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Pro-Football, Inc. v. Harjo

September 30, 2003

PRO-FOOTBALL, INC., PLAINTIFF,
v.
SUZAN SHOWN HARJO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court are cross motions for summary judgment in this long-running trademark cancellation case. At issue in this appeal is the decision of the Trial Trademark and Appeal Board ("TTAB" or the "Board") to cancel six federal trademark registrations involving the professional football team, the Washington Redskins, because it found that the marks "may disparage" Native Americans or "bring them into contempt, or disrepute." Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d 1705, 1749 (T.T.A.B. 1999) (" Harjo II "). While the national debate over the use of Native American terminology and imagery as depictions for sports teams continues to raise serious questions and arouse the passions of committed individuals on both sides of the issue, the Court's decision on the motions before it does not venture into this thicket of public policy. Rather, at the summary judgment stage, the Court only assesses the legal sufficiency of the TTAB's decision and whether a laches defense is appropriate on the basis of the undisputed material facts. The Court's conclusions in this case, as to the sufficiency of the evidence before the TTAB and the applicability of the laches defense, should not be interpreted as reflecting, one way or the other, this Court's views as to whether the use of the term "Washington Redskins" may be disparaging to Native Americans. The conclusions in this Memorandum Opinion are in the context of an agency review proceeding and not a decision in the first instance.

The Court has reviewed the parties' extensive briefings, including both parties' motions for summary judgment, both parties' oppositions, and both parties' reply briefs. The Court has also reviewed, where appropriate, the parties' Local Civil Rule 7.1(h) statements of undisputed material facts and the oppositions to those statements. After reviewing all of these pleadings, the entire record submitted herein, the relevant case law and statutory framework, and the transcript of the July 23, 2003, motions hearing, the Court concludes that the TTAB's decision must be reversed.

II. FACTUAL BACKGROUND

A. Procedural History

Pro-Football, Inc. ("Pro-Football"), Plaintiff in the current action and Respondent in the trademark action below, holds six trademarks containing the word, or a derivative of the word, "redskin(s)" that are registered with the Patent and Trademark Office ("PTO"). In September 1992, Suzan Shown Harjo and six other Native Americans (collectively, "Defendants" or "Petitioners") petitioned the TTAB to cancel the six trademarks, arguing that the use of the word "redskin(s)" is "scandalous," "may... disparage" Native Americans, and may cast Native Americans into "contempt, or disrepute" in violation of section 2(a) of the Lanham Trademark Act of 1946 ("Lanham Act" or "Act"). Compl. ¶ 13 (citing 15 U.S.C. § 1052(a)). Pro-Football raised several affirmative defenses in the TTAB action. These included arguments that section 2(a) of the Lanham Act unconstitutionally impinges on First Amendment speech rights, that it also contravenes Fifth Amendment due process rights, and that the Petitioners' challenge to the trademarks was barred by the equitable defense of laches. See id. ¶¶ 15, 17.

In a pretrial order issued in March of 1994, the TTAB struck each of those defenses. Harjo v. Pro-Football, Inc., 30 U.S.P.Q.2d 1828, 1833 (T.T.A.B. 1994) (" Harjo I "). The TTAB dismissed Pro-Football's constitutional defenses because assessing the constitutionality of a statute is "beyond the Board's authority." Harjo I, 30 U.S.P.Q.2d at 1833. It held that the laches defense was unavailable as well, after determining that Petitioners advocated on behalf of a broad, public interest, while Pro-Football's interests were distinctly private. Id. at 1831.

On April 2, 1999, five years after issuing its pretrial order, the TTAB issued a cancellation order in which it scheduled the cancellation of the contested trademarks. Harjo II, 50 U.S.P.Q.2d at 1748. The TTAB based its decision on the conclusion that the trademarks "may be disparaging of Native Americans to a substantial composite of this group of people," and "may bring Native Americans into contempt or disrepute." Id.

