Missing the Mark: How Legislative Adjustments to the Disparagement Clause Could Promote the Revocation of Trademarks for Professional Sporting Teams Referencing Native American Culture

Volume 31 Issue 1 Article 5 2-12-2024 Missing the Mark: How Legislative Adjustments to the Disparagement Clause Could Promote the Revocation of Trademarks for Professional Sporting Teams Referencing Native American Culture Laura Ospina Follow this and additional works at: https://digitalcommons.law.villanova.edu/mslj Part of the Constitutional Law Commons, and the Entertainment, Arts, and Sports Law Commons Recommended Citation Laura Ospina, Missing the Mark: How Legislative Adjustments to the Disparagement Clause Could Promote the Revocation of Trademarks for Professional Sporting Teams Referencing Native American Culture, 31 Jeffrey S. Moorad Sports L.J. 183 (2024). Available at: https://digitalcommons.law.villanova.edu/mslj/vol31/iss1/5 This Comment is brought to you for free and open access by the Journals at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Jeffrey S. Moorad Sports Law Journal by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. MISSING THE MARK: HOW LEGISLATIVE ADJUSTMENTS TO THE DISPARAGEMENT CLAUSE COULD PROMOTE THE REVOCATION OF TRADEMARKS FOR PROFESSIONAL SPORTING TEAMS REFERENCING NATIVE AMERICAN CULTURE I. I ntroduction : S porting T eams ’ F inancial R eliance on T rademark P rotection s A professional sporting team’s name and logo are critical to creating a team brand and further creating long-term relationships with its fan base.1 A strong team name creates an emotional link with the fan base.2 But what happens when teams miss the mark on their name and logo?3 This question has been raised primarily in regard to teams whose names and logos reference Native American culture.4 While the majority of teams with such references have elected to forgo their names for a less offensive option, a number of these professional teams continue to stand by their names.5 1. See Kenneth Cortsen, The Importance of a Name and Logo in Sport Branding, Kenneth Cortsen (June 7, 2013), https://kennethcortsen.com/the-importanceof-a-name-and-logo-in-sport-branding/ [https://perma.cc/5YCY-B2WT] (“[S]port branding is an essential part of the process when sport entities want to distinguish themselves from competitors. The significance of a name and logo are key assets when sport entities strive to build strong relationships with their fans.”). 2. See id. (“Fans generate additional buzz around the sport entity and thus facilitate revenue streams through various business stands . . . The ‘emotional equity’ comes into play when the name and/or logo apply the ‘sentiment’ that there is a connection between the sport entity’s name and/or logo and the home area’s story, spirit and nature.”). 3. See Cathryn L. Claussen, Ethnic Team Names and Logos - Is There a Legal Solution?, 6 Marq. Sports L. J. 409, 409 (1996) (presenting legal issue as to “whether it is possible for a state or local government to prohibit the use of ethnic team names and logos without running afoul of the First Amendment’s protection of the freedom of speech.”). 4. See id. (“Despite the fact that not all Native American groups support the elimination of ethnic team names and symbols, most of the commentary has taken the position that such representations are stereotypically racist and demeaning, and should be eradicated.”). 5. See Sam Hitchmough, Sports Teams are Finally Scrapping Native American Mascots – On Both Sides of the Atlantic, Conversation (Feb. 7, 2022, 9:00 AM), https:// theconversation.com/sports-teams-are-finally-scrapping-native-american-mascots-onboth-sides-of-the-atlantic-176083 [https://perma.cc/A9NH-7NN5] (stating effects of Washington’s name change on international sport teams, such that teams in United States and United Kingdom began changing or considering changing names referencing Native Americans); see also Tom Lutz, Indians, Braves and Chiefs: What Now for US Sports’ Other Native American Names?, Guardian (July 13, 2020, 1:10 PM), (183) 184 J effrey S. M oorad S ports L aw J ournal [Vol. 31: p. 183 For teams who did change their name, the decision was usually due, in part, to immense public pressure.6 Team management now recognizes that fans will no longer put up with offensive or derogatory references.7 However, the majority of the name and logo changes have not been influenced by fans alone.8 The primary catalyst for these changes has been financial incentives.9 In 2021, the National Football League (“NFL”) generated roughly $17 billion in revenue, Major League Baseball (“MLB”) generated approximately $9.6 billion in revenue, and the National Hockey League (“NHL”) https://www.theguardian.com/sport/2020/jul/13/indians-braves-chiefs-us-sportsteams-name-changes-native-americans [https://perma.cc/2RTB-8LZH] (stating that despite Washington’s franchise change, remaining teams have maintained their intent to retain current names). 6. See Liz Clarke, In Private Letter to Redskins, FedEx Said it Will Remove Signage if Name Isn’t Changed, Wash. Post (July 10, 2020, 12:50 PM), https://www.washingtonpost. com/sports/2020/07/10/private-letter-redskins-fedex-said-it-will-remove-signageif-name-isnt-changed/ [https://perma.cc/RQ5J-8KG4] (discussing financial threats to owner, Dan Snyder, following potential removal of FedEx signage and other sponsorships deals). At that time, FedEx paid Snyder $205 million in naming rights deal, of which $45 million was due after 2020 request; meaning threats to pull out sponsorship would have costed Snyder millions in lost revenue. See id. (discussing financial power FedEx had over Snyder’s decision making). Additionally, major corporate sponsors, such as Nike, PepsiCo., and Bank of America publicized a need for change, while Nike removed all Redskins merchandise from its online store. See id. (describing various outlets of financial risk faced by Redskins organization). This risk of financial loss sparked a near immediate investigation into a potential name change for Washington. See id. (describing catalyst for instantaneous changes made by Redskins organization). 7. See Calum Trenaman, Global Sport’s Problem With the Appropriation of Indigenous Culture, CNN (Jan. 18, 2021, 5:05 AM), https://www.cnn.com/2021/01/18/sport/ indigenous-culture-in-global-sport-cmd-spt-intl [https://perma.cc/JY27-3ZQH] (discussing key events, such as George Floyd’s death, as catalyst for racial reform which has forced Native American referencing sports teams to reconsider their affiliations); see also Maxwell Cashio, Why a Name Change for the KC Chiefs Feels Inevitable, Arrowhead Addict (July 27, 2021), https://arrowheadaddict.com/2021/07/27/ kc-chiefs-name-change-feels-inevitable/ [https://perma.cc/GHG5-C466] (discussing controversy surrounding team name and fan requests to change demeaning and irrelevant name). 8. See Clarke, supra note 6 (“[T]he prospect of losing FedEx and facing an exodus of the team’s other corporate sponsors proved more powerful than a (...truncated)