Should Racially Offensive Marks Be Registrable, Or Even Allowable, In Commercial Contexts? Presented by: Dr. Craig Date: 18 March 2023 Overview - Meanwhile in Canada: MLB v Cardinal • The Problem • The statement • Logo • Controversial Speech Should Racially Offensive Marks Be Registrable, Or Even Allowable, In Commercial Contexts? When and on what basis might we invoke the law to restrict, or even restrain, their commercial usage (if at all)? Cardinal v. Cleveland Indians - Prominent indigenous activist, Douglas Cardinal filed applications seeking injunction against the team, Major League Baseball and Rogers Communications to prevent the use of the Cleveland Indians team name and mascot as offensive and discriminatory. Rogers Statement - "It would be virtually impossible" to broadcast the game and not have people see the team's name or logo." - "We understand that the Cleveland name and logo is a concern for a number of Canadians. The playoff series...is also significantly important to millions of passionate baseball fans across Canada. Punishing these fans by blocking the broadcast of the games doesn't seem like the right solution." Cardinal's Statement: - Cardinal's lawyers had argued he should be able to watch the game "like every other person in Canada, without suffering from racial discrimination" - Cardinal said in a statement that he was "deeply disappointed" by the court's ruling. - "I hope that, one day, the Cleveland team's ownership will realize that its racist name and logo has got to go - entirely," he said. More than a Logo - "That this kind of discrimination is not a violation of human rights underscores the challenge Indigenous Persons of North America continue to face." - "It's much deeper and more profound than a logo being offensive. It's really an indicator of why that relationship (between First Nations peoples and society at large) is so flawed. Because there's this lack of recognition of what the true conditions of native peoples have been over the last 500 years." Controversial Speech - Lisus (lawyer for the team) • "Make no mistake, you are being asked to censor constitutionally-protected activity. What we are here today about is controversial speech." - MLB lawyer Markus Koehnen said the Cleveland team has "a registered trademark" and the "right to use it throughout Canada." - "Reconciliation begins with respect for one another and acknowledgement that indigenous peoples are people - not cartoon mascots ... Reconciliation requires hard work. Ditching race-based indigenous sports teams' names is comparatively easy." Cardinal v Rogers et al. (HRTO 2017, aff'd Jan 2018) - Rogers...submitted that this Application does not relate to human rights issues but instead to trademarks issues. As a result, they submitted that the applicant must seek relief under the Trade-marks Act in Federal Court. - "What is granted by the TMA is exclusive use of a trade-mark, not a positive right to use a trade-mark.... This right is not immune from both federal and provincial laws of general application."