Chief Wahoo Pulled from Indians Rotation, But Don’t Expect Similar Changes to Redskins’ Depth Chart

In January, the Cleveland Indians announced that beginning in 2019, the professional baseball team would be retiring its logo, Chief Wahoo, from use on team uniforms or banners and signs at Progressive Field, the team’s stadium. ¹ This move comes after years of pressure from advocacy groups, pressure from the commissioner of Major League Baseball, and attempts to enjoin the use of the trademark. ² Chief Wahoo’s swan song is set for the coming season as the team will continue to use the logo on its uniform through 2018, before being replaced by a “C” logo. ³ The Indians have stated that they intend to maintain the registration of the trademark for Chief Wahoo and will continue to sell merchandise with the logo in the Cleveland market. ⁴

Native American advocacy groups have responded positively to the change, but have called for further action, including changing the team’s name. ⁵ While a name change is viewed as being unlikely for the team, it is not unprecedented. In 1997, Miami University, located just three hours southwest of Cleveland in Oxford, Ohio, changed its mascot from the Miami Redskins to the Miami RedHawks and from a Redskin logo to a stylized “M.” ⁶ Although the Miami Redskins trademark has not been used by the school in more than twenty years, one needs only attend a basketball game at Millett Hall to hear older alumni shouting, “Let’s go Redskins,” as the change was met with disappointment from some fans. ⁷ The school, however, has not looked back since the change.

Meanwhile, the Washington Redskins have made it clear that they have no intention to change any part of their intellectual property, much to the frustration of critics. The Redskins, part of the National Football League, have been the subject of controversy as actions have been brought to cancel their registration of the Redskins name and mark. In 1992, a group of Native Americans petitioned the Trademark Trial and Appeals Board (TTAB) to cancel the Redskins trademark registrations. ⁸ In 1999, the TTAB granted their petition and cancelled the registrations, but this decision was reversed in 2003 by the District Court for the District of Columbia for insufficient evidence of the marks’ disparagement and a finding of laches barring the suit. ⁹ In 2014, the TTAB again granted a petition to cancel the Redskins’ registrations, this one filed by a younger group of petitioners, so as to avoid a laches defense. ¹⁰ On appeal, the District Court for the Eastern District of Virginia surprisingly entered summarily judgement affirming the TTAB’s decision. ¹¹ The Redskins appealed to the Fourth Circuit, which stayed the case until a ruling was issued in Matal v. Tam. ¹²

The impact of Matal v. Tam has been felt far beyond that case in the months since its decision. In Matal, the Supreme Court held that the Lanham Act’s prohibition on registration for disparaging and derogatory trademarks was an unconstitutional violation of the Free Speech Clause of the First Amendment. ¹³ In allowing the registration of “The Slants,” despite its usage as a derogatory term for Asian persons, the Court advanced the quintessentially American belief that speech should not be prohibited simply because it expresses offensive ideas – even with the increased legitimacy added by a governmentally recognized trademark. Following this holding, it was unsurprising when the plaintiffs in Blackhorse dropped their suit soon after the Matal decision. ¹⁴ Consistent with Matal, the Redskins would clearly have prevailed had the litigation continued.

With continued litigation no longer an option for critics to prevent registration of disparaging marks, the Cleveland Indians’ voluntary decision to move on from Chief Wahoo signals a shift in momentum in the fight against disparaging marks. So why should the public expect no change from the Redskins? Dan Snyder, owner of the team, stated in 2013 that, “we will never change the name of the team . . . we’ll never change the name. It’s that simple. NEVER – you can use caps.” ¹⁵ And while the Indians faced pressure from the MLB Commissioner, NFL Commissioner Roger Goddell stated that there would be no such pressure from him for the Redskins to follow suit, pointing to a 2016 Washington Post poll indicating that nine out of ten Native Americans support the Redskins name. ¹⁶ It appears that for the foreseeable future, Washington’s football team will continue to use its controversial marks. But should Snyder seek to make a change, he can seek the wisdom of Miami University, which took to Twitter in 2014 to tell the team, “if you need help finding a new name just let us know. #RedHawks.” ¹⁷