284 F. Supp. 2d 96 (D.D.C. 2003)
In other words, Defendants/Petitioners at the agency level needed to demonstrate by a preponderance of the evidence that the challenged trademarks “may disparage” Native Americans or “bring them into contempt, or disrepute.”
Pro-Football challenges this assertion by arguing that Defendants need to prove their case by “clear and convincing evidence.” Pl.’s Reply at 15-16. In the usual course, a petitioner seeking a cancellation before the TTAB needs to prove his or her case by a preponderance of the evidence. Material Supply, 146 F.3d at 990 (citing various authority). Pro-Football observes however that the clear and convincing evidence standard was employed in the case of Woodstock’s Enters., Inc. v. Woodstock’s Enters., Inc., 43 U.S.P.Q.2d 1440, 1997 WL 440268 (Trademark Tr. & App. Bd.1997). Pl.’s Mot. at 16 n. 18. However, the use of the “clear and convincing” evidence standard in Woodstock’s Enters. was employed because the cancellation of the trademark was premised on fraud in the application. Woodstock’s Enters., 43 U.S.P.Q.2d at 1443, 1997 WL 440268 (“It does appear that the very nature of the fraud requires that it be proven ‘to the hilt’ with clear and convincing evidence.”). This case does not involve any allegations of fraud in the application and, therefore, Woodstock’s Enters. is inapplicable.
Pro-Football also cites to Eurostar, Inc. v. “Euro-Star” Reitmoden Gmbh & Co., 34 U.S.P.Q.2d 1266, 1995 WL 231387 (Trademark Tr. & App. Bd.1995) to support its position that a “clear and convincing” evidentiary standard should apply. Pl.’s Mot. at 16 n. 18. However, in Eurostar the court suggested the “clear and convincing” evidentiary standard because the case involved a cancellation of a trademark due to abandonment. Eurostar, 34 U.S.P.Q.2d at 1273, 1995 WL 231387 (Simms, administrative trademark judge, concurring) (“Moreover, we should keep in mind that abandonment is generally regarded as a forfeiture of rights and the courts and the Board have required strict or clear and convincing proof before finding abandonment.”); but see Cerveceria Centroamericana, S.A. v. Cerveceria India, Inc., 892 F.2d 1021, 1024 (Fed.Cir.1989) (applying preponderance of the evidence standard to abandonment proceeding). As the instant case does not involve an abandonment of the trademark at issue, Eurostar is equally inapplicable. Finally, Pro-Football vaguely alleges that because its First Amendment interests are at stake, clear and convincing evidence is required. Pl.’s Mot. at 16 n. 18 (citing Gertz v. Robert Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)). This Court has delayed ruling on the constitutional questions and even putting that aside, Gertz involved a libel claim, which as Defendants point out, is similar to a claim of fraud in that it requires a heightened standard of proof. Defs.’ Opp’n at 5 n. 1.
Instead, of a “clear and convincing evidence” standard, the Court concludes that a “preponderance of the evidence” standard applied to the Defendants’ burden during the TTAB proceeding. Harjo II, 50 U.S.P.Q.2d at 1735 n. 90, 1999 WL 375907. Unfortunately, the TTAB failed to remark that in the context of cancellation proceedings where a lengthy period of time ensues between registration and the cancellation request, the Board is required to pay even closer attention to the proof adduced to buttress the cancellation request. A popular and oft-cited commentary on trademarks observes:
The registrant in a cancellation proceeding is entitled to the prima facie presumption that the registration and the mark are valid, that registrant is the owner and that registrant has the exclusive right to use the mark. Thus, cancellation of a valuable registration around which a valuable business good will has been built, should be granted only with “due caution and after a most careful study of all the facts.” The Court of Customs and Patent Appeals has stated that in cancellation proceedings:
The defendant [respondent] in such proceedings is one who has obtained substantial rights from the Government upon or about which he may have built a large and, of course, legitimate business. The cancellation of one’s trademark [sic] may prove destructive to the business built about it. Surely, no registration should be can-celled hastily and without a most careful study of all the facts.
3 McCarthy, supra, § 20:64, at 117-18 (footnotes omitted) (cited with approval in Material Supply, 146 F.3d at 989-90). Moreover, as the Court of Customs and Patent Appeals once said, “the longer a party waits, after the time for bringing an opposition has expired, to commence a cancellation proceeding, the greater may be the number of facts (e.g., evidence of actual confusion) to be considered in determining the quantum of proof required.” Massey Junior Coll., Inc. v. Fashion Inst. of Tech., 492 F.2d 1399, 1402 (Cust. & Pat. App.1974).
The TTAB’s decision is silent on 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.” Nevertheless, the Board stated that it applied the preponderance of the evidence standard and that is all that the case law requires. Therefore, reviewing de novo the decision of the TTAB, the Court finds that the preponderance of the evidence standard adopted by the Board in the proceedings below was appropriate.
After acknowledging the dearth of precedent to guide their hand in interpreting the disparagement clause of section 2(a), Harjo II, 50 U.S.P.Q.2d at 1737, 1999 WL 375907, the TTAB approached the task as it would a charge of scandalousness under section 2(a). Id. No party disputes this approach and the Court finds no error in treating the two as similar for purposes of developing a conceptional framework. First, the TTAB has not conflated the two approaches and has made sure to note differences where appropriate. Second, the TTAB has noted the dearth of legislative history on the disparagement provision in section 2(a). Id. at 1737 n. 98, 1999 WL 375907. Given the lack of legislative history as a guide, and the TTAB’s efforts to adjust the scandalousness framework for the disparagement inquiry, the Court finds no error in the TTAB’s approach.
The TTAB first defined the term “disparage” in accordance with the ordinary and common meaning of the term. Id. From this review, the Board concluded that the trademarks may disparage if they may “dishonor by comparison with what is inferior, slight, deprecate, degrade, or affect or injure by unjust comparison.” Id. The Board then observed that unlike the inquiry into whether a trademark is scandalous, where the test looks to the reaction of American society as a whole, a disparagement test is much more circumscribed and is limited by section 2(a) of the Lanham Act. Id. The TTAB stated that “it is only logical that in deciding whether the matter may be disparaging we look, not to American society as a whole, ... but to the views of the referenced group.” Id. at 1739, 1999 WL 375907. The views of the referenced group, the Board concluded, are “reasonably determined by the views of a substantial composite thereof.” Id. (citing In re Hines, 31 U.S.P.Q.2d 1685, 1688, 1994 WL 456841 (Trademark Tr. & App. Bd. T.A.B.1994), vacated on other grounds 32 U.S.P.Q.2d 1376, 1994 WL 587037 (Trademark Tr. & App. Bd.1994)). To determine the referenced group, the TTAB adopted the test from In re Hines, which looks to “the perceptions of ‘those referred to, identified or implicated in some recognizable manner by the involved mark.’” Id. at 1740, 1999 WL 375907 (quoting Hines, 31 U.S.P.Q.2d at 1688, 1994 WL 456841) (“In determining whether or not a mark is disparaging, the perceptions of the general public are irrelevant. Rather, because the portion of section 2(a) proscribing disparaging marks targets certain persons, institutions or beliefs, only the perceptions of those referred to, identified or implicated in some recognizable manner by the involved mark are relevant to this determination.”).
As the parties have not objected to this approach and because this approach is often used in cancellation proceedings, the Court does not find legal error in applying it to this proceeding.
