Photo by Chris K ()

Andrew Masson is an IPilogue Writer and a 1L JD candidate at Osgoode Hall Law School.

Ìę

After a year and a half, the Washington Football Team has : the Washington Commanders. The season as it was considered an offensive Indigenous slur. However, due to complications in finding a new team name, they spent the last season as the Washington Football Team. The reason this happened—and why you are reading about it on an IP blog—is because one of the largest roadblocks in confirming a new name was the presence of existing trademarks. In particular, a person named Philip Martin McCauley had filed , many of which being ‘Washington’ with a variation of a potential team name, including the , , , and even .

At the turn of the new year, team president Jason Wright the process of determining a new team name and acknowledged that legal challenges were a major driving force in selecting the Washington Commanders. However, a large part of these issues seems to be self-inflicted as the team's failure to adopt a different name (and attain the appropriate trademark) earlier has made picking a new name much more difficult. The team’s owner Dan Snyder also stated he had no interest in pursuing any team name with a legal conflict, which is an interesting approach to dealing with trademark squatting (i.e., those that file but do not use their trademarks). Instead of paying or fighting for a name that is trademarked but not used, the team just worked around them. Ìę

The drawback to this strategy is that one of the most popular and meaningful options for a new team name, the Washington Red Wolves, could not be acquired. Shortly after the initial announcement of a team name change on July 13, 2020, Red Wolves became a popular option among . However, on September 3, 2020, McCauley trademarked the “Washington Red Wolves”.

I am unable to determine the motivation behind McCauley's trademark, but the part I find perplexing is that the Washington Commanders seemed unprepared for these issues when the team's name change was announced. This could be an oversight due to the infrequency that professional teams change names, or team owners and management were not passionate about any specific team name and so they planned to just pick their favourite among the options without legal conflict. Although a rare occurrence, I am sure the Washington Commanders’ difficulties will inform the actions of teams that may be faced with similar problems moving forward, such as the Chicago Blackhawks (NHL), or Atlanta Braves (MLB). With the creation of new teams and leagues, especially with the rise of esports, team managers and owners ought to be careful about when they announce teams and take the time to check for any IP conflicts beforehand. ÌęÌęÌęÌę

The post Washington Football Team Chooses New Name and Avoids a Trademark Battle appeared first on IPOsgoode.

North American professional sports, in general, are far from a beacon of political correctness. Vivid imagery of racial stereotypes is strewn throughout the professional sports landscape with teams like the Atlanta Braves, the Edmonton Eskimos, and most famously, the Washington Redskins. In recent years, public scrutiny over their use has attracted a number of noteworthy legal decisions.

In June 2014, the Washington Redskins found themselves at the wrong end of a after the United States Patent and Trademark Office cancelled six of their trademark registrations for “Redskins”. In that case, petitioners sought cancellation of the marks on the ground that the registrations were obtained contrary to , a provision that prohibits registration of marks that may disparage persons or bring them into contempt or disrepute. The appeal board that the registrations must be cancelled “because they were disparaging to Native Americans at the respective times they were registered.”

In another similar incident in 2016, ahead of a hotly contested playoff matchup between the Toronto Blue Jays and the Cleveland Indians, Indigenous activist and renowned architect Douglas Cardinal sought an against Cleveland preventing them from using, displaying, or broadcasting their team name or logo. Cardinal grounded his claim in the , noting that use of the name and logo constituted discrimination against him on the grounds of race, ancestry, colour, ethnic, and national origin. Ultimately, the court ruled against Cardinal and the application was dismissed. However, all was not completely lost. Beginning in the 2019 season, the “Chief Wahoo” logo from all uniforms.

Use of Indigenous names, symbols, and practices in sports is a complicated issue. On one side, there are the fans, who have developed an attachment to the team, its history, and traditions. On the other are Indigenous peoples, who were forced onto reserves, forced to attend residential schools, and forbidden from practicing some of the actions that fans of these teams have adopted. While the leagues and teams will argue that contemporary use of the names and images has shifted towards honouring and respecting Indigenous peoples, a of Twitter commentary has shown otherwise. In an with CBC, Jason Black, Fulbright Research Chair at Brock University's Centre for Canadian Studies, explained that “As people see [Indigenous] folks, in particular in stereotyped ways, the less likely they are to do things like reconcile”. "They're less willing to understand Indigenous history or vote for a particular candidate who has Indigenous reform in mind.” And so, a vicious cycle of racism and inaction spreads.

