How Baseball Teams Became Tribes

Prior to the middle of the 1970’s there was a separation in baseball between fans and teams. In the thousands of photos that exist of crowds prior to 1975, you will not see team hats and shirts on fans. Now, such a photo shows that fans are also in uniform. This change occurred in 1975 or 1976 due to a chance encounter with an anthropology professor and the new Vice-Chairman of Major League Baseball Promotion Corporation, Now MLB Properties. (The reason the company had that long, awkward title was that the NFL had a “Properties” organization, and baseball didn’t want to appear to be copying the NFL! )

I was that Vice-Chairman and we were starting a program that registered team trademarks (they weren’t all registered at the time) to allow licensing of those trademarks to merchandise manufacturers. In those days, it was commonplace for teams to allow others to sell merchandise with, say, the Detroit classic Old English ‘D’ logo as it was seen as good advertising. No uniform parts were sold, however. Teams received no revenue from such practices. I was looking for ways to gain control over that intellectual property and increase sales and generate revenue from the licensing of team trademarked merchandise, especially uniform shirts, jackets and official hats.

A chance meeting with an anthropology professor provided the rationale. In an hour long meeting, he explained that fans were like Tribes in that they were organized around their teams, had a pantheon of gods, the venerable old stars, shared lore of games and pennants won, songs, “Skoal Vikings” and “We’re Gonna Win Twins,” and, most importantly, similar uniforms in designs and colors. The team’s hats and shirts being primary in this regard.

The. Professor went on to say that in a community, the members of tribes for various teams had allegiance only to that team. Where there was overlap, it was minor and a fan would have allegiance to one tribe only, but may have interest in another. In Minnesota, for example, a Twins fan may have interest in the Vikings, Wild and Timberwolves, or even the University’s teams, but were bound viscerally to the Twins.

I remember returning to the stadium that day wondering how to implement this information. I went to the merchandise department and checked on the Team trademarked goods being sold. there was little other than pins and badges, no real, authentic uniform articles, Wearing a T-shirt was interesting, but wearing an actual uniform shirt was critical to the link between the fan and the player. This is the essence of this change in marketing. The fan and player would now wear the same clothing. Isn’t that what members of the same tribes did, after all? Is there any wonder at why some teams are named for tribes, like “Fighting Irish” and “Quakers?” (Furthermore, baseball is unique in that it has a maximum of fan participation in the game as fans chase foul balls and there are even civilian casualties from this pursuit.)

Prior to this moment, the rule was that only uniformed personnel could wear the actual uniform. I had once given a high school baseball coach a fitted official team cap that he proudly wore everywhere. I was chastised for breaking a sacrosanct rule. I was about to break that rule again. I went to the clubhouse and asked the equipment manager for some team jackets. These had previously been worn only by players on the field, a foreign concept today. I asked what they cost, tripled the amount (the seller would receive 20% of the sale price), and took them to a merchandise kiosk, hung them up and waited. The sale price, probably $45, was very high for the day, and nothing else sold for $10, so I asked a friend of mine to buy one and wear it. (What cost $45 in 1976 would cost $192 today!)

What was dramatic was the reaction of other fans, who wanted to know where he bought that jacket. A new market had been created. This event was reported to Promo Corp Executive Director, Joe Podesta, in New York the next day and we started focusing on this concept as the core of merchandise sales. Some teams embraced it quicker.than others and I was again chastised internally for this behavior, but the industry had changed.

I was at Target field last night and it seems everyone wears some tribe/team clothing. Some celebrate the demi-gods, Killebrew, Oliva etc. Or the modern demi-gods, Mauer, others remind us of things gone wrong like Cuddyer and Morneau, players playing for other tribes now. Surrounding the stadium are statues to the famous and most important executives and players in the team’s history. Your team is your tribe, act and dress accordingly.

Redskins’ Name Issue Supported by Federal Courts, Again in the News

Redskins Trademark Case.

    
    The most interesting trademark case in sports involved the NFL Washington Redskins and that same issue is suddenly on the front page in 2013. In 1995, the Trademark Trial and Appeals Board (“T.T.A.B.”) canceled the six variations of “The Redskins” that had been filed on various occasions up to thirty years before. The basis for the cancellation was that the marks “ may disparage Native Americans or “bring them into contempt, or disrepute.” Harjo v. Pro-Football, Inc, 50 U.S.P.Q.2d 1705, 1749 (T.T.A.B. 1999) (“Harjo II”).  The appeal was heard in the United States District Court for the District of Columbia by Judge Colleen Kollar-Kotelly.  The Judge is careful to indicate that her decision does not settle the issue of whether those trademarks are disparaging but only decides the legal sufficiency of the TTAB’s decision and whether a laches (too much delay) defense is appropriate on the basis of the undisputed material facts.  The Court analyzed the standard to be used in deciding the case and settled upon the “substantial evidence” standard of the Administrative Procedures Act.  This proceeding required the examination of the parties’ motions for summary judgement, oppositions and reply briefs and applied evidentiary standards to the voluminous documentation in this case.  After doing so, the Court concluded that the T.T.A.B.’s decision must be reversed.    