In addition, the TTAB concluded that the addition of the term “may” before the word “disparage” in the Lanham Act was to “avoid an interpretation of this provision which would require an intent to disparage.” Id. at 1738, 1999 WL 375907 (noting that such an interpretation shifts the focus to whether the matter may be perceived as disparaging). This conclusion is also not disputed by the parties.
Most importantly, the TTAB pointed out that “the question of disparagement must be considered in relation to the goods or services identified by the mark in the context of the marketplace.” Id. (citing Doughboy Indus., Inc. v. The Reese Chem. Co., 88 U.S.P.Q. 227, 1951 WL 4167 (1951)). In the Doughboy case, the Examiner-in-Chief of the Patent Office observed, “that a trade mark was unregistra-ble if it was scandalous by reason of the particular goods in connection with which it was used [and t]his same interpretation, it is believed, should also apply to section 2(a) of the new Act, not only in connection with scandalous matter, but also in connection with matter which may disparage persons.” Doughboy Indus., Inc., 88 U.S.P.Q. at 228, 1951 WL 4167. In Doughboy, the Patent Office denied the registration for DOUGHBOY for an anti-venereal preparation. Id. at 227, 1951 WL 4167. The Patent Office observed that the mark DOUGH-BOY, a name for American soldiers in World War I, was disparaging in connection with an anti-venereal prophylactic preparation; particularly given its packaging which featured depictions of American soldiers. Id. at 228, 1951 WL 4167. Based on this case, the TTAB appropriately concluded that:
To ascertain the meaning of the matter in question, we must not only refer to dictionary definitions, but we must also consider the relationship between the subject matter in question and the other elements that make up the mark in its entirety; the nature of the goods and/or services; and the manner in which the mark is used in the marketplace in connection with the goods and/or services.
Harjo II, 50 U.S.P.Q.2d at 1739, 1999 WL 375907. The Court finds no error in this approach.
The Court concludes that the TTAB correctly stated the test for disparagement and neither of the parties specifically dispute this approach. The Board stated:
[0]ur analysis is essentially a two-step process in which we ask, first: 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 services identified in the registrations? Second, we ask: Is this meaning one that may disparage Native Americans? As previously stated, both questions are to be answered as of the dates of registration of the marks herein.
Id. at 1741, 1999 WL 375907 (emphasis in original). Since the oldest trademark in this case was issued in 1967 and the newest was issued in 1990, the Board “focus[ed its] determination of the issue of disparagement on the time periods, between 1967 and 1990, when the subject registrations issued.” Id. None of the parties contest this approach and the Court finds no error in the TTAB’s articulation of this test for disparagement.
The Court concludes that the TTAB’s finding that the marks at issue “may disparage” Native Americans is unsupported by substantial evidence, is logically flawed, and fails to apply the correct legal standard to its own findings of fact. With no material facts in dispute, the Court finds that Defendants’ motion for summary judgment must be denied, and that Pro-Football’s motion must be granted as to the Counts I and II of the Complaint. The Court will first turn to the TTAB’s discussion of the “meaning of the matter in question,” and then will focus on the TTAB’s decision that the matter “may disparage” Native Americans.
The Court concludes that substantial evidence exists in the record to support the TTAB’s finding that “when considered in relation to the other matter comprising at least two of the subject marks and as used in connection with [Pro-Football]’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. at 1742, 1999 WL 375907 (noting that this conclusion is equally applicable to the time periods encompassing 1967, 1974, 1978 and 1990, as well as to the present time”). The TTAB began its analysis by focusing on the word “redskin(s)” as it appears in each of the six challenged trademarks. Id. at 1741, 1999 WL 375907. The TTAB observed that one denotive meaning of the word was a Native American person. Id. The TTAB observed that dictionary definitions and articles that refer to the word “redskm(s)” in connection with Native Americans indicate the term has remained a denotive term for Native Americans from the 1960’s to the present. Id.; see also id. n. 109, 1999 WL 375907. The TTAB, however, also agreed with Pro-Football that “there is a substantial amount of evidence in the record establishing that, since at least the 1960’s and continuing to the present, the term ‘Redskins’ has been used widely in print and other media to identify [Pro-Football’s] professional football team and its entertainment services.” Id. at 1741, 1999 WL 375907.
Nevertheless, the TTAB observed that, in focusing on the manner in which Pro-Football’s trademarks were actually used in the marketplace, the Washington Redskins football club used Native American imagery throughout its logos and team imagery. Id. at 1741-42, 1999 WL 375907. The TTAB found that although the record disclosed that the vast majority of the use of the term “redskin(s)” in the media and press since the 1960’s refers to the Washington football club, “it would be both factually incomplete and disingenuous to ignore the substantial evidence of Native American imagery used by [Pro-Football], as well as by [Pro-Football’s] fans, in connection with [Pro-Football’s] football team and its entertainment services.” Id. at 1742, 1999 WL 375907. Indeed, the TTAB noted that two of the registered marks include a portrait of the profile of a Native American and what presumably is a Native American spear. Id. Given this situation the TTAB remarked:
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.
The Court determines that the TTAB’s conclusion that the six trademarks may disparage Native Americans is not supported by substantial evidence. The Board began by correctly articulating the question before it as “whether the word ‘redskin(s)’ may be disparaging of and to Native Americans, as that word appears in the marks in the subject registrations, in connection with the identified services, and during the relevant time periods.” Id. at 1743, 1999 WL 375907. In answering this question and rendering its opinion, the Board made a number of initial statements that are problematic.
In rendering its decision, the TTAB stated that “we consider the broad range of evidence in this record as relevant to this question either directly or by inference.” Id. (emphasis added). The difficulty with this statement is transparent. Even a cursory review of the TTAB’s findings of fact reveals that there is no direct evidence in the findings that answers the legal question posed by the TTAB. None of the findings of fact made by the TTAB tend to prove or disprove that the marks at issue “may disparage” Native Americans, during the relevant time frame, especially when used in the context of Pro-Football’s entertainment services. For example, none of the findings of fact related to the linguistic testimony tended to directly prove that the marks at issue “may disparage” Native Americans as used in connection with Pro-Football’s football club during the relevant times at issue. Indeed, the TTAB said it was unable to resolve the dispute between the linguists related to the connotation of the word “redskin(s)” as used in Pro-Football’s team name. Id. at 1731, 1999 WL 375907. Moreover, even if the Court considers all of the findings of fact related to the survey evidence, the survey is not directly disposi-tive of the legal question before the TTAB because it asked participants for views about the word “redskm(s)” as a reference for Native Americans in 1996. The survey did not test the participants’ view of the term “redskin(s)” in the context of Pro-Football’s services and it did not measure the attitudes of the survey participants as they were held during the relevant time periods. While the TTAB noted that such information would have been “extremely relevant,” id. at 1743, 1999 WL 375907, the fact remains 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.
Second, in finding that the trademarks “may disparage” Native Americans, the TTAB stated that “[n]o single item of evidence or testimony alone brings us to this conclusion; rather, we reach our conclusion based on the cumulative effect of the entire record.” Id. at 1743, 1999 WL 375907 (emphasis added). The troubling aspect of this statement is that the Board made findings of fact in only two very specific areas; and many of these findings of fact simply summarized undisputed testimony. As a result, many of the TTAB’s findings of fact never involved weighing conflicting evidence or addressing criticisms of some of the evidence. The TTAB compounded this problem by declining to make specific findings of fact in key areas. See, e.g., id. at 1731, 1999 WL 375907 (“To 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.”). The result of this approach is that the TTAB reached its decision to cancel the trademarks inferentially, by piecing together bits of limited, undisputed evidence from the record. Even though the Court defers to the TTAB’s inferences under the rubric of a substantial evidence review, the TTAB’s approach is flawed because as will be demonstrated infra, the inferences are predicated on assumptions that are not contained anywhere in the record.