On June 1, 1999, Pro-Football filed its Complaint with this Court, seeking " de novo review, pursuant to 15 U.S.C. § 1071(b), of [the TTAB's] unprecedented administrative decision." Compl. ¶ 1. Without expressly bestowing a right to de novo review, section 1071(b)(1) states that a party "dissatisfied with the decision of the [TTAB]... may... have remedy by a civil action." In that action, "[t]he court may adjudge... that a registration involved should be canceled,... as the facts in the case may appear." 15 U.S.C. § 1071(b)(1). Section 1071(b)(4) states that the United States District Court for the District of Columbia has jurisdiction where, as here, the defendants "resid[e] in a plurality of districts not embraced within the same State...." 15 U.S.C. § 1071(b)(4).

In its complaint, Pro-Football presents five causes of action supporting its request that the Court overturn the TTAB's cancellation order. It argues first that the trademarks do not disparage Native Americans and second that they do not bring Native Americans into contempt or disrepute. Compl. ¶¶ 108-111. In the third cause of action, Pro-Football contends that section 2(a) of the Lanham Act violates the First Amendment because it is a vague, overbroad, and content-based restriction on speech. Id. ¶¶ 112-116. Fourth, it asserts that section 2(a) is unduly vague in violation of the Fifth Amendment. Id. ¶¶ 117-118. Finally, it argues that the Defendants' cancellation petition was barred by the doctrine of laches. Id. ¶¶ 119-120.

Defendants filed an answer to the complaint on August 30, 1999, and, subsequently, a motion seeking dismissal of Pro-Football's constitutional and laches claims or, alternatively, judgment on the pleadings with regard to those claims. After receiving thorough briefing on the motion, the Court held a motions hearing on the record on June 29, 2000, and requested limited additional briefing. The parties submitted additional briefings pursuant to that request.

On December 11, 2000, the Court denied without prejudice Defendants' motion to dismiss Pro-Football's constitutional claims as premature. Pro-Football v. Harjo, 57 U.S.P.Q.2d 1140, 1142-43 (D.D.C. 2000) (" Harjo III ") (finding that the doctrine of constitutional avoidance–the fundamental rule of judicial restraint–required the Court to first rule on Pro-Football's three non-constitutional claims). The Court wrote that "[t]he avoidance doctrine forecloses the Court's assessment of Pro- Football's constitutional claims on the Native Americans' motion because non-constitutional claims seeking the same relief remain unresolved." Id. at 1143; see also id. at 1144 ("Because the constitutionality of the challenged portion of the Lanham Act is a novel and unsettled issue, the Court shall tackle it only if Pro-Football does not prevail on its non-constitutional claims.").

The Court also denied without prejudice Defendants' motion on Pro-Football's laches claim. Id. at 1145-46. The Court first observed that "the Lanham Act does not unequivocally bar laches claims and defenses raised in regard to petitions brought under section 2(a)." Id. at 1145. Noting that the applicability of the doctrine of laches was "dependent upon the equities of the factual scenarios within which it is raised," id. at 1145, the Court refused to dismiss Pro-Football's laches argument until the factual record could be further developed. Id. at 1145-46.

After this ruling, the parties engaged in a protracted period of discovery on the issue of laches that spawned a series of disputes, which were sent to Magistrate Judge John M. Facciola for resolution. Magistrate Judge Facciola resolved the pending discovery issues on February 28, 2002. Pursuant to a consent request of Pro-Football, the Court extended the close of discovery until June 7, 2002, and requested that the parties jointly file their dispositive motions on July 12, 2002. However, on June 7, 2002, Defendants moved to preclude testimony or compel discovery relating to the testimony of Daniel M. Snyder, team owner of the Washington Redskins. The Court referred this motion to Magistrate Judge Facciola on June 18, 2002. While this motion relating to Mr. Snyder's testimony was still pending, on July 12, 2002, the parties filed cross motions for summary judgment. These motions became ripe on August 28, 2002. However, given that the issue of Mr. Snyder's deposition was still pending before Magistrate Judge Facciola, the Court deferred ruling on these motions until the issue over Mr. Snyder's deposition could be resolved.

