Full opinion text
MEMORANDUM OPINION KOLLAR-KOTELLY, District Judge. TABLE OF CONTENTS I. INTRODUCTION.99 II. FACTUAL BACKGROUND .99 A. Procedural History.99 B. The Present Motions .101 C. Factual Background.102 1. Local Rule 56.1.108 2. The Washington Redskins and this Litigation .104 a. The Origins of the Trademarks at Issue.104 b. The Challenged Trademarks.105 3. The TTAB’s Findings of Fact.107 a. The Expert Linguist Testimony.107 b. The Survey Evidence.109 4. Facts Relating to Pro-Football’s Laches Defense .112 III. LEGAL STANDARD DISTRICT COURTS USE IN RESOLVING MOTIONS FOR SUMMARY JUDGMENT UNDER RULE 56.112 IV. DISCUSSION.113 A. The Evidence Below is Insufficient to Conclude that During the Relevant Time Periods the Trademarks at Issue Disparaged Native Americans or Brought Them Into Contempt or Disrepute .113 1. Standard of Review.114 2. The TTAB’s Disparagement Conclusion is a Question of Fact.116 3. The TTAB’s Findings of Fact.119 a. TTAB’s Findings of Fact Regarding Linguists’ Testimony .119 b. TTAB’s Findings Regarding Dr. Ross’s Survey.119 4. The TTAB’s Legal Analysis.121 a. The Burden of Proof at the TTAB Level.122 b. The Meaning of “May Disparage”.124 5. The TTAB’s Finding of Disparagement.125 a. Meaning of the Matter In Question.126 b. Whether the Matter in Question May Disparage Native Americans .127 (1) Equating the Views of the General Public with Those of Native Americans.128 (2) The Derogatory Nature of the Word “redskin(s)”.129 (3) The Word “redskin(s)” as a Term of Disparagement .133 B. Pro Football’s Defense of Laches Bars Defendants’ Challenge.136 1. Laches as an Available Defense.137 2. Substantial Delay .139 3. Notice.140 4. Prejudice.142 V. SUMMARY OF ANALYSIS.144 VI.CONCLUSION 145 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, 1999 WL 375907 (Trademark Tr. & App. Bd.1999) (“Harjo IF). 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, 1994 WL 262249 (Trademark Tr. & App. Bd.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, 1994 WL 262249. 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, 1994 WL 262249. 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, 1999 WL 375907. 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, 2000 WL 1923326- (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, 2000 WL 1923326; see also id. at 1144, 2000 WL 1923326 (“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 nonconsti-tutional claims.”). The Court also denied without prejudice Defendants’ motion on Pro-Football’s lach-es claim. Id. at 1145-46, 2000 WL 1923826. 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, 2000 WL 1923326. 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, 2000 WL 1923326, the Court refused to dismiss Pro-Football’s laches argument until the factual record could be further developed. Id. at 1145—46, 2000 WL 1923326. 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. 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 dispos-itive 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. 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. 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. 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. 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. Around this time, i.e. the 1930’s, the Redskins began to use the marks: and “REDSKINS” in commerce. Id. ¶ 6 (observing that these marks were later registered as Registration Nos. 836,122 and 1,085,092 respectively). 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: 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. 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 72/485,127 for the trademark, application serial number 72/435,243 for the “WASHINGTON REDSKINS” trademark, and application serial number 72/435,244 for the 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. 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, 1999 WL 375907. On February 12, 1994, the PTO renewed the second of these three trademarks for ten years. Id. at 1707 n. 3, 1999 WL 375907. On June 25, 1994, the PTO renewed the third of these three trademarks for ten years. Id. at 1708 n. 8, 1999 WL 375907. 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. 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, 1999 WL 375907. On October 4, 1989, the Redskins filed application serial number 78/829,272 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. 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, 1999 WL 375907, and (2) survey evidence, id. at 1734, 1999 WL 375907. 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, 1999 WL 375907 (“[EJxcept 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. 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, 1999 WL 375907. 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, 1999 WL 375907. 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, 1999 WL 375907. 