Abstract

Excerpted From: 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 Law Journal 183 (2024) (237 Footnotes) (Full Document)

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. A strong team name creates an emotional link with the fan base. But what happens when teams miss the mark on their name and logo? This question has been raised primarily in regard to teams whose names and logos reference NativeAmerican culture. 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.

For teams who did change their name, the decision was usually due, in part, to immense public pressure. Team management now recognizes that fans will no longer put up with offensive or derogatory references. However, the majority of the name and logo changes have not been influenced by fans alone. The primary catalyst for these changes has been financial incentives. 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”) generated roughly $5.3 billion in revenue; all showing a drastic annual increase in revenue. These leagues are huge financial investments for owners and sponsors, and have traditionally reaped substantial rewards. History has shown that nothing will provoke internal team change like the risk of financial loss. One of the strongest financial incentives faced by teams is their ability to profit off of their name and logo. Teams protect these financial incentives by registering their names as a trademark with the United States Patent and Trademark Office (“USPTO”), which restricts all other entities from profiting off the marks. However, when teams use potentially-offensive cultural references for financial profit, formal legislation can promote rejection of such trademarks.

This Comment reviews the judicial history surrounding trademark restrictions on professional sporting teams' names and logos, and further proposes legislative solutions to these rising problems. Section II begins with a discussion of the importance of trademarks to sporting teams. Further, it discusses the constitutional implications of trademark revocation and introduces the Disparagement Clause of the Lanham Act, which revoked trademark registrations for marks that may disparage certain groups. This Section further describes the judicial history surrounding the revocation of the Disparagement Clause. Section III analyzes the inadequacies of the Disparagement Clause which made it unconstitutional and it later proposes amendments which would allow for trademark restrictions in certain situations. This Comment closes with remarks on how an amended law would impact the remaining teams with NativeAmerican references.

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To date, three of the major professional leagues in the United States have teams whose names and traditions reflect NativeAmerican culture. Following the Redskins name change to the Commanders, the only remaining NativeAmerican-referencing NFL team is the Kansas City Chiefs. The Chiefs were originally named after Harold Bartle, also referred to as “Chief Lone Bear,” a white man who claimed to be inducted into a local tribute of Arapaho people. The Chiefs logo has changed twice since its inception and now is an arrowhead with “KC” inside. However, the Chiefs have made a few institutional changes in the past years out of respect for NativeAmerican culture. One point of contention was their pre-game tradition of having a cheerleader ride a horse named “Warpaint” across the field, while hitting a NativeAmerican-style drum; a tradition the team eliminated in 2021. The Chiefs have also banned the use of NativeAmerican-style headdresses and face paint at Arrowhead Stadium. While this has been a positive change, team president, Mark Donovan, has remained adamant that he will not consider changing the team's name or logo. He claims that the name reflects their respect and admiration of NativeAmericans. He also continues to allow the tomahawk chop as a game-day celebration, as well as promotion of the “Drum Deck,” a large native-style drum fans are allowed to hit. This persistence has caused increased controversy within the Native community, and the general population, about the team's insistence in appropriating NativeAmerican culture.

History has shown that congressional influence can restrict benefits for discriminating teams. Some have found other ways to force institutional change; primarily through pressure from sponsors. However, these modes are not concrete and leave room for inaction. This issue leads fans to wonder what can actually be done to restrict these offensive references. In limiting a team's ability to solely profit off of their name and logo, teams would face a substantial financial burden which would inadvertently force change. While it is clear that the original Disparagement Clause was not equipped to ensure cultural protection, legislature can step in to fill these gaps. By introducing a new law which only removes trademark registrations for those which disparage a specific protected class, the USPTO would be equipped to revoke the trademark registrations of NativeAmerican-referencing teams, such as the Chiefs, the Blackhawks, and the Braves.

J.D. Candidate, May 2024, Villanova University Charles Widger School of Law; B.A., Psychology, May 2019, Florida International University.