As the Court explains infra, the decision of the TTAB cannot withstand even the deferential level of judicial scrutiny provided by the substantial evidence test. While a de novo test to the TTAB’s findings of fact might have led to an immediate reversal, due to the paucity of actual findings of fact, the substantial evidence test counsels otherwise and requires that the Court not substitute its judgment for that of the TTAB. Instead, the Court reviews point-by-point whether “substantial evidence” supports the TTAB’s disparagement finding.
In rendering its decision, the TTAB stated that “[w]e have considered the perceptions of both the general public and Native Americans to be probative [to determining if the marks at issue ‘may disparage’].” Id. at 1743, 1999 WL 375907. The TTAB went on to state:
For example, we have found that the evidence supports the conclusion that a substantial composite of the general public finds the word “redskin(s)” to be a derogatory term of reference for Native Americans. Thus, in the absence of evidence to the contrary, it is reasonable to infer that a substantial composite of Native Americans would similarly perceive the word. This is consistent with the testimony of the petitioners.
Id. at 1743-44, 1999 WL 375907 (emphasis added). The problem with this approach is manifest.
First, and most importantly, the Ross survey indicates that the views of the general populace and the Native American population are distinct. Id. at 1733, 1999 WL 375907 (36.6% of Native Americans view the term “redskin” offensive as a term of reference for Native Americans, compared to 46.2% for the general population). Thus, the evidence before the TTAB indicated that the views of the Native Americans on this issue were not congruent with that of the population as a whole.
Second, the legal question before the TTAB only pertained to whether a “substantial composite” of Native Americans would conclude that the term “redskin(s)” may disparage. As the Board itself stated only five pages earlier in its opinion, “it is only logical that, in deciding whether the matter may be disparaging, we look, not to American society as a whole, as determined by a substantial composite of the general population, but to the views of the referenced group.” Id. at 1739, 1999 WL 375907 (emphasis added); id. (quoting Hines, 31 U.S.P.Q.2d at 1688, 1994 WL 456841) (“ ‘In determining whether or not a mark is disparaging, the perceptions of the general public are irrelevant.’ ”) (emphasis added). By concluding that the views of the general public were probative, the TTAB erred. By focusing on the general public and inferring that the Native Americans would simply agree with those views, the TTAB made a decision unsupported by substantial evidence.
Third, outside the testimony of the seven Native Americans who brought suit, the TTAB cited no independent or additional evidence to support its conclusion. Defendants clearly do not constitute a “substantial composite” of Native Americans. From this testimony it was impossible for the Board to reasonably corroborate its decision to equate the views of the American public with the views of the Native American population.
Fourth, the TTAB reached this conclusion only because there was an “absence of evidence to the contrary,” id. at 1744, 1999 WL 375907, thus, completely shifting the burden of proof in the wrong direction. This is not a case of the TTAB simply crediting unrebutted evidence. Indeed, the Ross survey and other evidence clearly demonstrates that the views of Native Americans do not necessarily correlate with the views of the general population. At the very least, there was other evidence in the record that the TTAB ignored in making this finding.
Since Defendants had the burden of proving their case by a preponderance of the evidence in the proceeding below, the TTAB, by making this statement, impermissibly shifted the burden to Pro-Football. Consequently, the Court is unable to conclude that this finding is supported by substantial evidence.
The TTAB began by discussing the term “redskin(s),” decoupled from Pro-Football’s entertainment services. Putting aside the relevance of this sojourn into linguistics, the Board concluded that “the word ‘redskin(s)’ has been considered by a substantial composite of the general population, including by inference Native Americans, a derogatory term of reference for Native Americans during the time period of relevance herein.” Id. at 1746, 1999 WL 375907 (emphasis added). As the Court has already explained, the TTAB’s decision to conflate the views of the general population with those of Native Americans cannot be supported by substantial evidence. Nevertheless, even a review of the evidence that supports this conclusion leads the Court to conclude that the TTAB’s finding on this point was not supported by substantial evidence. The Court examines this evidence in turn.
In support of the proposition that the term “redskin(s)” was a derogatory term for Native Americans, the TTAB first turned its attention to the dictionary definitions that were in evidence. As discussed supra, the TTAB had refused to make findings about the expert testimony surrounding the definitions and therefore only had the dictionary definitions, themselves, to consider. The TTAB observed that half of the dictionaries in the record contained a usage label indicating, for example, that the word “redskin(s)” is “often offensive,” “informal,” or “offensive slang.” Half of the dictionaries did not have any usage labels. Based solely on this evidence, the TTAB wrote that “from the fact that usage labels appear in approximately half of the dictionaries of record at any point in the time period covered, we can conclude that a not insignificant number of Americans have understood ‘redskin(s)’ to be an offensive reference to Native Americans since at least 1966.” Id. at 1744, 1999 WL 375907.
There are a number of concerns that the Court has with this conclusion. First, the TTAB expressly found that it would not make findings on the conflicting linguistic expert testimony that related to the “significance to be attached to the usage labels, or the lack thereof.” Id. at 1732, 1999 WL 375907. Even though it made this statement, the TTAB still made a finding about the significance to be attached to the usage labels in the dictionary. The TTAB’s conclusion is without any basis because there is no evidence in the record that was credited as to the purpose and methodology for including or not including usage labels in dictionaries or an explanation as to the basis for their conclusion. There are no findings of fact to support the TTAB’s conclusion; rather, it is mere speculation on the part of the TTAB that this is the case.
Second, the fact that a “not insignificant number of Americans have understood “redskin(s)” to be an offensive reference to Native Americans,” has nothing to do with whether Native Americans, themselves, consider the term “offensive,” which would obviously be more probative or relevant. Third, the dictionary evidence only states that the term “redskin(s)” is “often offensive,” which, as Pro-Football observes, means that in certain contexts the term “redskin(s)” was not considered offensive. Pl.’s Mot. at 27. In fact, the TTAB concluded that the term “redskin(s)” means both a Native American and the Washington-area professional football team. The fact that it is usually offensive may mean the term is only offensive in one of these contexts. There is not a discussion of this possibility in the TTAB’s opinion. Moreover, as Defendants’ own expert observed, “[disparaging and offensive are two different words and mean two different things.” PL’s Stmt. ¶ 124.
Finally, the dictionary evidence was, at best, equivocal. The TTAB observed in a footnote that:
In view of the contradictory testimony of the parties’ linguistics experts regarding the significance of a lack of usage label for a dictionary entry, we cannot conclude that the lack of such labels in the other excerpts of record establishes that the word “redskin(s)” was not considered offensive during the relevant time period.
Harjo II, 50 U.S.P.Q.2d at 1744 n. 114, 1999 WL 375907 (emphasis in original).
By the same token, however, the conflicting linguist expert testimony should not necessarily lead to a finding that usage labels establish that the term “redskin(s)” was necessarily considered offensive by the American public. Accordingly, the Court finds that the TTAB’s findings related to the significance of the dictionary evidence are not supported by substantial evidence.