Since the Snyder deposition was not conducted until May 16, 2003, the Court postponed a motions hearing that had been originally scheduled in this case for April 25, 2003, until July 23, 2003. On July 23, 2003, the Court convened the parties for a motions hearing on the pending cross motions for summary judgment.

Immediately prior to the motions hearing, the parties submitted the Snyder Deposition transcript without any explanation or additional argument. The Court, at the July 23, 2003, motions hearing, requested that the parties submit page citations to the deposition that the parties found probative in relation to their cases. Both parties complied with this request. However, as the old saw goes, in giving an inch, the parties took a mile. Both sides filed supplemental evidence, unrequested by the Court, that the Court finds unhelpful in resolving the legal challenge. The Court accordingly strikes Pro-Football's July 25, 2003, Praecipe, Pro-Football's August 6, 2003, Supplemental Praecipe, and Defendants' Supplemental Expert Reports of Geoffrey Nunberg and Timothy J. Nantell. This material was not requested by the Court and is not helpful in resolving the current motions.*fn1

B. The Present Motions

These proceedings are presently before the Court on cross motions for summary judgment. Pro-Football seeks summary judgment on its first (Pro-Football's trademarks do not and will not disparage Native Americans), second (Pro-Football's trademarks do not and will not bring Native Americans into contempt or disrepute), and fifth (laches) causes of action. Essentially, Pro-Football makes two main arguments: (1) assuming Defendants' petition for cancellation was timely, the dispositive evidence before the TTAB was irrelevant and therefore does not support a finding that the term "redskin(s)" may be disparaging or cause Native Americans to be brought into contempt or disrepute; and (2) Pro-Football has met the laches standard articulated by the Court and therefore the Court should order the TTAB to dismiss Defendants' petition for cancellation of the Redskins Marks under section 2(a) of the Lanham Act. Defendants have also moved for summary judgment. They argue that (1) the Court should affirm the TTAB's decision and (2) Pro-Football's laches claim should be rejected. Defendants also renew their motion to dismiss Pro-Football's constitutional claims, if the Court reaches that issue.

In the context of the first issue, whether summary judgment should be granted for either party on Pro-Football's first and second counts, the Court notes that the Lanham Act's provisions for district court review of a decision of the TTAB are fairly unique and unlike most other administrative reviews. Essentially, the Court reviews the findings of fact of the TTAB under the substantial evidence test, which has been derived from the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. Additionally, the parties are permitted to offer new evidence, and the Court may make new findings of fact based on this newly submitted evidence.*fn2 However, for purposes of this proceeding, the parties chose not to present any new evidence on Pro-Football's first two counts. See Tr. of 7/23/2003 Motions Hearing ("Tr. 7/23/2003") at 3, 8 (not disputed).

As will be examined in some detail below, the TTAB only made specific findings of fact in two areas–linguistic evidence and survey evidence. These findings are very limited, because in most instances, the TTAB merely drew from the undisputed portions of the record to make these findings of fact.*fn3 Indeed, the TTAB heard no live testimony and the testimony cited in its opinion merely came from deposition transcripts. For the rest of the voluminous record, the TTAB decided not to make findings of fact, and instead simply cataloged the evidence put forth by both parties. The Court, therefore, in discussing the TTAB's opinion in factual background section of this Memorandum Opinion only concentrates on the areas where the TTAB actually made findings of fact.*fn4

C. Factual Background

The Court now turns to the undisputed material facts of this case. First, the Court sets forth those facts essential to understanding this case by reviewing the trademarks that are at issue. Second, the Court discusses the factual findings made by the TTAB. Finally, the Court sets out the undisputed material facts relating to the new evidence in the record that pertains to Pro-Football's laches defense.

