With college football season kicking off this weekend and the NFL season right around the corner, we have found ourselves pondering the issue of offensive mascots or symbols for sports teams. How offensive is too offensive? Who gets to decide what is offensive? Who needs to be offended (or how many need to be offended) for a team to be forced to change its name?
There are numerous examples (and likely more coming soon) of teams who have been forced to, or have chosen to, change their mascots or symbols based on the argument or belief that they are offensive to certain groups or individuals. Some of these examples are more clear cut than others. For instance, the mascot for a high school in Pekin, Illinois (named because it is halfway around the world from Peking) was known as the “Chinks” from the 1930s until 1980. The team mascots were a male and female student dressed as Chinese persons wearing traditional Chinese attire. An Ohio High school, East High, was known as the “Arabs” for several years, before changing to the “Orientals,” a name which was only dropped in the last couple of years. On a more well-known scale, the University of Illinois, under pressure from the NCAA, chose to discontinue use of its official symbol, Chief Illiniwek, in 2007, despite the fact that he was not based on an actual historical figure and that the intent of the Chief was to celebrate the Native American heritage of the state of Illinois. The University of Illinois currently does not have an official symbol or a mascot. Dartmouth University’s previous mascot was the Indian, and for several years after the Indian was dropped, there was no official mascot. Dartmouth’s unofficial mascot is now Keggy the Keg, after a student vote to decide upon a new one.
In intellectual property law, Section 2(a) of the Trademark Act, 15 U.S.C. §1052(a), is an absolute bar to the registration of immoral or scandalous matter as a trademark on either the Principal Register or the Supplemental Register. Specifically, “No trademark 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 consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
The issue of trademarks sometimes comes up in the battle to change longstanding, allegedly offensive team mascots. For example, in a case which bounced around courtrooms beginning in 1992, a group of seven Native Americans sought to have 6 trademarks of the Washington Redskins pro football team cancelled based upon the claim that the mark was disparaging to Native Americans. The Trademark Trial and Appeal Board (TTAB) granted the petition, and the Redskins appealed to the District Court, who found that the TTAB lacked sufficient evidence to find disparagement and that the petition was barred by the doctrine of laches (meaning that the petitioners waited so long to file their action that it was unfair to the Redskins.) The youngest of the complainants was 1 year old when the Redskins’ first application for registration was filed, and had turned 18 many years before the suit was filed. The Court of Appeals upheld the District Court’s ruling, and eventually the complainants appealed to the Supreme Court. Finally, in 2009, the Supreme Court refused to take up the case, ensuring that the Redskins name in the NFL would survive, at least for the immediate future.
It seems that that bulk of the Redskins case was decided on a procedural technicality. If laches wasn’t a defense, how do you think the Courts would have ruled? Did laches conveniently provide the Courts a way out of making a controversial decision? After all, while the Redskins argue that the mark is a sign of honor, which it may well be, the Washington Post pointed out that the team was “also fighting to protect millions of dollars’ worth of sales of Redskins merchandise. If the team had lost in court, it could have continued to use the name on Redskins paraphernalia but would have faced a tougher time preventing merchants from infringing on its trademarks.”
One of our own is an alum of the University of Illinois, and she certainly has some very passionate opinions regarding Chief Illiniwek and abolishing mascots and symbols. It is clear that there is a very fine line between appropriate and offensive in many cases. The biggest issue yet to be resolved and in hot debate right now is where that line currently stands or should stand.
How far is too far when it comes to mascots, symbols and team names? What about the Notre Dame Fighting Irish? Is that offensive enough to Irish-Americans to warrant abolishment sometime in the future? Will the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers one day fight to change Purdue University’s Boilermaker mascot? What if Sir Paul McCartney or Sir Thomas Sean Connery become offended by the use of “Knight” by so many teams in the US, including the Rutgers Scarlet Knights? What if the Arbor Day Foundation determines that the Stanford Tree is just too much?
Are we at the precipice of a slippery slope? Anyone has the right to be offended by any mascot, mark or symbol, but does that mean a team or institution should lose their right to determine their own team names, mascots and symbols?
Do you have any logo, trademark or other intellectual property questions? Check out The McHattie Law Firm for help.
(Abigail Nickerson)