What evidence should the Trademark Trial and Appeal Board (TTAB) take into account when it determines whether marks such as the “Washington Redskins” and “The Redskins,” at the time they were registered, disparaged Native Americans? How is disparagement measured — by the American public, by all Native Americans, or by some other variable? What about marks such as the “Atlanta Braves” or “Florida State Seminoles”? Does it matter whether a Native American tribe gave its permission to use the name? How should companies and the law balance cultural sensibilities and rights of free speech?
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