1. Local Rule 56.1

At the outset, the Court observes that the District Court for the District of Columbia has supplemented Federal Rule of Civil Procedure 56 with LCvR 56.1, which requires that each party submitting a motion for summary judgment attach a statement of material facts to which that party contends there is no genuine issue, with specific citations to those portions of the record upon which the party relies in fashioning the statement.*fn5 The party opposing such a motion must, in turn, submit a statement of genuine issues enumerating all material facts which the party contends are at issue and thus require litigation. See LCvR 56.1. Where the opposing party fails to discharge this obligation, a court may take all facts alleged by the movant as admitted. LCvR 56.1. As the District of Columbia Circuit has emphasized, "[LCvR 56.1] places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 406 (6th Cir. 1992)). Because of the significance of this task and the potential hardship placed on the court if parties are derelict in their duty, courts require strict compliance with LCvR 56.1. See id. at 150 (citations omitted).

This Court strictly adheres to the text of Local Civil Rule 56.1 when resolving motions for summary judgment. See Pro-Football, Inc. v. Harjo, Civ. No. 99-1385 (D.D.C. February 13, 2001) (scheduling and procedures order) ¶ 6 (discussing that the parties are required to comply with Local Civil Rule 7.1(h), which is identical to Local Civil Rule 56.1); see also Burke v. Gould, 286 F.3d 513, 519 (D.C. Cir. 2002) (district courts need to invoke Local Civil Rule 56.1 before applying it to the case). Although discretionary in the text of the Local Civil Rule 56.1, in resolving the present summary judgment motion, this Court "assumes that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 56.1.

Where possible, the Court cites to the parties' statements of facts filed in accordance with Local Civil Rule 7.1(h). The Court has reviewed the record citations by the parties to ensure that the representations made in the parties' statement are accurate. Moreover, the Court only uses the facts in a manner consistent with the approach taken by the parties in their briefing and arguments made to the Court. See, e.g., Morgan v. Federal Home Loan Mortgage Corp., 328 F.3d 647, 655 n.10 (D.C. Cir. 2003).

Since much of the relevant background of this case has been already set forth in this Court's prior published opinion in this case, and in the published opinion in the proceedings below, this Court has endeavored to avoid repetition and focus only on those facts necessary for resolving the present motions for summary judgment. Having set forth these preliminaries, the Court moves to a discussion of the material facts not genuinely in dispute.

2. The Washington Redskins and this Litigation

a. The Origins of the Trademarks at Issue

Plaintiff Pro-Football, Inc. is a Maryland corporation with its principal place of business in Virginia. Pro-Football is the owner of the Washington Redskins, a professional football franchise located in the Washington, D.C. area, and one of the thirty-two member clubs of the National Football League ("NFL"). Pl.'s Local Civil Rule 7.1(h) Statement of Material Facts in Supp. of Its Mot. for Summ. J. ("Pl.'s Stmt.") ¶¶ 1-2; Compl. ¶ 4. On or about July 8, 1932, George Preston Marshall, along with Vincent Bendix, Jay O'Brien, and Dorland Doyle, purchased a then-inactive Boston National Football League franchise. Pl.'s Stmt. ¶ 3. Within the year, his co-owners dropped out and Mr. Marshall was left as the sole owner of the franchise. Id. The Boston team played the 1932 season in Braves Field, home of Boston's then-National League baseball team, and like the baseball team, were known as "The Braves." Id. ¶ 4. On or about July 8, 1933, Mr. Marshall officially changed the name of his franchise from the "Boston Braves" to the "Boston Redskins." Id. ¶ 5. Mr. Marshall chose to rename his franchise the Redskins in honor of the team's head coach, William "Lone Star" Dietz, who was a Native American. Id. ¶ 7.*fn6

Around this time, i.e. the 1930's, the Redskins began to use the marks:

Editor's note: graphic not available

and "REDSKINS" in commerce. Id. ¶ 6 (observing that these marks were later registered as Registration Nos. 836,122 and 1,085,092 respectively).*fn7 On or about February 13, 1937, the Boston Redskins franchise moved to the Washington, D.C. area and were re-christened the "Washington Redskins." Id. ¶ 9. On or about September 16, 1937, the day of the Redskins' first game in Washington, D.C., the Redskins began to use the mark "WASHINGTON REDSKINS" in commerce. Id. ¶ 10. In or about January 1941, the Redskins started using the following marks in commerce:

