Among the multitude of shocking and disturbing scenes from this weekend’s Unite the Right rally in Charlottesville, Va., was the image of protesters carrying signs that appeared to include the logo of the Detroit Red Wings. After the image spread widely on social media, the team quickly issued a statement condemning the events:
“The Detroit Red Wings vehemently disagree with and are not associated in any way 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.”
The group using the logo is a Michigan-based organization calling themselves “the Detroit Right Wings.” They are a right-wing, anti-immigrant group whose proponents include well-known white nationalist Richard Spencer.
The logo used appears to be nearly identical to that used by the Red Wings, but upon closer examination, the wheel portion of the logo uses a pattern that is similar to the Nazi “SS” symbol.
The team stated that it would seek all available remedies, and the NHL quickly echoed that sentiment. If the team files suit for infringement, it will likely prevail.
To state a claim for trademark infringement under the Lanham Act, 15 U.S.C. Section 1114(1), the team must show three elements: (1) a valid and legally protectable mark; (2) ownership of the mark; and (3) the defendant’s use of the mark to identify goods or services causes a likelihood of confusion.
As to the first and second elements, the team, via Detroit Red Wings Inc., owns the trademarks to the winged wheel logo, the “Detroit Red Wings” name and with various other ancillary marks associated with the team.
Registration is prima facie evidence of ownership, and there is likely little dispute that the origins of the logo and name lie with the team.
An infringement claim would turn on whether there is a likelihood of confusion. Likelihood of confusion is found when a consumer viewing the mark would probably assume that the product or service it represents is associated with the source of a different product or service identified by a similar mark. See, e.g., Ford Motor Co. v. Summit Motor Products Inc., 930 F. 2d 277, 292 (3d Cir. 1991). This analysis requires assessment of numerous factors.
The most important factor is the degree of similarity of the marks. Here, the subtle differences in the logo do not overcome the substantial similarity. Only a close examination of the designs reveals any noticeable difference.
The strength of the owner’s mark is also an important consideration. Here, the team has a long history with the winged-wheel logo, which is well known and obviously associated with the franchise. The team has built up goodwill associated with the mark, and this organization clearly intended to capitalize on that.
Courts will also look at defendant-specific factors as well. In this instance, the length of time that the group has used the logo without evidence of actual confusion is short. The group has not been in existence long, at least relative to the team, and once its use of the mark gained notoriety, the confusion was evident.
To that end, evidence of actual confusion also cuts against the organization’s use of the logo. A cursory review of Twitter mentions when the image was discovered suggests confusion. People immediately asked why the team’s logo was being used in association with the protest, necessitating the team’s swift response in opposition to such use.
There are some factors that would, however, tip in favor of a finding of noninfringement. In this case, the products and services being offered (if espousing white nationalist ideals can even be considered a service) are not similar at all. While use of the logo certainly raised questions, it was unlikely that anyone truly associated the protesters with the team itself.
Further, when the products and services offered are vastly different, as is the case here, the degree of similarity required to prove infringement is higher. On the other hand, courts will not shy away from a finding of infringement in the most obvious of circumstances just because the goods and services are completely unrelated. See, e.g., Rolls-Royce Motor Cars Limited v. Davis, 118 USPQ 1581 (D. N.J. 2016) (finding that rapper using the name “Rolls Royce Rizzy” infringed upon car manufacturer’s trademark).
The white nationalist group could also potentially rely upon the parody defense if the team sued for infringement. While certainly not parody in the humorous sense, arguably, the group could contend that the variances in the design and use thereof were intended for a satirical purpose.
The parody defense would be viewed in context of the overall likelihood of confusion analysis.
The team clearly has a vested interest in protecting the goodwill it has built over decades of using the famed winged wheel logo along with its name and was assuredly dismayed to see the use of this design in association with hate speech and violent protests.
Monetary damages might be hard to quantify, but it’s easy to see how this could cause casual fans to shy away from association with the logo. There is also value in pursuing injunctive relief to prevent future use of the team’s trademarks.
The fallout from the events in Charlottesville will carry on for a long time to come, and one of the groups protesting is now likely to find itself on the losing ending of a court battle over the use of a hockey team’s logo.
At minimum, a lawsuit would serve as a symbolic gesture of opposition the abhorrent rhetoric and behavior displayed at this weekend’s events.