddle & Reath LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 Phone: (202) 842-8889; Fax: (202) 842-8465
Attorneys for Petitioners

DC157314515

DrinkerBiddle~ath

.

L L P

Suite 1100 1500 K Street, N.W.
Washington, DC 20005-1209
202-842-8800 Phone 202-842-8465/66 Fax

The official date stamp of the United States Patent and Trademark Office hereon is acknowledgment of the filing of:

I. Application
OA. Basis
o I. Use o 2. Intent to Use o 3. Section 44 O(d) O(e)
DB. Specimen Dc. Copy of Foreign Registration Do. Drawing DE. Self-addressed, stamped postcard
II. Prosecution Documents
OA. Request for Correction of:
o I. Registration o 2. Filing Receipt
DB. Response to Office Action Dc. Copy ofForeign Registration DO. Request for Extension of Time to File
Statement of Use DE. Statement of Use OF. Amendment to Allege Use OG. Specimens OH.

IV. Recordation
OA. Assignment Agreement (Number of Marks Covered: - )
- > DB. Security Interest Agreement (Number of Marks Covered: Dc. Change of Name, Merger or Other
- > Transfer Document (Number of
Marks Covered: Do. Power of Attorney and Appointment of
Domestic Representative DE. PTa Recordation Form Cover Sheet
V. Inter Partes Proceedings
OA. Request for _ _ Day Extension of Time to File Opposition (orig. + 2)
DB. Notice of Opposition (orig. +I) Dc. Answer [gJ D. Petition to Cancel (Olig. +1) DE. Certified Copies of U.S. Registration
No(s). _ _ OF. Certificate of Service OG. Motion OH.

III. Post Registration
o A. Section 8 Declaration
DB. Sections 8 & 15 Declaration Dc. Section 8/Section 9 Renewal Do. Specimens

VI. Payment
o[gJ Check NoC(e7(d for $1.800.00 Deposit Account No. _ _ for $_ _
VII. Other

Client No.: FileNo.: Matter No.:
Mark: Client Name: SeT. No. Reg. No. Opp/Canc. No. Attorney: Secretary:

OA. Cover Letter DB.
_9~9::!9~7~3_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
~19~1'..:1~58~===c~-=--...,.,.,."..,.,,..-:=~-=-c=-::"~c-=-,...,.--:_ _ __ REDSKINETTES, REDSKlNS, THE REDSKINS & Design,
WASHINGTON REDSKINS & Design, WASHINGTON REDSKINS, THE REDSKINS (Stylized Letters) Amanda Blackhorse, et al.
1,606,810; 1,085,092; 987,127; 986,668; 978,824; 836,122
Amy E. Carroll Judy L. Oyhenart

August 10, 2006

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

In re Registration No. 1,606,810 (REDSKINETTES) Registered July 17, 1990,
Registration No. 1,085,092 (REDSKINS) Registered February 7, 1978,
Registration No. 987,127 (THE REDSKINS & DESIGN)
Registered June 25, 1974, Registration No. 986,668 (WASHINGTON REDSKINS & DESIGN)
Registered June 18, 1974, Registration No. 978,824 (WASHINGTON REDSKINS)
Registered February 12, 1974, and Registration No. 836,122 (THE REDSKINS-STYLIZED LETTERS)
Registered September 26, 1967

Amanda B1ackhorse,

)

Marcus Briggs,

)

Phillip Gover,

)

Shquanebin Lone-Bentley,

)

Jillian Pappan, and

)

Courtney Tsotigh

)

)

Petitioners,

)

)

v.

)

)

Pro-Football, Inc.

)

)

Registrant.

)

)

Cancellation No. _ _ _ _ __

PETITION FOR CANCELLATION

Petitioners, AMANDA BLACKHORSE, a member of Not in Our Honor, a student

advocacy group aimed at protesting disparaging mascots, an advocate for Indigenous women at

Women's Transitional Care Services, an enrolled member of the Navajo Nation, a federally

recognized Native American tribe, and a Kansas resident; MARCUS BRIGGS, a counselor for

the Indian Youth of America, the President of Sigma Nu Alpha Gamma, the Society of Native

American Gentlemen at the University of Oklahoma, member of Gekakwitha Conference,

member of the American Indian Honor Society, member of the Cultural Affairs committee of the