Id. ¶ 11. In or about 1962, the Redskins started using the "REDSKINETTES" mark in commerce in connection with its cheerleaders. Id. ¶ 13.

b. The Challenged Trademarks

On July 14, 1966, the Redskins filed application serial number 72/250,227 for the mark:

Editor's note: graphic not available

for use in connection with "entertainment services–namely, football exhibitions rendered live in stadia and through the media of radio and television broadcasts" in International Class 041. Id. ¶ 24. On July 11, 1967, the PTO published this application for public opposition in the Official Gazette. Id. The PTO issued registration number 836,122 for this mark on September 26, 1967. Id.*fn8 On September 26, 1987, the PTO renewed the Redskins' registration for an additional twenty years. Id. ¶ 40.

On September 11, 1972, the Redskins filed application serial number 72/435,127 for the

Editor's note: graphic not available

trademark, application serial number 72/435,243 for the "WASHINGTON REDSKINS" trademark, and application serial number 72/435,244 for the

Editor's note: graphic not available

trademark, all for use in connection with "entertainment services–namely, presentations of professional football contests" in International Class 041. Id. ¶ 26. The first of these three trademarks was published in the Official Gazette on November 6, 1973, and the other marks were likewise published. Id. ¶¶ 30-31.*fn9 On June 18, 1974, the PTO issued registration number 986,668 for first of these three trademarks. Id. ¶ 33. On February 12, 1974, the PTO issued registration number 978,824 for the second of these two trademarks. Id. ¶ 32. On June 25, 1974, the PTO issued registration number 987,127 for the third of these trademarks. On June 18, 1994, the first of these trademarks was renewed for ten years. Harjo II, 50 U.S.P.Q.2d at 1708 n.7. On February 12, 1994, the PTO renewed the second of these three trademarks for ten years. Id. at 1707 n.3. On June 25, 1994, the PTO renewed the third of these three trademarks for ten years. Id. at 1708 n.8.

On November 26, 1976, the Redskins filed application serial number 73/107,873 for the mark "REDSKINS" for use in connection with "entertainment services–namely, presentations of professional football contests" in International Class 041. Pl.'s Stmt. ¶ 35. The PTO issued registration number 1,085,092 for this mark on February 7, 1978, following publication in the Official Gazette. Id.*fn10 On February 7, 1998, this trademark was renewed for a period of ten years. Harjo II, 50 U.S.P.Q.2d at 1707 n.4.

On October 4, 1989, the Redskins filed application serial number 73/829,272 for the mark "REDSKINETTES" for use in connection with "entertainment services, namely, cheerleaders who perform dance routines at professional football games and exhibitions and other personal appearances" in International Class 041. Pl.'s Stmt. ¶ 42. The PTO published this application for public opposition in the Official Gazette on April 24, 1990. Id. The PTO issued registration number 1,606,810 for this mark on July 17, 1990. Id.*fn11

3. The TTAB's Findings of Fact

The TTAB made specific findings of fact in only two areas: (1) the testimony of expert linguists, Harjo II, 50 U.S.P.Q.2d at 1731-32, and (2) survey evidence, id. at 1734. With these two exceptions, the TTAB made no other findings of fact regarding the voluminous record and instead merely presented the evidence of each of the parties in the form of summaries. Id. at 1721 ("[E]xcept for the testimony and related exhibits of the parties' linguistics experts and marketing and survey experts, we summarize the testimony and related exhibits of, first, petitioners' witnesses and, second, respondent's witnesses."). Again, it should be noted that the testimony supporting these findings was in the form of depositions and not in the form of live testimony before the finders of fact. The Court now turns to these findings.*fn12

a. The Expert Linguist Testimony

During the proceedings below, Petitioners presented the testimony of Geoffrey Nunberg, a linguistics expert, while Pro-Football presented the testimony of David Barnhart and Ronald Butters, who also are linguistics experts. Id. at 1728. The experts explained that linguistics is "the study of language and its uses, both generally and within particular populations or historical contexts; and that lexicography is the branch of linguistics concerned with the meaning of words with respect to the production of dictionaries." Id. The Board then summarized the testimony of these experts. Id. at 1728-31. After compiling this summary, the TTAB essentially made five findings of fact regarding the linguists' testimony. These findings of fact are:

