The National Football League has coach’s challenges. When a call doesn’t go his way, a coach can toss out a red beanbag and ask the referee to go under the hood and review a call that was made on the field, hoping for a reversal. In the legal world, of course, we have a similar procedure. We call them appeals rather than challenges, but the goal is the same – one party wants a judgment reversed. In regards to the recent cancellation of the Redskins trademark by the United States Patent and Trademark Office (USPTO), team owner Daniel Snyder certainly would like to toss the red beanbag.
Of course, when a coach knows that a call went his way in a previous game, he can be more confident that he’ll get a satisfying judgment on a subsequent play. This should bring some assurance to Redskins owner Daniel Snyder, because this whole case almost seems like a highlight reel from a previous season.
Now, though, the individuals who brought the case to the TTAB are far younger, so the laches argument is less likely to hold weight. That puts the spotlight on other matters that came up in the original case: whether there was enough evidence for the petitioners to win on merits.
The district court decided that whether or not the trademark was disparaging was not decided by a substantial argument. In order to cancel the trademark, it must be found to be disparaging to a substantial composite of the relevant group at the time it was issued. The petitioners used evidence from the National Congress of American Indians, which represents about 30 percent of American Indians. The group has been advocating against the use of the term Redskins since the 1960s, so that evidence is used to show that a substantial portion were disparaged by the term in the time period when the mark was granted.