DCI573 14515

.'
American Indian Student Association at the University of Oklahoma, President of Campus Ministry at the University of Oklahoma, recipient of the 2005 Big 12 American Indian Leadership Award, recipient of the 2002 American Indian Leadership Award for the State of Florida, a member of the Muscogee Nation of Florida tribe (a son of the Wind Clan), and a Florida resident; PHILLIP GOVER, fonner head of the Native American Student Union at the University of Virginia, an enrolled member of the Paiute Indian Tribe of Utah, a federally recognized Native American tribe, and a Virginia resident; SHQUANEBIN LONE,BENTLEY, a member of the National Congress of American Indians, a member of United South and Eastern Tribes, a member of the American Indian Society, an enrolled member of the Tonawanda Band of the Seneca Nation, a federally recognized Native American tribe, and a Virginia resident; JILLIAN PAPPAN, a member of the Native American Journalists Association, a member of the Omaha Tribe of Macy, Nebraska, a federally recognized Native American tribe, and an Iowa resident; and COURTNEY TSOTIGH, an Oklahoma City University student, a board member of the General Commission on Religion and Race, a registered member of the Kiowa Tribe of Oklahoma, a federally recognized Native American tribe, and an Oklahoma resident (collectively hereinafter, "Petitioners"), in their capacity as Native American persons and enrolled members of Native American tribes, believe that they have been, are, and/or will be damaged by U.S. Registration Nos. 1,606,810; 1,085,092; 987,127; 986,668; 978,824 and 836,122 (collectively, the "Registrations"), registered in the name of Pro-Football, Inc. (hereinafter "Registrant"), a Maryland corporation, having a place of business at 21300 Redskin Park Drive, Ashburn, Virginia 22011, and hereby petition to cancel said registrations.
In 1999, the Trademark Trial and Appeal Board (the "Board") ruled on a similar Petition to Cancel the Registrations brought by a different group of Native American petitioners. In Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d 1705 (T.T.A.B. 1999), the Board cancelled the
DC157314515

registrations after it examined the record, including extensive evidence concerning the history of use and perception of the word "Redskin," and concluded that the term "Redskin" was disparaging.
Pro-Football appealed the decision to the United States District Court for the District of Columbia. The District Court reversed the Board's ruling, holding that the Board should have deemed the Harjo petitioners' claim barred by laches, and that, alternatively, the Board's disparagement finding was unsupported by substantial evidence. Pro-Football, Inc. v. Harjo, 284 F. Supp.2d 96 (D.D.C. 2003).
The Native Americans, in tum, appealed the District Court's decision to the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit Court of Appeals"). The D.C. Circuit Court of Appeals remanded the case back to the District Court on the ground that one ofthe original petitioners, Mateo Romero, was only one year old when the first ofthe six Registrations issued. Because the clock on laches only begins to run when individual reaches the age of majority, the D.C. Circuit Court of Appeals explained that Mateo Romero's claim may not be barred by laches. Pro-Football, Inc. v. Harjo, 75 u.S.P.Q.2d 1525 (D.C. Cir. 2005). The case has been remanded by the D. C. Circuit Court of Appeals and is now pending in District Court.
Each of the Petitioners bringing this Petition to Cancel have only just recently reached the age of majority, the age from which the D.C. Circuit Court of Appeals has determined that laches begins to run. Because Petitioners in this action are bringing a claim that is very similar to the one that was before the Board in the Harjo case, they plan to rely on a significant portion of the evidence present in the Harjo record for proving their case, pursuant to 37 CFR § 2. 122(f).
The grounds for cancellation are as follows:
DC1573 14515

t

1. The term "REDSKIN" or an abbreviation of that term appears in each of the above-

identified registered marks. The term "REDSKIN" was and is a pejorative, derogatory,

denigrating, offensive, scandalous, contemptuous, disreputable, disparaging, and racist

designation for a Native American person. The marks identified in U.S. Registration Nos.

986,668 and 987,127 also include additional matter that in the context used by Registrant, is

offensive, disparaging, and scandalous. The Registrant's use of each mark identified in the six

above registrations offends Petitioners, and other Native Americans, causing them to be damaged

by the continued registration of the marks.

2. Registrant's six above-identified federally registered marks consist of or comprise matter

that disparages Native American persons, and brings them into contempt, ridicule, and disrepute,

in violation of Section 2(a) of the Lanham Act, 15 U.S.c. § 1052(a).

WHEREFORE, Petitioners believe that they have been, are, and/or will be damaged by said

registrations and pray that each of them be cancelled.

A check in the sum of the $1800.00 covering the government filing fee for this Petition is enclosed. If for any reason there is no check attached hereto or the amount is insufficient, please charge any fee or insufficiency to this firm's account No. DA 500573.

Respectfully submitted,

Date: August 11, 2006

By&t~
Philip J. Mause Amy E. Carroll Drinker Biddle & Reath LLP 1500 K Street, N.W., Suite 1100 Washington, D.C. 20005-1209 Phone: (202) 842-8889; Fax: (202) 842-8465

Attorneys for Petitioners

DC1573145\5