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, 1999 WL 375907. 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, 1999 WL 375907. 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, 1999 WL 375907. 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, 1999 WL 375907. 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, 1999 WL 375907. 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; • the age requirements for the survey included participants who could not reflect the state of mind of people in 1967; and • there was a less than 50% response rate to the survey, which rendered it a very weak probability survey. Id. at 1733-34,1999 WL 375907. In addition, Dr. Jacoby concluded that “you cannot project, as Dr. Ross says, to the Native American population as a whole for several very important reasons.” Pl.’s Mot., Ex. 185, Jacoby Tr. at 21-25. First, the Ross Survey excluded those Native Americans living in thirty-six of the forty-eight contiguous states. Pl.’s Stmt. ¶ 96. Second, the survey excluded large numbers of Native Americans living in Alaska and Hawaii. Id. ¶ 97. Third, the Ross Survey included counties in only twelve states, the net result being that the Ross Survey represented only two percent of all U.S. counties. Id. ¶¶ 98, 100. Finally, with regard to the tabulation of the results, Dr. Jacoby observed that certain responses were incorrectly tabulated as positive responses. In particular, these incorrectly tabulated results included those responses where the participant stated that his/her response was dependent on the context in which the word was used and those responses indicating that others may be offended. Harjo II, 50 U.S.P.Q.2d at 1734, 1999 WL 375907. These critiques of the Ross survey led Dr. Jacoby to conclude that the survey was completely unscientific. Id. In addition, Dr. Jacoby found the survey flawed because it sought the current views of its participants rather than their perceptions during the relevant time period. Id. Finally, Dr. Jacoby observed that the survey was a failure because it did not ascertain the perceptions of those questioned on the use of the word “redskin(s)” in the context of Pro-Football’s entertainment services. Id. After detailing the evidence on the surveys, the Board ignored Dr. Jacoby’s detailed criticisms and made basically three findings of fact regarding this survey evidence: 1. “After careful consideration of Dr. Ross’ testimony, the survey report and the substantial survey data in the record, we find ample support for the viability of the survey methodology used, including the sampling plan, the principal questions asked, and the manner in which the survey was conducted.” Id. 2. “We find no error in including adults aged 16 and above in the survey, even though the younger participants were not alive, or not adults, at the time of registration of several of respondent’s marks herein. Dr. Ross does not represent this survey as anything other than a survey of current attitudes as of the time the survey was conducted.” Id. 3. “In this regard, we find that the survey adequately represents the views of the two populations sampled. While certainly far from dis-positive of the question before us in this case, it is relevant and we have accorded some probative value to this survey, as discussed in our legal analysis ....” Id. The Board indicated, however, that the Ross survey was “not without flaws.” Id. In particular, the Board did not accord any weight to the survey results pertaining to the participants’ conjecture about the views of others. Id. The TTAB also observed that “a survey of attitudes as of the dates of registration of the challenged registrations would have been extremely relevant in this case.” Id. (emphasis added). Additionally, the Board noted that “a survey that considered participants’ views of the word ‘redskin(s)’ as used by respondent, the media and fans in connection with respondent’s football team would have been extremely relevant.” Id. (emphasis added). 4. Facts Relating to Pro-Football’s Laches Defense It is not disputed that Defendants were aware of the Washington Redskins team name and the name of the cheerleaders during the relevant time period. Defendant Suzan Shown Harjo, who as born in 1945, admits to being aware of the Washington Redskins team name since she was a child. Pl.’s Stmt. ¶ 17. Defendant Vine Deloria admits that he first knew of the Washington Redskins during World War II. Id. ¶ 18. Defendant Norbert Hill testifies in his deposition that he has known of the Washington Redskins since his childhood in the 1950’s and 1960’s. Id. ¶ 19. Defendant Manley Begay testifies in his deposition that he was born August 10, 1954, and became aware of the Washington Redskins at a “very young” age. Id. ¶ 20. Defendant William A. Means has watched Redskins games and cheerleaders