As the Cleveland Indians gear up for their playoff game against the Toronto Bluejays, they have been hit with an injunction. Indigenous activist Douglas Cardinal filed an injunction in Ontario court against the Indians, claiming that the Indians logo and the red-faced Chief Wahoo have racial undertones. This is not the first time that the organization has had to deal with such accusations. The Indians logo does present a problem due to its inherent representation of indigenous folk. Of course, imposing an injunction would be equally troubling. This would inhibit the Cleveland organization from advertising and merchandising, which would hurt sales and the businesses that make a living through advertising and merchandise.
Obviously, at the heart of it, this case is based on trademark law. Although this case was heard on Canadian soil, a similar set of laws could be applied if the case was heard in the U.S. The Lanham Act guides U.S. trademark law. Trademark law is constantly being reworked to meet new standards. The Indians organization holds a number of trademarks over the Indians logo and similar marks. There is even a mark on the mascot itself. The question is: can the mark be invalidated for potential racial connotations?
The answer is yes. Under a doctrine known as disparagement, a party may petition the Trademark Trial and Appeal Board to cancel a trademark registration that may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols. This doctrine is not so much about whether a trademark exists on the mark but rather whether the trademark can be invalidated on certain grounds. Examples of when a trademark was invalidated on such grounds include a depiction of Buddha in beachwear and using the name of a Muslim group that forbids smoking as a cigarette brand name.
Here, the Native American population has had a history of discrimination. Although the organization means no ill will with the use of such marks, there are still some overt racial tones to the marks that could prove to be derogatory for this group. Eventually, these marks might be invalidated on such grounds; however the Ontario court reasoned that because the injunction is coming at a crucial time in the baseball season, that it should not be enforced. At some later point, the court could rule otherwise. Also, if the case is held in the U.S., this disparagement could invalidate the mark.
A History of Abuse
Disparagement doctrine was created to prevent certain groups from feeling abuse. It is not the first time that the Natives have protested against such marks either. The Stanford Cardinals were once known as the “Indians” and it took student protest for them to remove the mark. Washington Redskins have been under attack too for the same reasons. Hence, it is not a new problem. It does not start and end with the indigenous population either. Individuals with disabilities, people of color, and the LGBTQ community have all brought claims against marks that have portrayed them negatively.
At the end of the day, there are means for these protected groups to be given the proper treatment. Brands and logos that disparage such groups can be taken down if there is justification for it. There are of other avenues that these groups can seek as well. Defamation, although more attenuated, is a legitimate cause of action in certain circumstances as well.
Authored by Sam Behbehani, LegalMatch Legal Writer