Archive | October 7, 2014

Washington Redskins Trademark Battle

October 7, 2014

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By Michael Cunningham – Thompson Rivers University 2L JD Student

The National Football League’s Washington Redskins find themselves in a familiar legal battle yet again over the offensiveness of their team name. Since 1992, there has been an ongoing protest over whether the name of the team is degrading to the Native American population. This first protest began with an action brought forward by Susan Harjo to the Trademark Trial and Appeal Board (TTAB) under s.2(a) of the Lanham Act. Section 2(a) bars the registration of trademarks that “… may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols …” Finally in 1999, the TTAB ruled that this was the case, and invalidated the trademark registrations held by Pro-Football, Inc., the ownership group of the Washington football club. Pro-Football appealed the decision and had the ruling reversed in 2003. The district court held that the plaintiffs had not shown substantive evidence that the term was disparaging to Native Americans when the trademarks were registered in 1967. As well, the decision was overturned on the defence of laches, which is essentially that the plaintiff had an unreasonable delay in bringing their claim forward and by doing so has prejudiced the defendant. The unreasonable delay resulted from the plaintiffs having known about the name for many years before choosing to bring their claim forward.

The new action against the Washington ownership group, which was put forth by Blackhorse et al. in 2006, was recently decided on by the TTAB. Once again, they found the trademarks to be disparaging towards Native Americans. One notable difference between the current case of Blackhorse and the earlier case of Harjo, is that this time around the plaintiffs are all 18 years of age. Having just reached the age of majority, Pro-Football will not be able to use the same lache defence they were able to previously.

Evidently, it seems that the Washington ownership group will raise constitutional issues with the TTAB’s ruling, in that their First and Fifth Amendment rights have been violated, those being their right to freedom of speech and their protection against unfair treatment in a legal process, respectively. In the meantime, Pro-Football has appealed this decision, which allows them to keep their trademarks intact for the time being.

Looking to the future, even if Pro-Football is unable to have the TTAB decision reversed, they are not legally required to change their name, as neither the US Patent and Trademark Office or the TTAB have the power to enforce such a decision. As pointed out by Darren Heitner, a contributor to Forbes and an intellectual property lawyer, even without federal trademark protection Pro-Football would still have common law protection over their trademarks.

This case also has implications in many other pro sports leagues in North America, as there are a handful of other teams such as the Atlanta Braves, Cleveland Indians, Chicago Blackhawks, Edmonton Eskimos and the Kansas City Chiefs that flirt with this controversy. In most of these cases it would likely be very difficult for a plaintiff to show that any of these teams’ trademarks were disparaging towards Native American people when they were filed.

There are likely two ways in which this situation will sort itself out. As suggested by Steven Shelton, a contributor for “The Legal Intelligencer”, the controversy may likely be resolved through political pressure, as there was a bill introduced to the US House of Representatives in 2013 that would deregister any trademarks that used the term “Redskin.” As well, a congressional representative from D.C. is pushing for a bill that would revoke the NFL’s tax-exempt policy unless Washington’s team name is changed.

The second situation involves pressure applied by corporate sponsors of the NFL. What would likely occur is something similar to what transpired with the NBA’s Los Angeles Clippers owner David Sterling in the aftermath of his racist remarks becoming public. Just as the NBA forced Sterling to sell his team for actions considered to be detrimental to the league, the NFL and its owners could do the same to Pro-Football, and force the name of the club to be changed.

This may be wishful thinking since this controversy has been around for over 20 years and there has yet to be enough pressure from either politicians or sponsors to influence the changing of Washington’s name. Pro-Football has been adamant that they will not change the name, and without substantial pressure from either of these groups, it likely will not occur as the courts do not possess the power to compel a change.

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To Grass or Not to Grass: Gender Discrimination at the FIFA Women’s World Cup Canada?

October 7, 2014

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By Fei Kang – Thompson Rivers University 3L JD Student

Canada will host the 2015 FIFA Women’s World Cup. Exciting, eh? The Canadian Soccer Association (CSA) will see this world-class tournament played from June 5th to July 6th in 6 cities across the country next summer. FIFA, the international governing body of football, agreed to a “2-star recommended football turf” as part of Canada’s bid deal; yes, artificial turf. Once this announcement was made, confusion and public outrage began. This is because the men’s equivalent of the event has only ever been played natural grass. My egalitarian Canadian roots tell me there must be a reason for this difference … but there doesn’t seem to be one.

