This week, the Cleveland Indians will battle the Chicago Cubs in their triumphant return to the World Series for the first time since 1945. As attention is drawn to Cleveland’s dispute over their century-old moniker and logo, they will also face an important battle in the minds of the public. The Indians name, as well as the toothy, red caricature of a Native American (colloquially known as Chief Wahoo) that has served as their official mascot since the 1950s have long been controversial.
Since the 1970s, there have been various unsuccessful legal and legislative challenges to attempt to force the Indians to change their name. In 2009, the Cleveland Indians appeared to begin to give way on this issue, and the administration began to scrap some of the public uses of the Chief Wahoo logo. At the beginning of the 2016 season, the Chief Wahoo logo was relegated to secondary status, and a block “C” replaced it on player’s hats. The Chief Wahoo hats were, however, donned once again during the ALCS playoffs and during game one of the World Series. Although both of these indicia been the subject of local outcry for a long time, with Cleveland’s first World Series appearance in almost 20 years, a renewed prominence of the Chief Wahoo logo and an increasingly more sensitive audience, the dispute is being elevated onto the international stage.
In the midst of their ALCS Championship series against the Toronto Blue Jays, Douglas Cardinal, a well known Canadian aboriginal activist and architect, filed for an injunction to ban on “official use” of the name and logo in the broadcast until his human rights complaint could be adjudicated. If successful, his request would have left the team wearing spring training uniforms, which do not display the Chief Wahoo logo. In addition, the producers and broadcasters could have only referred to the Indians as “the Cleveland team” and would have prohibited the broadcast of any of the controversial marks. Not only would this have caused a series of complications for broadcasters, but it would have presented a challenge for the stadium itself, because the jumbotron was preloaded with Indians imagery.
The Ontario Superior Court denied his request; the team wore their regular outfits incorporating the Chief Wahoo logo, and the games were broadcast as originally planned. His complaint alleged that the use of the name and logo constituted a human rights violation in contravention of the Ontario Human Rights Code and the Canadian Human Rights Act because they are offensive and constitute discrimination on the grounds of race, ancestry, ethnic and national origin in the offering of services to the public. He also claimed this constitutes harassment on the same grounds under the federal Act, and an “announced intention to discriminate” under Ontario’s code. While the injunction request was denied, the court will still address the merits of Cardinal’s complaint.
This isn’t the first time a complainant has opted to take the Human Rights route in this dispute. In September 2015, David Harris filed a human rights complaint in the Human Rights Tribunal of Ontario claiming his rights had been infringed under the Human Rights Code; specifically the protection of the “right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.” The complainant failed to complete his application and the complaint was subsequently dismissed.
The New York Times reported this weekend that Cardinal’s American counterparts were watching, and that although they had not yet challenged the team name or logo on similar grounds in the United States, they would now consider it. Philip Yenyo, the executive director of the American Indian Movement of Ohio admitted that their group had “never thought about [a human rights argument] before,” but believed that “it could be something [they could] pursue [themselves].”
Cardinal’s human rights appeal is the latest in a variety of challenges against the Indians since the early 1970s. In 1972, the Cleveland American Indian Center sued the team for $9 million for libel, slander and defamation stemming from the use of Chief Wahoo. The case settled out of court. A potential suit which posited a violation of the 14th Amendment was floated, but practical hurdles made this argument better in theory than in reality.
After several recent successes against the Washington Redskins trademark in front of the Trademark Trial and Appeals Board (TTAB), it appeared that trademark law would provide the path of least resistance for these types of challenges. Consequently, in February 2016 a nonprofit group filed a cancellation action against the registered trademark of Chief Wahoo. The case is suspended pending the disposition of Lee v Tam (or In re Tam), which the U.S. Supreme Court will decide on soon. The Tam case threatens the existence of the Section 2(a) disparagement refusal, which lies at the heart of disputes surrounding both the Indians and the Redskins.
If The Slants win, and the provision is ruled unconstitutional, the cancellation action against the Chief Wahoo mark may be thrown out, and the Redskins registrations would come back to life.