1. "There is no dispute among the linguistics experts that the word 'redskin(s)' has been used historically to refer to Native Americans, and is still understood, in many contexts, as a reference to Native Americans." Id. at 1731.

2. "[F]rom at least the mid-1960's to the present, the word 'redskin(s)' has dropped out of written and most spoken language as a reference to Native Americans." Id.

3. "[F]rom at least the mid-1960's to the present, the words 'Native American,' 'Indian,' and 'American Indian' are used in spoken and written language to refer to Native Americans." Id.

4. "[F]rom at least the mid-1960's to the present, the word 'redskin(s)' appears often in spoken and written language only as a reference to respondent's football team." Id.

5. "The experts agree the evidence of record establishes that, until at least the middle of this century, spoken and written language often referred to Native Americans in a derogatory, or at least condescending, manner and that references to Native Americans were often accompanied by derogatory adjectives and/or in contexts indicating savagery and/or violence." Id. (noting that "[t]here is no dispute that, while many of these usage examples refer to Native Americans as 'Indians,' the word 'Indian' has remained in the English language as an acceptable reference to Native Americans during the second half of this century").

Importantly, in making these findings of fact, the TTAB specifically indicated where it was declining to make certain findings of fact regarding the linguistic expert testimony. First, with regard to the testimony of the experts "about the denotation and connotation of 'redskin(s)' as a reference to Native Americans and as it appears in the name of respondent's football team," the TTAB found that "[t]o some extent, this testimony is self-serving and the opinions of the different individuals seem to negate each other's assertions, which offsets whatever probative value could be attributed to this portion of their testimony." Id. at 1731. Second, with regard to the question of "significance of the word 'redskin(s)['] in written and spoken language from the 1960's to the present, both as a reference to Native Americans and as part of the name of respondent's football team," the TTAB reasoned that this testimony reached the ultimate legal inquiry that was before the TTAB and therefore was not considered in rendering its decision. Id. Third, the TTAB noted that in reaching their conclusions, the experts made statements that required "scrutiny." Id. at 1732. The TTAB stated:

For example, while respondent's linguistics experts contend that the word "redskin(s)" is merely an informal term, petitioners' expert notes, credibly, that such a characterization does not address the issue of whether the connotation of 'redskin(s)' in any given instance is negative, neutral or positive. Nor does the characterization of the word "redskin(s)" as informal adequately address the question of why the word appears, on this record, to have entirely dropped out of spoken and written language since, at least, the 1960's, except in reference to respondent's football team.

Id. The TTAB, however, reached no further than these observations and did not make a finding of fact on the implication of these omissions by Pro-Football's experts.

Finally, the Board summarized the dictionary results that were in evidence and simply cataloged the evidence without making any specific findings of fact:

Looking to dictionary definitions of the word "redskin(s)," the experts agree that the many dictionaries in evidence, including dictionaries from the time periods when each of the challenged registrations issued, define "redskin" as a Native American person; that one dictionary also defines "Redskin" as respondent's professional football team; and that several dictionaries, dating from 1966 to the present, include usage labels indicating that the word "redskin" is an offensive reference to Native Americans, whereas several dictionaries, dating from 1965 to 1980, do not include such usage labels in defining "redskin." Predictably, the experts' opinions differ as to the significance to be attached to the usage labels, or the lack thereof. We find these contradictory opinions of little value in resolving this dispute. Thus, we have considered the dictionary definitions themselves in the context of the entire record.