on television at least ten times. Id. ¶ 52. Defendant Raymond D. Apodaca has watched football, including Redskins games, since it was televised. Id. ¶ 57. Mr. Romero, born in 1966, saw Redskins games on television as a child as well as the Redski-nettes cheerleaders. Id. ¶ 61. It is also undisputed that Defendants did not file their petition to cancel the registrations of the trademarks until September 10, 1992. In addition, it is also undisputed that during the period of delay, Pro-Football and NFL Properties invested in the trademarks and had increasing revenues during this time frame. See, e.g., id. ¶¶ 68, 70, 72-81. III. LEGAL STANDARD DISTRICT COURTS USE IN RESOLVING MOTIONS FOR SUMMARY JUDGMENT UNDER RULE 56 A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The adverse party’s pleadings must evince the existence of a genuine issue of material fact. Id. at 247-48, 106 S.Ct. 2505. To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficiently admissible evidence such that a reasonable trier-of-fact could find for the nonmoving party. Id.; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C.Cir.1987). Mere allegations or denials in the adverse party’s pleadings are insufficient to defeat an otherwise proper motion for summary judgment. Rather, the nonmoving party bears the affirmative duty to present, by affidavits or other means, specific facts showing that there is a genuine issue for trial. Id. at 1248-49. The adverse party must do more than simply “show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In the case of a laches claim, a district court enjoys “considerable discretion in determining whether to apply the doctrine of laches to claims pending before it.” Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 819 (7th Cir.1999). As a result, appellate courts, even on summary judgment motions review a district court’s laches finding under an abuse of discretion standard in cases where no material facts are disputed. Id. (“Therefore, while our review of the record is de novo, in determining whether there are any disputed issues of material fact, our review of whether the district court properly applied the doctrine of laches is under an abuse of discretion standard.”). The Court of Appeals for the District of Columbia Circuit states, however, that “[a] district court’s ruling on lach-es does not qualify for deference if the court applied the wrong legal standard.” Daingerfield Island Protective Soc. v. Lujan, 920 F.2d 32, 38 (D.C.Cir.1990). Nevertheless, as the Fifth Circuit succinctly observes, “as long as the district court applies the correct legal standard on summary judgment and does not resolve disputed issues of material fact against the nonmovant, its determination of whether the undisputed facts warrant an application of laches is reviewed for abuse of discretion.” National Ass’n of Gov’t Employees v. City Public Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 707 (5th Cir.1994). IV. DISCUSSION The Court first turns to the question of whether the TTAB appropriately concluded that the marks at issue disparage Native Americans or cause them to be brought into contempt or disrepute. The Court next turns to Pro-Football’s claim of laches. A. The Evidence Below is Insufficient to Conclude that During the Relevant Time Periods the Trademarks at Issue Disparaged Native Americans or Brought Them Into Contempt or Disrepute Essentially, this appeal presents the question of whether the TTAB’s decision that the registered marks “may disparage” Native Americans was supported by “substantial evidence.” Under the section 2(a) of the Lanham Act: No trade-mark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it- (a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.... 15 U.S.C. § 1052(a). In reaching its decision, the TTAB concluded that the registrations at issue did not comprise “scandalous matter.” Harjo II, 50 U.S.P.Q.2d at 1748-19, 1999 WL 375907. That decision has not been appealed and is not before this Court. The TTAB also conflated the “contempt or disrepute” inquiry with the “disparage” inquiry. Id. at 1740, 1999 WL 375907. In other words, the TTAB concluded that “the guidelines enunciated [in its opinion], in connection with determining whether matter in a mark may be disparaging are equally applicable to determining whether such matter brings ‘persons, living or dead, institutions, beliefs, or national symbols into contempt or disrepute.’ ” Id. (quoting 15 U.S.C. § 1052(a)). None of the parties argue that the TTAB’s decision to treat “disparage” in the same manner as “contempt or disrepute” was error. Therefore, the Court has not reviewed this legal determination and in assessing the TTAB’s decision, only reviews whether the marks at issue “may disparage” Native Americans, which includes whether the marks bring Native Americans into contempt or disrepute. Pursuant to section 14 of the Lanham Act “any person who believes that he is or will be damaged by the registration of a mark” may file a petition to cancel a registration “[wjithin five years from the date of the registration of the mark,” or “[a]t any time ... if its registration was obtained fraudulently or contrary to the provisions of ... subsection (a), (b), or (c) of section 1052 of this title .... ” 15 U.S.C. § 1064. Section 21 of the Lanham Act entitles persons authorized to appeal to bring either a civil action in a federal district court or a direct appeal if they are dissatisfied with the decision rendered by the TTAB in a cancellation proceeding. 15 U.S.C. § 1071. By undertaking a civil action, as opposed to a direct appeal to the Federal Circuit, the parties acknowledge that “[t]he testimony and exhibits of the record in the Patent and Trademark Office, when admitted, shall have the same effect as if originally taken and produced in the suit.” Id. § 1071(b). Moreover, this Court is not precluded from adducing further factual development of the record. Id. 1. Standard of Review After reviewing the arguments of the parties, particularly those of Defendants who advocate that the Court adopt a “clearly erroneous/thorough conviction” standard of review, Tr. 7/23/2003 at 56, the Court determines that its review of the TTAB’s findings shall be commensurate with the “substantial evidence” standard of review articulated in the APA. In other words, the Court will reverse the TTAB’s findings of fact only if they are “unsupported by substantial evidence.” 5 U.S.C. § 706. The United States Supreme Court recently held that in the context of a review of a decision of the PTO in the Federal Circuit, the Federal Circuit was to apply the standard of review articulated in the APA. Dickinson v. Zurko, 527 U.S. 150, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (reversing en banc decision of the Federal Circuit which held that “clearly erroneous” was the appropriate standard of review). Although the Supreme Court in Zurko left open which of the APA’s review standards were appropriate, the Federal Circuit has since concluded that the APA’s “substantial evidence” test is the appropriate review standard for findings of fact of the agency. In re Gartside, 203 F.3d 1305, 1315 (Fed.Cir.2000). In addition, the Federal Circuit has concluded that despite the fact that Zurko involved the Federal Circuit’s review of a decision of the PTO, the Supreme Court’s holding is applicable to findings of fact made by the TTAB. Recot, Inc. v. Becton, 214 F.3d 1322 (Fed.Cir.2000); see also On-Line Careline Inc. v. America Online, Inc., 229 F.3d 1080, 1085 (Fed.Cir.2000) (“Nothing in these statutes suggests that the TTAB should receive any less deference on factfinding than the BPAL”). As a result of the fact that Zurko only applied to the review of the PTO by the Federal Circuit, courts have been somewhat divided on the question of whether a district court uses the APA “substantial evidence” standard of review for the TTAB’s fact-finding. Nevertheless, in the Court’s judgment, the better authority holds that district courts should also use the substantial evidence standard from the APA. See Mazzari v. Rogan, 323 F.3d 1000, 1005 (Fed.Cir.2003) (“Therefore, a reviewing court, whether this court or the district court, applies the ‘substantial evidence’ standard of review to findings of fact made by the board.”) (emphasis added); CAE, Inc. v. Clean Air Engineering, Inc, 267 F.3d 660, 675 n. 9 (7th Cir.2001) (“Furthermore, whether the aggrieved party elects direct review by the Federal Circuit or initiates a new action in the district court, both courts should apply the APA standard of review to the TTAB’s fact-finding.”); but see U.S. Filter Corp. v. Ionics, Inc., 68 F.Supp.2d 48, 52 (D.Mass.1999) (“I do not accept defendant’s argument that Zurko has changed the standard of review that this court must apply in reviewing the PTO’s finding of a valid patent.”). The substantial evidence standard requires the reviewing court to ask whether a “reasonable mind might accept” a particular evidentiary record as “adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938); Zurko, 527 U.S. at 162, 119 S.Ct. 1816. Considered to be less deferential than the “arbitrary, capricious” standard, see Gartside, 203 F.3d at 1312, the “substantial evidence” standard requires a stricter judicial review of agency fact-finding than the “arbitrary, capricious” approach. On-Line Careline, 229 F.3d at 1085-86; see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (“The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.”); Zurko, 527 U.S. at 162, 119 S.Ct. 1816 (observing that the Supreme Court has “stressed the importance of not simply rubber-stamping agency fact-finding”) (citing Universal Camera, 340 U.S. at 490, 71 S.Ct. 456). The Supreme Court has stated that “[s]ub-stantial evidence is more than a mere scintilla.