The TTAB next deviated into a lengthy discussion of the history of the term “redskin(s).” The TTAB observed that it had found that during the late 1800’s and early 1900’s that the vast majority of evidence which included the word “redskin(s)” as a reference for Native Americans, portrayed Native Americans in a “derogatory manner.” Id. at 1744, 1999 WL 375907.
The TTAB then observed that the evidence demonstrates that by the 1930’s through the late 1940’s the word “redskin(s)” as a reference for Native Americans “reflected] a slightly less disdainful, but still condescending, view of Native Americans.” Id. at 1745, 1999 WL 375907. However, the TTAB then states that “[f|rom the 1950’s forward, the evidence shows, and neither party disputes, that there are minimal examples of uses of the word ‘redskin(s)’ as a reference to Native Americans.” Id. During this same time period the TTAB noted that the record reflects “significant occurrences of the word ‘redskin(s)’ as a reference to [Pro-Football’s] football team.” Id. From this latter evidence, the TTAB stated:
[W]e conclude from the evidence of record that the word “redskin(s)” does not appear during the second half of this century in written or spoken language, formal or informal, as a synonym for “Indian” or “Native American” because it is, and has been since at least the 1960’s, perceived by the general population, which includes Native Americans, as a pejorative term for Native Americans.
Id. The Court determines that this finding is also not supported by substantial evidence because no concrete evidence supports this conclusion.
First, the TTAB agreed with Pro-Football, that “the pejorative nature of ‘redskin(s)’ in the early historical writings of record comes from the overall negative viewpoints of the writings.” Id. Despite this finding, the TTAB merely assumed that because the term “redskin(s)” dropped out of use as a term for Native Americans it must have been because the term was derogatory. There is no evidence in the record to support this finding one way or the other. Concerned with adopting witness testimony that reached the ultimate legal question, the TTAB did not make findings regarding the significance of the use of the word from the 1960’s onward. Id. at 1731, 1999 WL 375907. However, the 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. The ultimate legal inquiry is not whether the term “redskin(s)” is a pejorative term for Native Americans. Accordingly, the TTAB’s reluctance to make findings in this area deprives the Court of meaningful review. There is no evidence to support the conclusion that the drop-off of the use of the term “redskin(s)” as a reference for Native Americans is correlative with a finding that the term is pejorative. Accordingly, the Court finds that this finding is unsupported by substantial evidence.
As discussed earlier, the Court found the TTAB’s conclusion that the survey could be extrapolated to the Native American population as a whole to be unsupported by substantial evidence. Nevertheless, to the extent that the survey would be even included in the calculus, the Court determines that it does not support the TTAB’s decision that the word “redskin(s)” was viewed by a substantial composite of Native Americans to be a derogatory term of reference for Native Americans from the mid-1960’s to 1990. The survey measures attitudes of Native Americans about their perceptions of the term “redskin” as used as a reference to Native Americans in 1996. The survey, therefore, is entirely irrelevant to the question before the Board.
As the TTAB itself observed, “[n]either [the fact that the survey measured the views of individuals not alive at the time of registration of certain of the trademarks or the fact that the survey did not consider participants’ views of the word ‘redskm(s)’ as used in connection with Pro-Football’s entertainment services] diminishes the value of petitioners’ survey for what it is — a survey of current attitudes towards the word “redskin(s)” as a reference to Native Americans.” Id. at 1734, 1999 WL 375907 (emphasis added). The TTAB has no evidence, therefore, to draw a conclusion that during the relevant time periods, i.e. 1967, 1974, 1978, and 1990, the term Native Americans was a pejorative term for Native Americans.
Putting aside the fact that the survey results have no bearing on Native Americans perceptions of the term “redskin(s)” as used in connection with the Pro-Football’s professional sports team, the survey tells us nothing about the relevant time frame. Accordingly, it fails to support with substantial evidence the TTAB’s finding that the term “redskin(s)” is viewed by a substantial composite of Native Americans as a derogatory term for Native Americans.
The TTAB next turned to the ultimate inquiry before the Board and found that “within the relevant time periods, the derogatory connotation of the word ‘reds-Mn(s)’ in connection with Native Americans extends to the term ‘Redskin(s)’ as used in [Pro-Football’s] marks in connection with the identified services, such that [Pro-Football’s] marks may be disparaging of Native Americans to a substantial composite of this group of people.” Id. at 1748, 1999 WL 375907. The crux of the TTAB’s conclusion, therefore, is that the “derogatory connotation of the word ‘redskin(s)’ ” extends to the term “Redskin(s)” as used in connection with Pro-Football’s entertainment services. This finding is not supported by substantial evidence.
To reach its conclusion that the trademarks may disparage Native Americans, the TTAB essentially determined that because the word “redskin(s)” may be viewed by Native Americans as derogatory when used as a reference for Native Americans, the trademarks are disparaging because they use that word. The result of this analysis is that there is very little discussion of the use of the mark in connection with Pro-Football’s product or services. Unlike in the Doughboy case, where the Examiner-in-Chief of the Patent Office stated that use of the term “Doughboy”-a reference for a World War I soldier-was disparaging when used to sell an anti-venereal prophylactic, Doughboy, 88 U.S.P.Q. at 228, 1951 WL 4167, in this case the TTAB did very little analysis of how the use of the trademarks in connection with Pro-Football’s services disparages Native Americans. The Board was content with stating that because it found the name to be pejorative, the marks must be disparaging.
First, the TTAB observed that “[a]s we move through the 1960’s to the present, the evidence shows increasingly respectful portrayal of Native Americans.” Id. at 1746, 1999 WL 375907. The TTAB then noted that “[t]he evidence herein shows a parallel development of [Pro-Football’s] portrayal of Native Americans.” Id. (emphasis added). What the TTAB found therefore, was that during the relevant time periods, the use of the term “redskin(s)” in connection with Pro-Football’s marks was used in a respectful manner. Nevertheless, despite this stunning observation-that during the relevant time frame Pro-Football used Native American imagery in a respectful manner as connected to its entertainment services — the Board still concluded that the use of the term “redskin(s)” was disparaging when used in the context of Pro-Football’s professional football club.
The TTAB apparently premised this conclusion on a number of factors. First, the TTAB discussed the fact that the media has used Native American imagery in connection with Pro-Football’s football team, throughout the entire period, “in a manner that often portrays Native Americans as aggressive savages or buffoons.” Id. at 1747, 1999 WL 375907 (noting newspaper headlines referring to Washington Redskins team, players or managers scalping opponents, seeking revenge on the warpath, holding pow wows, or using pidgin English). In addition, newspaper and video excerpts of games were presented showing Washington Redskins fans dressed “in costumes and engaging in antics that clearly poke fun at Native American culture and portrays [sic] Native Americans as savages and buffoons.” Id. While the TTAB stated that it agreed with Pro-Football that it was not responsible for the actions of the media or its fans, the TTAB, nevertheless, found “the actions of the media and fans ... probative of the general public’s perception of the word ‘redskin(s)’ as it appears in respondent’s marks herein.” Id. (emphasis added). From this evidence, the TTAB concluded that the term “redskin(s)” “retains its derogatory character as part of the subject marks and as used in connection with respondent’s football team.” Id.
The problem with this reasoning is twofold. First, the perceptions of the general public are irrelevant to determining if the marks are disparagin'; to Native Americans. In other wotAt, this evidence is simply not relevant to the legal question in the case. Second, and most importantly, this finding is logically flawed. At best, this evidence demonstrates that Pro-Football’s fans and the media continue to equate the Washington Redskins with Native. Americans and not always in a respectful manner. However, the evidence does not automatically lead the Court to conclude that the word “redskin(s)” as used in Pro-Football’s marks is derogatory in character. 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.