The Tam case specifically references an Asian-American musician, Simon Shiao Tam, who named his band “The Slants” and thereafter applied for a trademark. He argued that he chose the name, a derogatory term for Asians, to “make a statement about racial and cultural issues in [the United States].” The USPTO rejected his application on the basis that the mark was disparaging, and he appealed to the TTAB. The TTAB upheld the refusal, at which point he appealed to the Federal Circuit Appeals Court, arguing that Section 2(a) of the Lanham Act is unconstitutional as it improperly limits the Freedom of Speech. The Federal Circuit at first rejected Tam’s argument, but then reheard the case sua sponte and eventually overturned the refusal, agreeing that the portion of Section 2(a) of the Lanham Act which allows the USPTO to refuse a trademark application on the basis that it is disparaging, is unconstitutional. Although not yet scheduled, the Supreme Court will hear oral arguments during this term and likely decide on the case by the middle of next year.
Although the trademark battle over the Chief Wahoo logo is only in its infancy, a complete abolition of Section 2(a) of the Lanham Act by the Supreme Court would directly undermine the main argument against offensive team names, and foreclose the legal angle which appears to be the most likely to be successful at this point in time. The outcome of the Tam case also has a material impact on the trademarks owned by the Washington Redskins. Last year, at the request of a group of Native Americans, the TTAB canceled six trademarks owned by the Washington Redskins. The ruling was challenged in a Virginia federal court. The court upheld the ruling, finding that the Redskins name was disparaging to “a substantial composite of Native Americans” at the time each of the marks was registered.
The Fourth Circuit Court of Appeal will hear the Redskins case and consider: (1) whether the District Court judge was wrong in concluding that the marks were disparaging at the times that they were registered; (2) whether the judge was wrong in upholding the constitutionality of the disparagement provision; (3) whether the judge was wrong in rejecting the team’s argument that cancellation of the registrations decades after they were issued was a Fifth Amendment violation; and (4) whether the judge was wrong in allowing the Native Americans’ challenge to the trademarks given that they waited so long to pursue their claim.
The Tam case can make or break the second prong of the Redskins arguments against the cancellation; if the Supreme Court upholds the constitutionality of the disparagement provision, then this argument is a nonstarter. The other arguments, which are secondary to the constitutionality argument, would still be considered by the Fourth Circuit. If the Tam case is decided in the favor of the plaintiff, and the provision is ruled unconstitutional, the ruling would pave the way for a dismissal of the cancellation action against the Chief Wahoo mark, and the Redskins registrations would come back to life.
These trademark controversies emerge amidst a tide of changing team names; the NCAA issued guidelines in 2005 on the use of Native American imagery in team names, specifically requesting that many collegiate athletic departments rebrand. Some of the schools secured vocal support from local Native American tribes to maintain their team names, but many rebranded and dropped Native American imagery: the Arkansas State University Indians became the Red Wolves, the Indiana University of Pennsylvania Indians became the Crimson Hawks, the Southeastern Oklahoma State University Savages became the Savage Storm and the University of North Dakota dropped the “Fighting Sioux” in favor of having no mascot at all.
The cancellation of a trademark registration, while likely to elicit a change of a name that was viewed by a court as disparaging, would not prohibit a team from actually continuing to use the name if they wished to do so. They would merely not be able to enforce their rights in a manner that benefits from registration. Practically speaking, the team would struggle to commercialize their products because their ability to maintain a monopoly over their marks would not be recognized by law.
However, given their years unfettered registration and fame, there may be other ways that the Redskins or the Indians would be able to maintain some rights. The possibility of exercising common law rights or using other legal arguments to maintain some kind of monopoly have not yet been fully considered by courts in this context. In many ways, evolving public sentiment will be the strongest deciding factor for team offices when considering whether to rebrand or continue to fight to defend a besieged mark. While court cases on both sides of the border barrel onward, this year’s World Series will undoubtedly raise awareness of the plight of Native Americans by putting the dispute over Chief Wahoo and the Cleveland Indians in the living rooms of baseball fans around the world.