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206; id. at 230, 59 S.Ct. 206 (finding that “[m]ere uncorroborated hearsay or rumor does not constitute substantial evidence”). A review for substantial evidence “involves examination of the record as a whole, taking into account evidence that both justifies and detracts from an agency’s decision.” Gartside, 203 F.3d at 1312 (citing Universal Camera, 340 U.S. at 487-88, 71 S.Ct. 456). 2. The TTAB’s Disparagement Conclusion is a Question of Fact The Court concludes that the ultimate question of whether the six trademarks at issue “may disparage” Native Americans is a question of fact. Accordingly, Pro-Football bears a burden of submitting evidence or argument that the TTAB’s decision on disparagement was not supported by substantial evidence. However, with regard to the legal standards applied in the proceeding below, the Court reviews the TTAB’s conclusions on these issues de novo. As discussed supra, the TTAB’s findings of fact are reviewed under the substantial evidence test. However, while the Court is unable to find any helpful precedent on point, it would appear that, by analogy, there is a dispute in authority as to whether the “ultimate” question about whether a trademark “may disparage” would be treated as one of fact or one of law. The parties have not directly addressed this question in their papers. The Federal Circuit has held that the question of whether a trademark is scandalous under section 2(a) of the Lanham Act is treated as a question of law. In re Mavety Media Group Ltd., 33 F.3d 1367, 1371 (Fed.Cir.1994) (“The determination that a mark comprises scandalous matter is a conclusion of law based upon underlying factual inquiries.... Therefore, while we review the Board’s underlying fact findings for clear error, we review de novo the Board’s ultimate legal conclusion of scandalousness.”). In making this decision, the Federal Circuit analogized to cases involving “likelihood of confusion” scenarios. The Court’s research reveals, however, that the courts of appeals are split over whether, in the context of “likelihood of confusion” cases, the “ultimate” question as to whether the trademarks are similar is one of fact or of law. Compare Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1428 (7th Cir.1985) (“the question of likelihood of confusion is all fact and no law”), with Jet, Inc. v. Sewage Aeration Sys., 165 F.3d 419, 422 (6th Cir.1999) (“Likelihood of confusion is a mixed question of fact and law. After a bench trial, we review a trial court’s underlying factual findings for clear error but review de novo whether these facts indicate a likelihood of confusion.”) (internal citation omitted). The majority view, that the question is a pure question of fact, is considered to be “the better view.” Restatement (Third) of Unfair Competition § 21 cmt. m (1995). The Court agrees with the majority view. Whether the six trademarks disparage Native Americans is ultimately a fact-bound conclusion that rests with the fact-finder in the first instance. For example, had this been an original proceeding in this Court, the Court would have referred the question of whether the trademarks were disparaging to a jury. The issue of disparagement, like the issue of likelihood of confusion, requires a fact-based judgment that depends heavily on the particular circumstances of each case. The Third Circuit compellingly explained why a court should defer to a trial court’s findings of fact in a likelihood of confusion case, which, by analogy, accurately reflects the situation that the Court currently faces: At the threshold we must determine the standard of appellate review applicable to a trial court’s findings as to likelihood of confusion or lack thereof. This is an issue over which the courts of appeals have disagreed in the past. See Elby’s Big Boy of Steubenville, Inc. v. Frisch’s Restaurants, Inc., 459 U.S. 916, 103 S.Ct. 231, 74 L.Ed.2d 182 (1982) (White, J., dissenting from denial of certiorari). Some courts have reviewed findings concerning likelihood of confusion under the “clearly erroneous” standard applicable to questions of fact, see, e.g., Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366, 377 (1st Cir.1980), while other courts, characterizing likelihood of confusion as a question of law, have engaged in de novo review of such findings, see, e.g., Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F.2d 433, 435 n. 2 (2d Cir.1974). To the extent that the latter approach rests on the perception that appellate courts are in as good a position as trial courts to evaluate evidence of likelihood of confusion, the validity of this approach has been largely undermined by the 1985 amendment to Federal Rule of