    The decision is one that trademark practitioners should appreciate as the Judge requires that a stripping away of trademark rights is to deny the Plaintiff corporation the benefits of the Trademark Laws.  That this is not to be done lightly is the message sent by Judge Kollar-Kotelly in this case.

    The case that is discussed here is the appeal of a Trademark Trial and Appeal Board (“TTAB”) proceeding that ended trademark protection for the six marks that had been registered by the National Football League team of that name. The case was filed in September 1992 by Susan Shown Harjo and six other Native Americans to cancel the six trademarks because the word Redskins was “scandalous, may disparage Native Americans and may cast Native Americans in contempt or disrepute.” Pro-Football raised several affirmative defenses including First Amendment claims, Fifth Amendment claims, and that the claims, following registration by as much as twenty-seven years, was barred by the equitable doctrine of laches. Each defense was struck by the TTAB.  

    In reversing the TTAB, Judge Kollar-Kotelly methodically analyzed and dismissed each of the TTAB’s positions.  In her eighty-four page decision, she wields the Judicial sword with precision and renders a well hewn, thoughtful, and legally superb decision.
 
    The history of the Redskins as a team and as a trademark is very interesting.  The history is that the team began life in Boston as the Braves  and played in Braves Field where baseball’s Boston Braves played.  The name was changed in 1933 to Boston Redskins by the owner, George Preston Marshall, who had recently become sole owner as his partners dropped out. (How times have changed!) The name was in honor of the team’s coach, William “Lone Star” Dietz, a Native American.

    The team was moved to Washington in 1937 and began using the name “Washington Redskins” and other marks including “Redskinettes,” for its cheerleaders, in 1962.  The team then filed for trademark protection beginning in 1966 and acquired trademark protection for its marks over several years. All trademarks were renewed when appropriate, and, most significant to our purposes here, there were no objections filed at the time of the applications.  

    The first objection came in the form of the instant petition for cancellation. In granting the petition, the TTAB, after lengthy testimony, made two findings of fact.   First, there was the testimony of expert linguists and, second, survey evidence.  The documentation in both areas was voluminous, The most telling evidence from the experts was that “from at least the mid 1960s to the present, the word “redskins”has dropped out of written and most spoken language as a reference to Native Americans.” Morever, “since the mid 1960’s on, the word “Redskins” appeared only as a reference to Plaintiff’s football team.”  

    In discussing the rationale for its decision, the court carefully analyzes the standard to be used for its decision. It concludes that the findings of disparagement shall be reviewed de novo (from the beginning).
Having done so, the court then turns to the TTAB decision and the “ TTAB’s sporadic attempts at findings of fact.”  To make it easy for the reader, the decision discusses the evidence that convinced the TTAB to cancel the registration for thirty pages.  In reversing the TTAB,  Judge Kollar-Kotelly simply exposes the evidence to light and it disintegrates. For example, the linguistic testimony, as mentioned before, showed that Redskins was used only in reference to a football team and the survey results showed mixed evidence that was inconclusive, inadequate statistically, and indicated attitudes in the 1990’s, not the relevant period when the trademarks were first registered.  It is attitudes at the time of registration that are relevant, not attitudes in the late 1990’s. . The evidence used was inadequate for the result reported by the TTAB, but the Judge goes further by allowing the Pro-Football laches defense that the TTAB had dismissed.

     Laches is a very obvious equitable solution to this case. The defense was asserted by Pro-Football but was dismissed by the TTAB on the basis that a laches defense is unavailable in the context of a (Lanham Act) Section 2(a) petition for cancellation; particularly where “a public interest” is vindicated .

    The test for a laches defense was set out in the Courts Memorandum Decision of Dec. 11, 2000.” The doctrine of laches bars relief to “those who delay the assertion of their claims for an unreasonable time.”
  Laches is founded on the notion that “equity aids the vigilant and not those who slumber on their rights.” NAACP v. NAACP Legal Defense Fund, 753 F.2d. 131, 137 (D.C. Cir. 1985) There are three affirmative requirements. under the common law that are modified to fit the procedural posture of this case: (1)The Native Americans delayed substantially before commencing their challenge to the Redskins trademarks;  (2) The Native Americans were aware of the trademarks during the period of delay; and (3) Pro-Football’s ongoing development of goodwill during the period of delay engendered a reliance interest in the preservation of the trademarks.

    The Court characterized the case as “undoubtedly a ‘test case’ that seeks to use federal trademark litigation to obtain social goals.”Trademark Trial and The problem, however, with this case is evidentiary. The Lanham Act has been on the books for many years and was in effect n 1967 when the trademarks were registered. By waiting so long to exercise their rights, Defendants made it difficult for any fact-finder to affirmatively state that in 1967 the trademarks were disparaging.”   

    In this remarkable case, the rule of law has been applied to an important trademark case. We can rest assured that future decisions will be made according to the well established rules that govern the adjudication of intellectual property disputes, which should provide relief for the IP practitioner. .

Article Originally Published in the Trademark Journal.