Tuesday 15 January 2013

The Controversial Mark: Is Image Everything and is all Publicity Really Good?

One of the most famous American football teams in the United States is the Redskins based in Washington DC.  And, perhaps the most famous case involving potentially scandalous or disparaging trademarks in the United States, is a number of decisions involving the Redskins trademarks—the Harjo v. Pro-Football, Inc. case.  In that case, the plaintiffs, a group of Native Americans, attempted to cancel the federal trademark registrations of the Washington Redskins football team.   And, as many know, the case ended with a less than satisfactory result for some—basically the Plaintiffs are unable to proceed because they unreasonably delayed in asserting their claim to the prejudice of the Defendants. 

The Redskins issue and the general controversy has resurfaced again for at least a few reasons.  At least one university has attempted to reintroduce and use some Native American imagery with its football team—the Eastern Michigan University marching band recently sported their previously spurned Native American imagery at a football game.  There is apparently a new group of plaintiffs going after the Redskins federal trademark registration.  And, the Washington Redskins have been thrust back in the national spotlight because it had an unbelievably good season and an equally unlikely good season behind its incredibly talented first year quarterback, Robert Griffin the III, also known as RG3.  This good season came to an abrupt halt a week ago when RG3 was injured and the team lost in the playoffs.  After the loss and with it the inevitable Monday morning quarterbacking, a columnist for the Washington Post took a different approach to criticize the team and used the publicity and popularity of the game to redirect attention to the Redskins trademark controversy.  He took an unusual approach though.  He basically asserted that the Redskins lost because of “karma” based on the retention and use of their asserted offensive trademark—something like "the universe has spoken superstitious sports fans and you deserve this loss and the possible loss of RGIII because you continue to refuse to put enough pressure on owner Dan Snyder to change your insulting name."  Ignoring other important issues, if you were attempting to value this mark, how would you discount the unpopularity of the mark with some people—particularly those people who are not Redskins football fans?  Does that even matter?  Does this hurt the Redskins in its or its’ players ability to sponsor or endorse other brands (or receive sponsorships—apparently not with some like FedEx)?  (RGIII also endorses Subway sandwiches.)  What if you knew some Redskins fans refused to buy merchandise sporting the Redskins name and logo because they thought the name and logo were in “poor taste?”  Do you think the Redskins would be more or less popular (or the mark more or less valuable) if they changed their name to something like the “Presidents?”  Would the existing fans have to go out and buy updated merchandise?  In considering these issues, do sports teams raise different issues than say blanket manufacturers?

One of my favorite decisions is Sporting Kicks Ltd’s Application involving the attempted registration of the words “Inter City Firm” in connection with clothing, badges and other items (well, it involves Football, aka soccer, raises all sorts of interesting issues, and involves a trademark).  The decision concludes that the mark is not registrable because its registration would be contrary to public policy—the mark references a group of football hooligans (If you haven’t seen the movie Cass, I recommend it).  The decision includes some very interesting language: “Such a sign falls within a category of marks that may be described as “anti-social branding.”  Is the mark "Redskins" a form of “anti-social branding?”  Not of the team, its players and fans, but of the people it may be perceived as referencing?   How important and/or reinforcing is a consistently presented image through a mark?  Have you seen this video—it is worth well more than a few minutes of your time.  Should the Redskins federal registration be cancelled because the United States shouldn’t stand behind such a mark, as others have raised—apparently giving it a stamp of approval?  The Smithsonian will confront some of these issues at a symposium in February titled, “Racist Stereotypes and Cultural Appropriation in American Sports.”

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