Civil Procedure 52(a). See Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1427-29 (7th Cir.1985), cert. denied, 475 U.S. 1147, 106 S.Ct. 1801, 90 L.Ed.2d 346 (1986). This amendment made clear that a district court’s conclusions cannot be regarded as pertaining to a “question of law”-and thus reviewed de novo-merely because they are based on evidence that is theoretically susceptible of independent evaluation by an appellate court. Rule 52(a) now requires appellate courts to apply the clearly erroneous standard to all findings of fact, “whether based on oral or documentary evidence.” American Home Products Corp. v. Barr Laboratories, Inc., 834 F.2d 368, 370 (3d Cir.1987). The Court finds the Third Circuit’s reasoning persuasive. Accordingly, the Court reviews the “ultimate” question of whether the trademarks at issue “may disparage” Native Americans under the substantial evidence test. Defendants correctly argue, therefore, that in this proceeding, “Pro-Football bears the burden of demonstrating that the TTAB’s findings were unsupported by substantial evidence.” Defs.’ Opp’n at 4 (citing Trans Union Corp. v. F.T.C., 245 F.3d 809, 814-15 (D.C.Cir.2001); Cleary Gottlieb Steen & Hamilton v. Dep’t of Health and Human Services, 844 F.Supp. 770, 783 (D.D.C.1993)). The Court of Appeals for the District of Columbia Circuit in Trans Union re-affirmed the common understanding that a party making a substantial evidence challenge to an agency’s decision has a responsibility to articulate why each particular finding is unsupported by substantial evidence. Trans Union, 245 F.3d at 815 (“To bring a substantial evidence challenge [to an agency’s decision, a party] ... must identify the specific findings it challenges and demonstrate that each finding is either unsupported by evidence or, because the Commission unreasonably discounted contrary evidence, unsupported by ‘the record in its entirety.’ ”) (quoting Universal Camera, 340 U.S. at 488, 71 S.Ct. 456). Pro-Football, however, argues that the Court of Appeals’ decision in Material Supply compels a different result. PL’s Reply at 17 (citing Material Supply, 146 F.3d at 990). In the context of a district court review of a decision of the TTAB, the United States Court of Appeals for the District of Columbia Circuit stated: Because the TTAB decided against [Plaintiff] and [Plaintiff] sought review of that decision in district court, we think [Plaintiff] had the burden of going forward, that is, of submitting to the court evidence or argument to counter the decision of the TTAB. Nevertheless, because [Defendant] had the burden of proof before the TTAB and because the district court must review the TTAB’s decision de novo, [Defendant] must bear the burden of persuasion in district court. Material Supply, 146 F.3d at 990-91 (emphasis added). The proceedings in Material Supply differ from the instant proceedings, however, because that case involved a District Court’s review of a TTAB’s summary judgment decision. Id. at 990. A review of the TTAB’s summary judgment conclusion, like any legal decision of the TTAB, is reviewed under a de novo standard of review. In this ease, however, the proceedings below were not decided on summary judgment motions, and as such, the TTAB, sitting as a finder of fact, must be awarded the deference befitting the procedural posture of this case. Unquestionably, the Court reviews de novo the TTAB’s decisions regarding the appropriate legal standards to apply to the case. See In re International Flavors & Fragrances, Inc., 183 F.3d 1361, 1365 (Fed.Cir.1999) (“We review the Board’s legal conclusions, such as its interpretation of the Lanham Act, 15 U.S.C. § 1051, et seq., de novo.”). Accordingly, the legal standards used to make a finding of disparagement and any other questions of law are reviewed by this Court de novo. í|í ❖ ‡ The Court now turns its attention to the opinion of the TTAB in this case. The Court first analyzes the TTAB’s sporadic attempts at findings of fact. These findings of fact, as discussed supra, are reviewed under the substantial evidence test. The Court then turns its attention to the legal principles adopted by the TTAB to help it resolve this case. The Court reviews the TTAB’s legal principles de novo. Finally, the Court returns to the TTAB’s application of the legal principles to its findings of fact and its determination that these findings demonstrate by a preponderance of the evidence that the trademarks at issue may disparage Native Americans. As the Court has indicated, it must review this decision under the substantial evidence test outlined above. 3. The TTAB’s Findings of Fact The Court’s review of the TTAB’s findings of fact is limited by necessity given the paucity of actual findings of fact made by the TTAB. Even though it spent fourteen pages cataloging the evidence in the case, H