Less than three weeks before today’s season opener, the NFL’s Washington Commanders released a batch of merchandise depicting the racist former name and logos that the team retired in 2020. Sadly, the merchandise available online sold out within 48 hours. When asked why they sold the items in question, a spokesperson for the Commanders pointed to the law that requires the team to sell something with the problematic name and imagery to maintain control over its use. However, in our view, the team is manipulating this quirk of trademark law to provide cover for its rejuvenation of a racial slur and its related stereotypical branding.
If the Commanders simply discontinued its use of the branding, its federal trademark rights eventually would vanish, and someone else could use the racially offensive name and logo to sell merchandise. According to this doctrine, known as “abandonment,” trademark rights only exist so long as a party uses them in commerce.
In our view, the team is manipulating this quirk of trademark law to provide cover for its rejuvenation of a racial slur and its related stereotypical branding.
The Washington Commanders are not the first team or brand to face this dilemma. Even though the University of North Dakota got rid of its “Fighting Sioux” nickname and logo in 2012, the NCAA has required the school to continue selling merchandise bearing the trademarks in a limited collection, presumably out of concern the trademarks would otherwise be abandoned.
More broadly, other companies — such as Quaker Oats, which owns the Aunt Jemima name and logo — have been faced with the same choice, but chose a different outcome. When it changed Aunt Jemina to the Pearl Milling Company, Quaker Oats kept a small version of the former trademark on its pancake boxes. The Aunt Jemima imagery is discreet, not a central piece to the packaging, but offers Quaker more than enough to avoid abandonment claims. In contrast, the Commanders recent merchandise drop included a T-shirt with imagery of Hall of Fame wide receiver Art Monk, centering a large image of the now-retired, caricatured logo. The size and prominence of the racist name and logo were far more than what was necessary to satisfy the law.
The Commanders’ decision to make the old name and logo so big makes us doubt that the risk of trademark abandonment was the team’s main concern. To the contrary, the aesthetic choices appear to be consistent with a pattern of behavior from the organization that seems to be setting the stage to backslide into more continuous and comprehensive use of the defunct brand. That pattern includes their recent release of alternative logos as “inspired by franchise history,” and offers a trial balloon for a team that appears to want to reconnect with its racist past. Although trademark law does not recognize “token” sales as sufficient to avoid abandonment, it also does not require that trademark owners maximize sales of merchandise depicting the trademark to keep their rights.
We think trademark law could be modified to address these issues. Doing so would prevent Washington’s football team, Cleveland’s baseball team (and eventually, we hope, professional sports teams in Atlanta, Kansas City and Chicago) from claiming the legal mandate to promote harmful stereotypes.
As legal scholars, we do think that trademark law could be modified to address these issues. Doing so would prevent Washington’s football team, Cleveland’s baseball team (and eventually, we hope, professional sports teams in Atlanta, Kansas City and Chicago) from claiming the legal mandate to promote harmful stereotypes.
What can be done, then, to keep these images from proliferating in public once a brand makes the important stand to move past racist imagery or iconography? Congress could amend the law so that it’s not abandonment if consumers still associate a formerly used trademark with its original owner. Perhaps regrettably, football fans will likely associate Washington’s old name and logo with the franchise for decades to come. With such a change, the Commanders could prevent others from selling merchandise bearing the trademarks without the team having to sell it itself.
Alternatively, Congress could create a new permanent trademark registry for certain trademarks that have been retired by their owners. The registry would be limited to trademarks with historical significance, related to the brand’s commercial success, or connected to important political or social issues. This would include trademarks abandoned because of their connections to harmful racial, ethnic, or gender stereotypes. With such a law, the United States Patent and Trademark Office would be empowered to stop others from selling merchandise bearing the trademarks, ensuring that the trademarks would be removed from the marketplace for good. It also allows companies that want to sever ties with their racist pasts to do so with less concern that others will be able to swoop in take their place.
All of these options are better than the status quo which requires teams to continue selling racist merchandise and, worse, allows them to hide behind the law as they sell it enthusiastically.
The post How the Washington Commanders mishandled selling T-shirts with the team’s old name and logo appeared first on MS NOW.
Author: Source Author
From MS Now.
Leave a Reply