Clearly, the evidence relating to the media and fans has no bearing on whether a substantial composite of Native Americans finds the term “redskin(s)” to be disparaging when used in connection with Pro-Football’s marks. In this regard, the evidence the TTAB put forward comes no where close to meeting the substantial evidence test. First, the TTAB noted that the record contained the testimony of the Defendants who stated that they were “seriously offended” by Pro-Football’s use of the term in connection with its services. Id. This testimony, however, is a reflection of their individual viewpoints and there is no evidence that Defendants’ views are a reasonable proxy for a substantial composite of the entire Native American population. As Pro-Football’s counsel stated at the July 23, 2003, motions hearing, “Do these seven petitioners strongly believe that our famous football team mark Washington Redskins is disparaging? Apparently. That’s fíne. They have an opinion, but they are representing themselves and no one else. There are 2.41 million Native Americans in this country, Your Honor. There are over 500 Native American tribes. So I ask, can petitioner’s opinions, no matter how stridently held, be extrapolated to even one additional Native American by some method acceptable in a courtroom? The answer is, of course, not at all.” Tr. 7/23/2003 at 16.
To corroborate its ultimate conclusion, the TTAB cites to other evidence which this Court views as irrelevant because it has no correlation to the relevant time frame at issue and it does not add exponentially to the requirement that the marks, when used in connection with Pro-Football’s services, are considered disparaging by a substantial composite of Native Americans. The TTAB noted that the record includes Resolutions indicating a present objection to the use of the word “redskin(s)” in connection with Pro-Football’s services, from the National Congress of American Indians (“NCAI"), “a broad-based organization of Native American tribes and individuals” from the Oneida tribe, and from Unity 94, “an organization including Native Americans.” 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. See Pl.’s Mot. at 23. Indeed, all of these resolutions were adopted after Defendants filed their Petition to Cancel. Id. at 24. Moreover, the TTAB made no findings of fact about the strength of this evidence. For example, only two Native Americans voted for the Unity ’94 resolution. Pl.’s Stmt. ¶212.
In addition, the TTAB relies on “news articles,” which appeared at various times from 1969 to 1992, describing Native American objections to the team name. Harjo II, 50 U.S.P.Q.2d at 1747, 1999 WL 375907. The TTAB does not describe the contents of these news articles and it is impossible to determine if they would represent a substantial composite of Native Americans. Moreover, these articles were only introduced to demonstrate “the existence of a controversy spanning over a long period of time.” Id. Again, the existence of a controversy does not inform the Court as to whether the trademarks at issue are perceived of as disparaging by a substantial composite of Native Americans.
Finally, the TTAB relied on a letter written by Harold Gross in 1972 to Edward Bennett Williams, the then-team owner urging the team name be changed. Id. at 1747, 1999 WL 375907. The record also indicates that Mr. Gross and seven other colleagues from Native American organizations met with Mr. Williams to discuss the disparaging nature of the team’s name. Id.; see also PL’s Stmt. ¶ 202. Again, this evidence does not represent a “substantial composite” of Native Americans.
The TTAB concluded that “the evidence of record establishes that, within the relevant time periods, the derogatory connotation of the words “redskin(s)” in connection with Native Americans extends to the term “Redskins,” as used in [Pro-Football’s] marks in connection with the identified services, such that [Pro-Football’s] marks may be disparaging of Native Americans to a substantial composite of this group of people.” Harjo II, 50 U.S.P.Q.2d at 1748, 1999 WL 375907. The Court determines that this decision is not supported by substantial evidence. As such, the decision of the TTAB must be reversed.
In addition to concluding that the TTAB’s finding of disparagement was not supported by substantial evidence, the Court, in the alternative, determines that Pro-Football’s defense of laches would also preclude the cancellation of the six trademarks. As the United States Court of Appeals for the District of Columbia Circuit has stated, “Plaintiffs are encouraged to file suits when courts are in the best position to resolve disputes.” NAACP v. NAACP Legal Def. and Educ. Fund, Inc., 753 F.2d 131, 137 (D.C.Cir.1985). The best time to resolve this case was 1967 or shortly thereafter. The net result of the delay is that there is no direct or circumstantial evidence in the record that, at the times the trademarks were registered, the trademarks at issue were disparaging; even though the Native Americans contend that during this entire time period the trademarks were disparaging. Hence, the evidence used by the TTAB to support its disparagement conclusion was purely inferential. The Court, like the TTAB, is handicapped in resolving this case because of the Defendants’ delay. Therefore, the problem of laches correlates, to some degree, with the Court’s finding that the TTAB’s decision is not supported by substantial evidence. It is for this reason, that the Court has determined to address it in the context of this case.
In its December 11, 2000, Memorandum Opinion, the Court set forth the test for laches that Pro-Football needed to meet in order to prevail:
“The doctrine of laches bars relief to those who delay the assertion of their claims for an unreasonable time. Lach-es is founded on the notion that equity aids the vigilant and not those who slumber on their rights.” NAACP v. NAACP Legal Defense & Educational Fund, Inc., 753 F.2d 131, 137 (D.C.Cir.1985). Typically, a laches defense arises in trademark matters when a party defends against a trademark infringement claim on the theory that the original trademark holder fumbled away its trademark rights through inattention. In such typical circumstances, the common law allows for a laches defense only if the defendant meets “three affirmative requirements: (1) a substantial delay by a plaintiff prior to filing suit; (2) a plaintiffs awareness that the disputed trademark was being infringed; and (3) a reliance interest resulting from the defendant’s continued development of good-will during this period of delay.” Id.
While the common law definition of lach-es does not cleanly apply in light of the procedural posture of this case, it can be easily modified: Pro-Football’s laches claim is only available under the com mon law if (1) the Native Americans delayed substantially before commencing their challenge to the “redskins” trademarks; (2) the Native Americans were aware of the trademarks during the period of delay; and (3) Pro-Football’s ongoing development of goodwill during the period of delay engendered a reliance interest in the preservation of the trademarks. Harjo III, 57 U.S.P.Q.2d at 1144, 2000 WL 1923326. Pro Football takes the position that the Court “must separately consider the equities of applying laches as to the two-year delay associated with the Redskins’ 1990 registration, the fourteen-year delay associated with the 1978 registration, the eighteen year delay associated with the 1974 registrations, and the twenty-five year delay associated with the 1967 registration.” Pl.’s Reply at 2. The Court agrees with Pro-Football’s assessment. Accordingly, for each of these time periods, the Court must determine if Pro-Football has met the three prong test articulated above. Pro-Football bears the burden of proving laches, because it is an affirmative defense. Bridgestone/Firestone Research, Inc. v. Automobile Club De L’Ouest De La France, 245 F.3d 1359, 1361 (Fed.Cir.2001).
