The Red Wings' Trademark Case Against "Identitarians"

It is difficult not to talk about the absolute tragedy, disaster, or other-worldliness of the events in Charlottesville, VA. Plenty of smart people have weighed in on its implications and our President’s response. I won’t add to that dialogue. I am here to talk about Charlottesville and…trademark law.

As a Michigander, I was shocked to see a bunch of racists marching with the Detroit Red Wings’ beloved “Winged Wheel” on their little signs or shields.

Apparently, there is a group of “Identitarians” known as the “Detroit Right Wings” that “participant in regular activism related to the cause of preserving our people.” I am guessing this hate-group has no idea the famous “Winged Wheel” was created by a businessman, James E. Norrs, from (gasp) Montreal!

The Detroit Red Wings immediately shot back stating, “The Detroit Red Wings vehemently disagree with and are not associated in any with the event taking place today in Charlottesville, VA…The Red Wings believe that hockey is for everyone, and we celebrate the great diversity of our fan base and our nation. We are exploring every possible legal action as it pertains to the misuse of our logo in this disturbing demonstration.”

So, what can the Detroit Red Wings do when a bunch of no-good-white supremacists use their logo? Trademark law to the rescue!

Trademarks identify the source of goods or services. And trademark law prevents confusion in the marketplace between trademarks. For example, if Fred’s Coffee Depot was permitted to use a similar logo to Starbuck’s green goddess, consumers might be confused into buying inferior coffee. Trademark law prevents Fred’s Coffee Depot from using a similar green goddess, which attempts to eliminates confusion in the marketplace.

Unlike American citizens, not all trademarks are created equal. Some are strong and some are weak. And some are so strong that trademark law gives them special treatment. These are called “famous” marks. Famous marks are those marks “widely recognized by the general consuming public of the United States as a designation a designation of source of the goods or services of the mark’s owner.” This is a very high standard. But it is very likely the Detroit Red Wings’ “Winged Wheel” qualifies.

Because of its likely famous status, the Lanham Act prevents the “Winged Wheel” from being “diluted,” or more specifically, “tarnished.” In short, this is when an unauthorized use of a mark tarnishes the positive associations of the famous mark. As the Second Circuit stated, “[t]he essence of tarnishment therefore is…the displacement of positive with negative associations for the mark that…reduces the value of the mark to the trademark owner.”

So, when a porn site operates at <candyland.com>, a porn star wears a Dallas Cowboy uniform in an adult file, or a t-shirt uses BUTTWEISER, the CANDY LAND, DALLAS COWBOYS, and BUDWEISER marks are being tarnished.

And when these little men march around chanting about some delusional belief in what is being taken away from them, advocating for the murder of anyone different than them, and actually murdering Heather Heyer, they are tarnishing the “Winged Wheel.” I know this is petty compared to what is happening, but here’s the point.

The Detroit Red Wings should find these bigots and sue them. Not to protect a corporate asset. But to expose facts about these hate groups. Put their names in the public. Expose their beliefs for public consumption. Make these people defend themselves. Build a record of their hate. Litigate the case to a judgment. Set precedent.

Don’t let these cowards get away with it. That’s not Detroit’s style.

Eric Misterovich is a partner with Revision Legal, an intellectual property and internet law firm.

Photo credit: Mykal McEldowney/IndyStar