Teams seeking to make meaningful changes in their organizations should be cognizant of the 93 recommendations put forward by the (TRC) in 2015. Specifically, Call to Action 92, which calls on the corporate sector to adopt and apply the principles set forth in the (UNDRIP). This includes meaningful consultation, and free, prior, and informed consent with Indigenous peoples before proceeding with economic developments. In other words, teams need to engage in proper consultation with Indigenous people when it comes to team logos, branding, or any other activity that may reasonably affect them.

A recent by True North Sports and Entertainment, owners of the Winnipeg Jets and Manitoba Moose hockey clubs, shed some light on what this might look like in practice. In January, the Winnipeg Jets, along with their minor-league affiliate the Manitoba Moose, unveiled a new special jersey design bearing Indigenous-styled logos. The jerseys were all part of the second annual Winnipeg Aboriginal Sport Achievement Centre () Night, and all proceeds from the sales of the jerseys are going towards Indigenous youth activities. Here, the jerseys were not designed by the teams, nor by Adidas (the official jersey sponsor of the NHL), but in consultation with local artist from Pimicikamak Cree Nation.

Initiatives such as this are important for building stronger relationships in the local community but are also key in the broader reconciliation picture. Had the Cleveland franchise assessed themselves more honestly and humbly in the face of litigation, looked at documents like UNDRIP or the TRC recommendations – the cost-benefit analysis (both commercially, publicly, and morally) would weigh in favour of reconciliation. While it may be a complicated issue, it should not stop teams from doing the right thing and thinking more critically and responsibly about their branding imagery. The rest of the sports world should look to the Jets for leadership in moving toward accountable reconciliation and away from racism.

Written by Alexandre Dumais, IPilogue Editor and JD Candidate at Osgoode Hall Law School. Alexandre is also the Director of Sports, Osgoode Entertainment and Sports Law Association.

The post Chiefs Win While Indigenous People Lose: Use of Indigenous Symbols, Names, and Practices in Sports appeared first on IPOsgoode.

Recently, on December 29, 2019, ahead their divisional wild card playoff game, the Minnesota Vikings football team filed a trademark for “” and “”. The Vikings went on to win their divisional wild card game, but were knocked out this past weekend by the San Francisco 49ers. With the Vikings now out of the playoffs, could an ambitious filing be to blame for their early departure?

In sports, strategic and opportunistic trademarks are nothing out of the ordinary. Earlier this year, rookie basketball sensation Zion Williamson uttered the words “Let’s dance” during an interview after being drafted first overall by the New Orleans Pelicans. Less than 24 hours later, both Williamson and the New Orleans Pelicans filed competing applications for the mark “”. Other notable examples include, Marshawn Lynch’s trademark for “” and Johnny Manziel’s “”.

There are certainly plenty of benefits of a trademark . However, in the deeply superstitious world of sports, history has shown that applicants might want to think twice about when they file for protection. Here are two examples of trademark applications gone wrong in sports:

Pat Riley’s “three-peat”

With five NBA Championships, Pat Riley is one of the greatest NBA coaches of all time. However, in November 1988, ahead of the 1988-89 season, and following back-to-back championships with the Los Angeles Lakers, Pat Riley got a little overconfident and registered the words “” with the US Patent and Trademark Office. While the Lakers made it to the NBA Finals that season, they were swept by the Detroit Pistons, ultimately never completing the “three-peat”.

As fortune would have it, Riley would have a second chance at the “three-peat” years later as an executive with the Miami Heat. Again, following back-to-back championships in 2012 and 2013, the Heat fell to the San Antonio Spurs in 2014.

The New England Patriots and “19-0”

The New England Patriots might be closest thing to football perfection since Tom Brady joined the team in 2001. Since 2001, the Patriots have not had a losing season, have only missed the playoffs twice, and have won six Super Bowls. However, despite plenty of opportunity, the Patriots have never completed the fabled 19-0 perfect season. The closest the Patriots came to a perfect season was the 2007-08 season where they finished the regular season a perfect 16-0.

However, a couple weeks before Super Bowl XLII, the Kraft Group, owners of the New England Patriots, applied for trademark protection for “19-0”, a nod to their then perfect season. In one of the biggest Super Bowl upsets of all time, the 2007 Patriots fell to the underdog New 91ŃÇÉ« Giants 17-14. Ultimately, the mark was not used in the way it was intended, but the application was , and registered in 2016.

What these examples tell us, is that in the world of sports, particularly when championships are on the line, it might be best to develop notoriety in a mark prior to filing for protection.

Written by Alexandre Dumais, IPilogue Editor and JD Candidate at Osgoode Hall Law School. Alexandre is also the Director of Sports, Osgoode Entertainment and Sports Law Association.

The post Trademarks, Sports, and Superstition: Why a Premature Filing Could Cost You appeared first on IPOsgoode.