Abby Wambach, a striker and leading goal scorer for the US Women’s Team, has been leading the public protest. She decided to take it public when nothing came of private complaints from the players to both FIFA and CSA. Wambach is not alone in her disdain either. International male players, US congressmen and even celebrities such as Kobe Bryant and Tom Hanks have given their two cents on the matter: “Hey FIFA, the women deserve real grass. Put in sod!”

There seems to be a consensus among soccer players that artificial turf is a second class surface and inferior for international soccer. Most can attest that turf is unforgiving on the players’ bodies, especially where recovery time is precious. Grass holds moisture, turf cannot. As a result, turf tends to get unbearably hot when the air temperature rises, which can lead to less-forgiving injuries, including second degree burns. Indeed, robust biomechanical data suggests that torque and strain may be greater on artificial surfaces than on natural grass. Recent data by Drakos et al. in 2013 suggest that elite athletes may sustain injuries at increased rates on the newer 3G surfaces. Some also say that the ball simply travels differently on turf and affects the game negatively.

FIFA states that while turf has been unsuccessful in the past, recent developments have made football turf a qualified and viable “best alternative” to natural grass. FIFA only certifies 3G systems, which fulfill quality requirements like playing performance, durability and quality assurance. Turf has financial advantages as well, which is where CSA likely stands, due to the resistance to weather, ability to endure intense use and multi-sport purpose. FIFA has stated that the particular geographic and climatic conditions in Canada mean it is more expedient to play on artificial turf, and that it is “the surface of the future.” In short, FIFA a is turf cheerleader.

The protesting athletes say the decision to play the tournament on turf amounts to gender discrimination because the men would never be forced to play the sport’s premier tournament on fake grass. In fact, there are no plans to shift future men’s World Cup tournaments to turf through to 2022. In late July, 40 top players and their lawyers joined in a letter of protest to FIFA and CSA. As of Sept 27th, FIFA has yet to respond and CSA has deferred comment to FIFA. The players are now poised to take legal action in Canada. Under the Canadian Charter of Rights and Freedoms, Section 15(1) states:

“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on … sex.”

Additionally, under the BC Human Rights Code (and similarly enacted in every Province and Territory), a person (Section 8) or association (Section 14) must not discriminate against any person or member because of sex. The players will likely bring an action under both the Charter and Code.

Overall, it just doesn’t make sense. Even FIFA’s website out-rightly states that its certified turf is a best alternative to natural grass. So use grass? It’s the World Cup and we are not in 1915. Many questions remain: if turf is the future, why is it not incorporated in future men’s tournaments? Will the 40 players’ legal action be successful under anti-gender discrimination laws in Canada? Whatever the court says, and whatever FIFA and CSA may say, the fact is that it looks like turf is being used as experimental surface in a world-class women’s tournament. Women are being singled out. I am proud of the protesting players for their unwillingness to accept less than they deserve. We should not accept gender discrimination in international sporting events. We can do better, Canada.

 

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We’re Back

October 7, 2014

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The road to hell is paved with good intentions. This expression is just as appropriate now as it was when coined by – depending on whom you believe – either Samuel Johnson (1709-1784) or Saint Bernard of Clairvaux (1091-1153).

It seems that despite the best of intentions, our pseudo-journalistic responsibilities have suffered due to our academic duties at our respective universities (just think of the time we would have if we could teach without prepping, evaluate without marking, write without researching, and administrate without pushing paper), our coaching responsibilities (Kris to his gymnastics and trampoline teams and Jon to his kids’ soccer/football and volleyball teams) plus changes in our work lives (Kris as Associate Professor and coordinator of LLM and PhD programmes at Staffordshire Law and Jon as Associate Dean of Law at Thompson Rivers University).

Whilst our intent has been to offer educational or informational commentary in response to contemporary events in sports law, we haven’t posted as much as we would have liked in recent months but hope to remedy the situation by increased vigilance and through posts written by JD or LLB students in our respective programmes.

We’ll begin with a piece about alleged gender discrimination at the FIFA Women’s World Cup Canada 2015.

We’re back.

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