Before turning to the three-prong analysis, the Court notes that it finds that laches is a defense available to Pro-Football. Defendants continue to argue that a laches defense is unavailable in the context of a section 2(a) petition for cancellation; particularly where a “public interest” is vindicated. Defs.’ Mot. at 34-36. The Court’s December 11, 2000, Memorandum Opinion found that laches was an available defense in section 2(a) proceedings, but like all equitable defenses, was contingent on the facts and circumstances of each case. See Harjo III, 57 U.S.P.Q.2d at 1145, 2000 WL 1923326 (“The Court agrees with Pro-Football that the Lanham Act does not expressly preclude laches claims raised in opposition to cancellation petitions like that brought by the Native Americans.”); see also id. (observing that the laches claim should be viewed in the context of each case once a factual record can be developed). The Defendants’ arguments do not give the Court pause to reconsider that decision. The Court concludes that on the basis of the unique facts of this case, which arise in the context of a cancellation proceeding, the laches defense applies. In other words, as is appropriate in all laches cases, the Court’s holding is specific to the facts and circumstances of this ease.
The case that Defendants rely on to argue that laches is inapplicable actually holds that a laches defense is applicable in the context of a section 2(a) petition. Bridgestone, 245 F.3d at 1363. The Defendants attempt to read the case, however, as stating that where a “public” interest is involved, laches is unavailable. Defs.’ Mot. at 35. The Court disagrees and finds that such an interpretation stretches the words of the Federal Circuit. In Bridgestone, the petitioner arguing for cancellation asserted that in a case of “false suggestion,” a public interest is involved, and, therefore, a laches defense is inapplicable. Bridgestone, 245 F.3d at 1363. The Federal Circuit remarked that false suggestion cases do not involve the public interest. Id. The Defendants infer from this statement that in cases where a “public” interest is involved, laches should never apply. The Bridgestone court, however, never stated that the laches defense is unavailable in cases involving the public interest. The court merely observed that a “false suggestion” claim did not implicate the public interest.
Defendants also point out that the Bridgestone court observed that in the context of section 2(d) likelihood of confusion cases, courts have permitted a “tardy challenge to a registered mark.” Id. (citing Ultra-White Co. v. Johnson Chem. Indus., Inc., 59 C.C.P.A. 1251, 465 F.2d 891, 893-94 (Cust. & Pat.App.1972); Chun King Corp. v. Genii Plant Line, Inc., 56 C.C.P.A. 740, 403 F.2d 274, 276 (Cust. & Pat.App.1968)). Reviewing these cases, the Court observes that in the likelihood of confusion context, the courts have been generous to tardy filings because of “the public interest expressed in § 1052” which “is the dominant consideration.” Ultra-White, 465 F.2d at 893-94. Section 2(d) of the Lanham Act states that a trademark should not be cancelled for likelihood of confusion unless the mark, “[c]onsists 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, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1052(d) (emphasis added). Given the strong public interest in avoiding deception or mistake, a court in balancing the equities is likely to be more chary before applying the laches defense in the likelihood of confusion case scenario. Indeed, even in a disparagement case, a court may be willing to invoke the public interest behind section 2(a) before applying it to the facts and circumstances of the case. However, the public interest is somewhat more narrowly defined in that context because it applies to a more narrow segment of the general population than in the likelihood of confusion cases.
The problem with Defendants’ argument is that it has no limit. Any public interest that seeks vindication under section 2(a) would not be subject to a laches defense. As discussed at the July 23, 2003 motions hearing:
THE COURT: So let me see if I understand it, if I can interrupt. Your view, then, is if you are asserting a public interest of this nature, basically it doesn’t matter when you bring it. So, if you know that back in 1967 it’s disparaging you could decide not to do anything about it and bring it whenever you choose. That’s the crux of your argument?
MR. LINDSAY: That is correct, Your Honor.
Tr. 7/23/2003 at 81. The Court cannot agree that the law permits such an unreasonable outcome. Pro-Football has enjoyed trademark protections since 1967. The Seventh Circuit in the Hot Wax case captured nicely the problem inherent in the defense counsel’s argument, when discussing why a laches claim should apply in Lanham Act cases even if the claim would be viable under the state statute of limitations:
In the context of the Lanham Act, this framework makes particularly good sense. The notion of a “continuing wrong,” which is so prevalent in Lanham Act cases, provides a strong justification for the application of the doctrine of laches in appropriate circumstances re.gardless of whether the plaintiff has brought suit within the analogous statute of limitations. Under the notion of a continuing wrong, “only the last infringing act need be within the statutory period.” Taylor v. Meirick, 712 F.2d 1112, 1118 (7th Cir.1983). Without the availability of the application of laches to a claim arising from a continuing wrong, a party could, theoretically, delay filing suit indefinitely. It would certainly be inequitable to reward this type of dilatory conduct and such conduct would necessarily warrant application of laches in appropriate circumstances. Thus, we conclude that whether a Lanham Act claim has been brought within the analogous state statute of limitations is not the sole indicator of whether laches may be applied in a particular case.
Hot Wax, 191 F.3d at 821-22. The notion that Pro-Football’s trademarks would be subject to attack at any point in time would seriously undermine the entire policy of seeking trademark protection in the first place. McCarthy, supra, § 2:3 (“Trademarks play a crucial role in our free market economic system. By identifying the source of goods or services, marks help consumers to identify their expected quality and, hence, assist in identifying goods and services that meet the individual consumer’s expectations.... [Tjrademark counterfeiting ... if freely permitted, ... would eventually destroy the incentive of trademark owners to make the investments in quality control, promotion and other activities necessary to establishing strong marks and brand names. It is this result that would have severe anticompeti-tive consequences.”) (quoting William F. Baxter, Statement before the Senate Committee on the Judiciary concerning S. 2428 (a bill to strengthen the laws against counterfeiting of federally registered trademarks), Sept. 15, 1982). This result is particularly true given the fact that the Defendants claim that the marks have been disparaging during this entire time frame and readily admit that they have been aware of the trademarks during this entire time frame.
For all of these reasons the Court finds that a laches defense is appropriate in a disparagement case. However, as with all equitable defenses, the Court concludes that the defense is subject to the particular facts and circumstances of each case.
The Court now turns to the merits of Pro-Football’s laches argument. The Court articulated a general three-prong test for laches in the context of a trademark proceeding that the Court of Appeals for the District of Columbia Circuit articulated in the NAACP case. Essentially, to demonstrate laches Pro-Football must show that Defendants’ delay in bringing the cancellation proceeding was unreasonable, and that prejudice to Pro-Football resulted from the delay. Bridgestone, 245 F.3d at 1361; Hot Wax, 191 F.3d at 820. This test is not materially different from the standard articulated in NAACP. The first two steps of the NAACP test, substantial delay and notice, form the unreasonable delay prong of the Bridgestone case. Finally, the third step of the NAACP test, development of goodwill during the period of delay, is the prejudice element in the Bridgestone case. As the Bridgestone court observed, “[ejconomic prejudice arises from investment in and development of the trademark.” Id. at 1363.
The Court finds that the Defendants substantially delayed - in bringing their challenge to the marks. In the case of the first trademark, Defendants waited over twenty-five years to bring this case. Defendants “do not dispute that they have long known about and objected to the name of the Washington football franchise.” Defs.’ Opp’n at 23. This length of time is greater than other cases where courts have applied a laches doctrine. NAACP, 753 F.2d at 138 (determining that thirteen-year delay was unreasonable and that claim was barred by laches); Dakota Indus., Inc. v. Dayton Hudson Corp., 37 Fed.Appx. 846, 846-47 (8th Cir.2002) (finding that a ten-year delay barred claim). In this case, the Washington Redskins have been using their name since 1937 and have had their name trademarked since 1967.
