As many readers have noticed, this blog has taken several opportunities to provide commentary on the continuing sage of the registered trademarks of the Washington Redskins professional football organization. Just last month, this blog noted a similar alleged-disparagement case ("THE SLANTS") winding its way through the appeals process with a pending writ of certiorari filed with SCOTUS. Today, the Washington Post published a new poll it conducted revealing that a significant majority of self-identifying Native Americans do not find the use of "Washington Redskins" or "Redskins" disparaging to the group. Although this is an internally-commissioned poll by WaPo, the significance of the results could signal the final tolls of the bell for this decades-long trademark challenge. Recall, in 1992, Susan Harjo filed a petition with the USPTO to cancel six registered trademarks owned by the Washington Redskins football organization. After multiple appeals within and without the administrative agency, the original challenge was nixed based on the legal theory that laches (waiting too long) prohibited the challengers from continuing with the cancellation proceeding in 2005, and mercifully buried by SCOTUS denying to hear the appeal in 2009. Yet, as the Harjo petition was pending before SCOTUS, a new round of challenges to the same six registrations (on behalf of Amanda Blackhorse and five other individuals). The Blackhorse challenge will reach its first-decade if it lasts until August 2016.
What threatens the viability of the Blackhorse challenge is the newly published WaPo poll, which reveals that of the 504 respondents self-identifying as Native Americans, 90% are not bothered by the use of "Redskins" by the Washington football organization, 1% offered no opinion, while the remaining 9% find the usage "offensive". Recall the standard for appropriately holding that a term is "disparaging" is that it is deemed disparaging of a "substantial composite" of the identified group. While there are no bright-line formulas for determining what is or is not a "substantial composite", a total of 9% finding the term(s) and/or uses "offensive" hardly seems to rise to the level of "substantial composite".
Something that gets a bit lost in the noise of these challenges is that this is the same problem that Harjo had. Neither Harjo (nor apparently Blackhorse) can marshal the evidence that demonstrates a "substantial composite" of the group find the term offensive. As noted in an ESPN article, it seems the average person finds the terms more offensive than members of the targeted-group - which is probably a bigger comment on the psychological/sociological issues within our progressively PC society. Yet, even that evidence has historically favored the Washington organization, as the vast majority of people associate "Washington Redskins" and "Redskins" as identifying the NFL team, with hardly any data indicating such uses are of actual people/persons.
Between the publication of the WaPo poll, the trend in "THE SLANTS" case, as well as general first amendment and trademark examination principles, it appears the "Redskins" matter may reach a finality in favor of the club and its registrations. Although I never underestimate the federal judiciary to surprise (esp. the intellectual property challenged members of SCOTUS).