Id. (emphasis added). Again, the Board declined to make specific findings of fact with regard to the experts' different views on the usage labels contained in the dictionary definitions. Instead, of making findings of fact on the significance of these usage labels or their importance, or on usage labels in general, the TTAB simply considered the dictionary definitions, themselves, in the context of its legal analysis, without relying on the experts' opinions. With regard to the linguists' expert deposition testimony, therefore, the TTAB made only five findings of fact. These findings of fact were taken from undisputed portions of the record. The TTAB did not credit one side's experts over another side's experts in making these findings.

b. The Survey Evidence

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 testified by deposition in the TTAB proceeding. Defs.' Stmt. ¶ 15. In March of 1996, Dr. Ross conducted a survey for purposes of this case. Id. Dr. Ross stated that the purpose of the survey was "to determine the perceptions of a substantial composite of the general population and of Native Americans to the word "redskin(s)" as a reference to Native Americans. Harjo II, 50 U.S.P.Q.2d at 1732. Dr. Ross surveyed three hundred and one American adults and three hundred and fifty-eight Native American adults. Id. (observing that both groups included men and women ages 16 and above).

The Native American group was "a stratified sample." Id. First, Dr. Ross selected the twenty states with the highest numbers of Native Americans, excluding Alaska and Hawaii. Pl.'s Mot., Ex. 196, Ross Rep., Letter to Ivan Ross from Jim Robinson on "Method of Drawing Sample for Native American Project" at 1. After selecting these twenty states, the Business Research Bureau of the University of South Dakota stratified the counties by percentage of population which is Native American. Id. Dr. Ross's polling firm selected the top fifty counties from among all twenty states, for which a random sample was then drawn. Id. These counties fell in only thirteen states. Id. The final step in getting a sample involved Dr. Ross's polling firm taking precautions against polling only in urban areas. Id. at 1-2. The net result was a sample where the top fifty census tracts fell into only twelve states. Id. at 2. According to Dr. Ross, the Native American sample reflected "a consistent mix of rural and urban Native Americans; and included both registered members of Indian tribes and non-registered individuals who identified themselves as Native American." Harjo II, 50 U.S.P.Q.2d at 1732-33.

The survey was constructed as follows:

Individuals in both population groups were read a list, in varying order, of the following terms: "Native American," "Buck," "Brave," "Redskin," "Injun," "Indian," and "Squaw." With respect to each term, participants were asked whether or not they, or others, would be "offended" by the use of the term and, if so, why. Dr. Ross testified that he chose these terms as representative of a spectrum of acceptability, positing that, in general, "Native American" would be likely to be considered acceptable and "Injun" would be likely to be considered pejorative. Dr. Ross testified that, for the question, he chose the word "offensive" as most likely to reflect, to those unfamiliar with trademark law, the behavioral concepts embodied in the terms "scandalous" and "disparaging" in the trademark law. Dr. Ross stated that asking participants whether others might be offended is an accepted additional means of obtaining the speaker's opinion, based on the assumption that the speaker may be circumspect in answering a direct question.

Id. at 1733.*fn13 On the basis of these questions, Dr. Ross found that 46.2% of the general population sample would be personally offended by the use of the term "redskin" and 36.6% of the Native American population sample would be personally offended by the use of the term "redskin." Id.

Pro-Football did not conduct its own survey; however, it did provide an expert witness to critique Dr. Ross's survey. Id. Dr. Jacob Jacoby, a psychologist and expert in the area of marketing and trademark surveys made a number of criticisms. His critique of the questions asked stated that:

• the questions in the survey were leading and not neutral;

• the lists of words referring to Native Americans contained an insufficient number of terms;

• in using the term "offensive" in its questions, the survey did not illicit the necessary information for a determination under section 2(a);

• asking questions about what others think leads to ambiguous results. Id. Dr. Jacoby's analysis of the sampling procedure led him to conclude:

• the Native American sample was too geographically limited to be representative;

• the method for ascertaining whether a participant is a Native American was flawed;

• the birthday sample method used by Dr. Ross violated the randomness of the survey;*fn14

• the age requirements for the survey included participants who could not reflect the state of ...


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