The Court finds that for all six trademarks the delay in bringing the cancellation proceeding was substantial. The marks were registered in 1967, 1974, 1978, and 1990. In the case of the trademarks registered in 1967,1974, an 1978, the delay was substantial on its face. However, given the context of this case, the Court concludes the delay for all the trademarks was substantial. The Defendants had notice of the marks when the marks were published for comment and when the marks were published for registration.
While the two-year delay for the “REDSKINETTES” mark may seem not particularly lengthy on its face, the Court has explained that the context of this case is different from many other trademark cases. In addition, the Washington Redskins cheerleaders have been using the term “REDSKINETTES” since 1962. Therefore, this is not a case where the mark was introduced in 1990; rather, it had been in use for approximately thirty years at the point the Defendants brought their cancellation proceeding. Moreover, the two-year delay does not exist in a vacuum. There are five other trademarks being challenged, all of which contain the term “Redskins.” In fact, the TTAB concluded that “[w]hile petitioners have framed their allegations broadly to include in their claim of disparagement all matter in the subject marks that refers to Native Americans, their arguments and extensive evidence pertain almost entirely to the ‘Redskins’ portion of respondent’s marks.” Harjo II, 50 U.S.P.Q.2d at 1743, 1999 WL 375907. The very first trademark at issue is “The Redskins,” and this mark was first registered in 1967. Accordingly, the Court finds that the delay in bringing the instant cancellation proceeding for all of the marks, including the “REDSKINETTES” mark, first registered in 1990, was substantial. This delay, with no action on the part of the Defendants to challenge the trademarks in a legal proceeding has engendered a presumption that Pro-Football reasonably relied on such inaction. NAACP, 753 F.2d at 139 (“The passing of almost thirteen years without any clear reservation of rights by the Association creates a presumption of reasonable reliance.”).
The Court determines that Defendants had twelve separate occasions of constructive notice when the six marks were each published and registered. Publication of the marks in the Official Gazette constitutes constructive notice of the applications at issue. National Cable Television Ass’n, Inc. v. American Cinema Editors, Inc., 937 F.2d 1572, 1581 (Fed.Cir.1991) (“Logically, laches begins to run from the time action could be taken against the acquisition by another of a set of rights to which objection is later made. In an opposition or cancellation proceeding the objection is to the rights which flow from registration of the mark.”); see also 15 U.S.C. § 1072 (Lanham Act provides that registration on the Principle Register “shall be constructive notice of the registrant’s claim of ownership”). The TTAB has expanded the Federal Circuit’s view to state that laches in the context of a cancellation proceeding begins to run at the date the trademarks are published. Turner v. Hops Grill & Bar, Inc., 52 U.S.P.Q.2d 1310, 1312-13 & n. 3, 1999 WL 959435 (Trademark Tr. & App. Bd.1999) (“laches starts to run when the mark in question is published for opposition”). In this ease, therefore, laches began to run from the point the first trademark was published in 1967. In all, therefore, the six marks provided twelve separate constructive notifications.
Defendants contend that because they are not a competing claimant to a trademark, they should not be charged with constructive notice. Defs.’ Opp’n at 24 (“Unlike a holder of a private and competing trademark, they had no reason to become personally conversant in the details of trademark law and could neither afford nor had the incentive to retain counsel to monitor the publication of trademarks on their behalf.”). Contrary to Defendants’ argument, the Supreme Court has held that a “party’s poverty or pecuniary embarrassment was not a sufficient excuse for postponing the assertion of his rights.” Leggett v. Standard Oil Co., 149 U.S. 287, 294, 13 S.Ct. 902, 37 L.Ed. 737 (1893). Additionally, ignorance of one’s legal rights is not a reasonable excuse in a laches case. See, e.g., Jones v. United States, 6 Cl.Ct. 531, 532-33 (Cl.Ct.1984) (“Where laches is raised, knowledge of the law is imputed to all plaintiffs. Consequently, professed ignorance of one’s legal rights does not justify delay in filing suit.”).
Defendants seek to strip Pro-Football, a business, of the protections of federal trademark law. As the Court observed of Defendants at the July 23, 2003, motions hearing, “all of them are well educated, some are attorneys.” Tr. 7/23/2003 at 77. As Defendants note, laches is an “equitable doctrine.” Defs.’ Opp’n at 23 (emphasis in original). Given that Defendants are sophisticated individuals who are seeking to strip a corporation of the protections of federal law for its trademarks, the Court is not open to Defendants’ argument that because they just learned of their legal rights under section 2(a), that the Court should not follow the constructive notice requirements. If Defendants use of federal trademark laws would cause the same type of damage as a competitor’s actions would, then Defendants should be held to the same standards; particularly when they claim that they have been on notice about the disparaging nature of these trademarks since 1967.
The Court finds that Defendants were also aware of the trademarks during the period of delay and therefore also had actual notice. Defendants state in their opposition that they “do not dispute that they have long known about and objected to the name of the Washington football franchise.” Defs.’ Opp’n at 23. Moreover, as discussed earlier, Defendants have known about the Washington Redskins football franchise for many years. Accordingly, the Court finds that Defendants were aware of the trademarks during the period of delay under a theory of actual or constructive notice.
Based on the substantial delay, the fact that Defendants were on notice of the marks, and the fact that Defendants have no reasonable excuse for their delay in taking action, the Court concludes that Defendants’ delay was undue. Bridgestone, 245 F.3d at 1361 (“To prevail on its affirmative defense, Bridgestone was required to establish that there was undue or unreasonable delay... .”). As the Bridgestone court stated: “constructive notice, widespread commercial use (knowledge of which is not denied by the Automobile Club), and the passing of twenty-seven years after registration, accompanied by the absence of a reasonable excuse by the Automobile Club for its inaction, require that the Automobile Club be charged with undue delay in seeking cancellation of Bridgestone’s trademark registration.” Id. at 1362. The Court finds that constructive and actual notice on the part of Defendants, widespread use of Pro-Football’s trademarks, and the over twenty-five years that have passed since first notice of the mark, accompanied by an insufficient excuse from Defendants for their delay, requires this Court to find undue delay on the part of Defendants.
The Court finds that Defendants’ delay in bringing the cancellation proceeding prejudices Pro-Football. Defendants argue that the final prong of the test set forth in NAACP is not applicable to the facts of this case because “the Court must look not only to the existence of a reliance interest, but to whether the defendant will be prejudiced if the plaintiff prevails.” Defs.’ Opp’n at 26 (citing Bridgestone, 245 F.3d at 1362). Pro-Football contends, to the contrary, that it “need not prove that it will suffer some negative consequence if the cancellations are sustained.” Pis.’ Reply at 13 (capitalization altered).
There is no question that in order to prove a laches defense, some form of prejudice must be shown. “Mere delay in asserting a trademark-related right does not necessarily result in changed conditions sufficient to support the defense of laches. There must also have been some detriment due to the delay.” Bridgestone, 245 F.3d at 1362. The Court reads NAACP to suggest this proposition because the case that the NAACP relied on to set forth the laches defense, Saratoga Vichy Spring Co., Inc. v. Lehman, 625 F.2d 1037 (2d Cir.1980), held that a “[d]e-fendant’s proof in its laches defense must show that plaintiff had knowledge of defendant’s use of its marks, that plaintiff inexcusably delayed in taking action with respect thereto, and that defendant will be prejudiced by permitting plaintiff inequitably to assert its rights at this time.” Id. at 1040 (internal quotation marks and citations omitted) (emphasis added); see also McCarthy, supra, § 31:12 (“The cases are legion to the effect that mere delay, without resulting injury to defendant, is not sufficient to prevent relief for infringement.”). The key question, however, is what is required in demonstrating injury or prejudice.
