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August 12, 2005

NCAA Mascot Controversy

As you may know, the NCAA has banned certain Native American nicknames in postseason play. The banned names are those that the NCAA deems "hostile or offensive." Unfortunately, the determination of which schools will be affected is subjective. This has created quite a bit of press. However, I haven't seen anything discussing the trademark aspect of the names.

The most prominent protester of the NCAA ban is Florida State, with the nickname of "the Seminoles." The University first obtained registration of the mark "SEMINOLE" in 1984, and has been using it since 1947, according to records in the USPTO. Under 15 U.S.C. § 1052, the USPTO will not register a mark that "[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." However, many of these "hostile or offensive" nicknames are registered marks.

This leads to the question whether the registered marks should also be cancelled. This has been addressed with regard to the "Washington Redskins." However, the resolution of the matter was based on procedural and evidentiary determinations. In fact, in Pro-Football, Inc. v. Harjo, the D.C. District Court states

Ultimately, the evidence in the case does not answer the legal question of whether the trademarks, in the context of their use during the relevant time frames, may have disparaged Native Americans. The evidence chips away at the sides of this legal question but never helps answer it directly.

The promise by Florida State to fight will obvioulsy challenge the NCAA ruling. However, it doesn't seem likely that any party will try for cancellation of the registered marks in the near future. But, the challenge is waiting, and the outcome will certainly be interesting.

Go Pokes and Boomer Sooner (er, should I say "Go friendly range-living, cattle-driving, land-loving sort of people" and "Good luck to those who wait for the boom of the gunshot before staking their claim to land, as well as those who couldn't quite wait for the official start")

Posted by Melody Wirz at 10:13 AM.
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