In Bridgestone, the Federal Circuit described the prejudice element as “preju dice at trial due to loss of evidence or memory of witnesses, and economic prejudice based on loss of time or money or foregone opportunity.” Bridgestone, 245 F.3d at 1362. With regard to the question of economic prejudice, the Federal Circuit observed that in trademark cases, unlike patent cases, in order to prove lach-es a defendant does not need to demonstrate with specific evidence that it relied on the plaintiffs silence. Id. at 1363; see also McCarthy, supra, § 31:13 (“However, the Federal Circuit, citing its own patent precedent, has held that a laches defense in a trademark case can be proven even in the absence of evidence that the registrant actually knew of the potential petitioner and relied to its detriment on that party’s failure to challenge the registration or use over a long period of time.”) (citing Bridgestone). Instead, as long as a defendant has demonstrated a plaintiffs undue delay, “economic prejudice to the defendant may ensue whether or not the plaintiff overtly lulled the defendant into believing that the plaintiff would not act, or whether or not the defendant believed that the plaintiff would have grounds for action.” Bridgestone, 245 F.3d at 1363.
Therefore, the test for economic prejudice in a trademark case is the following:
Economic prejudice arises from investment in and development of the trademark, and the continued commercial use and economic promotion of a mark over a prolonged period adds weight to the evidence of prejudice. See Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 821 (7th Cir.1999) (the longer the use and the lengthier the period of delay, the lighter the burden of showing economic prejudice in support of the defense of laches).
Id. at 1363. In other words, prejudice is equated with investment in the trademark that theoretically could have been diverted elsewhere had the suit been brought sooner. Hot Wax, 191 F.3d at 824 (“Had Hot Wax successfully pressed its claims in a timely manner, Turtle Wax certainly could have invested its time and money in other areas or simply renamed its products.”). Moreover, where the length of time is great in bringing the claim, “prejudice is more likely to have occurred and less proof of prejudice will be required.” Hot Wax, 191 F.3d at 824 (internal quotation marks and citation omitted); NAACP, 753 F.2d at 139 (lengthy passage of time supports presumption of reliance).
There is no dispute that in this case Pro-Football has invested heavily in the marketing and development of its brand during the period of delay. Defs.’ Opp’n at 31 (“The Native American Parties acknowledge ... Pro-Football and NFLP’s advertising expenditures since 1967, the revenue earned from merchandise bearing the Marks, and their considerable revenue from tickets and TV contracts.”) In the instant case, because the delay in bringing the cancellation proceeding was so substantial, a presumption is created that Pro-Football was entitled to rely on the security of the trademarks at issue. In 1967, the NFL was still a nascent industry. Had this suit been brought at that point, Pro-Football may have acquiesced and changed the name. The twenty-five year delay, where Pro-Football has invested so heavily in the marks, has clearly resulted in economic prejudice.
It is no answer for Defendants to argue that “because cancellation of the registrations does not prohibit Pro Football from using or enforcing the Marks, and the Native American Parties are not seeking to establish control or ownership of the Marks, there is no basis to conclude that Pro Football’s past investment or future revenues from the Marks will be jeopardized.” Defs.’ Opp’n at 31. Defendants’ contention would never permit a laches defense in a cancellation proceeding. While Pro-Football’s expert points out that it is rare that there will necessarily be a loss of goodwill in the brand name due to a cancellation proceeding because the corporation that has invested so heavily in the mark will likely continue to use it, Pl.’s Opp’n, Ex. 13, Gilson Tr. at 179, 181, past investment in the mark will be jeopardized by uncertainty surrounding the brand name. Therefore, an economic cost exists when a trademark is cancelled that adversely affects prior investment in the brand. See Snyder Dep. at 174-75, 190-92, 195-96. Indeed, in addition to caselaw, common sense dictates that Pro-Football will suffer some economic hardship. Otherwise, there would be no point to this litigation being used as a vehicle to force Pro-Football to change the name of the team.
For the foregoing reasons, the Court concludes that based on the undisputed material facts, Pro-Football is entitled to summary judgment on its laches claim. There is no dispute that the record demonstrates both undue delay and economic prejudice. The Court does not adopt Defendants’ argument that laches does not apply because of the unique circumstances of this case. Their contention on this score is without reasonable boundaries. Aceordingly, laches bars the Defendants’ cancellation petition.
The Court’s decision today only focuses on the evidence supporting the TTAB’s decision and Defendants’ delay in bringing this proceeding. This opinion should not be read as a making any statement on the appropriateness of Native American imagery for team names. The Board premised its disparagement conclusion on a paucity of actual findings of fact that were linked together through inferential arguments that had no basis in the record. Contrary to the TTAB’s ruling, this Court finds that Defendants did not carry their burden of proof in the TTAB proceeding. The evi-dentiary findings of the TTAB did not rise to the level of “substantial evidence” to support their ultimate conclusion that the six trademarks at issue were disparaging to a substantial composite of Native Americans.
The legal question before the TTAB was whether the six trademarks, when used in connection with Pro-Football’s entertainment services, “may disparage” a substantial composite of Native Americans at the time the marks were registered starting in 1967. The findings do not come close to shedding any light on the legal inquiry. There is no evidence in the record that addresses whether the use of the term “redskin(s)” in the context of a football team and related entertainment services would be viewed by a substantial composite of Native Americans, in the relevant time frame, as disparaging. In addition, none of the TTAB’s findings related to the linguists’ expert testimony help explain whether the term redskins, when used in connection with the “Washington Redskins” football team, disparaged Native Americans during the relevant time frame.
The only other findings of fact that the TTAB made involved the Ross survey. The TTAB found that the survey methodology was sound, that the survey was nothing more than a survey of attitudes as of the time the poll was conducted in 1996, and that the survey adequately represents the views of the two populations sampled. This survey, aside from its extrapolation flaws, says nothing about whether the term “redskin(s)” when used in connection with Pro-Football’s football team disparages Native Americans. Furthermore, the survey provides no information about the relevant time periods. The survey is completely irrelevant to the analysis.
Besides making findings of fact that did not address the legal conclusion, the TTAB did not hear live testimony; instead the TTAB predicated its decision on a cold factual record. With the reasoning laid entirely out in front of it, the TTAB rarely credited one side’s evidence at the expense of another or provided an explanation as to why it accepted the evidence or the weight it gave the evidence. In this case, the TTAB could have easily articulated its reasoning based on the substance of the record before it. Ultimately, the evidence in the case does not answer the legal question of whether the trademarks, in the context of their use during the relevant time frames, may have disparaged Native Americans. The evidence chips away at the sides of this legal question but never helps answer it directly.
This is undoubtedly a “test case” that seeks to use federal trademark litigation to obtain social goals. The problem, however, with this case is evidentiary. The Lan-ham Act has been on the books for many years and was in effect in 1967 when the trademarks were registered. By waiting so long to exercise their rights, Defendants make it difficult for any fact-finder to affirmatively state that in 1967 the trademarks were disparaging.
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. Accordingly, the Court grants summary judgment for Plaintiffs on their First, Second, and Fifth Causes of Action. The Court denies summary judgment to Defendants on these Causes of Action. As the Court has no need to reach the constitutional claims raised by Pro-Football, these claims are rendered moot.