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THE ‘EDMONTON ESKIMOS’ BRAND WILL BE CHANGED: IS IT JUSTIFIED?

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It’s official: Edmonton's Canadian Football League team will discontinue the use of the word "Eskimo" in the team's name (1). The team's current name has been criticized as insensitive or even racist.

What’s the problem?

Upon hearing the news, I was somewhat taken aback. You see, I am rather a fan of the CFL. In the East I cheer for the Montreal Allouettes (my home town). In the West, I cheer for the Saskatchewan Roughriders (my father’s home town). This has been the rule for decades of my life. And during all those years I have I never considered the word “Eskimo” to be derogatory. And I can’t remember ever hearing it used in a negative way. After all, doesn’t the word “Eskimo” refer to one of the hardiest peoples in the world? I mean, they occupied and survived eons in one of the toughest climates on earth. How does one not feel anything but respect and awe for such a people?

So I admit, the issue of changing the “Edmonton Eskimos” trademark/name, hit me in a strange way. It confronted my pre-established truths. No doubt countless fans and even players of the team were struck in the same way (2).

But upon reflection, and as I was doing my research, it occurred to me that although the word may not be offensive to me, it might be offensive to those it referred to: The Inuit!

 

Where did the word come from?

The origin of the word Eskimo is uncertain. Some scholars claim it derived from the Ojibway language (still spoken today) meaning "eaters of raw meat”. Others claim it means “one who laces snowshoes”, some mid-century anthropologists suggested that the word came from the Latin word excommunicati, meaning the excommunicated ones because the native people of the Canadian Arctic were not Christian. (3)

As interesting as the etymological origin may be, what matters presently is that the Europeans, who first exchanged with the Inuit, did not ask them what they thought. They just decided this was the word to use, just like they decided so many other matters, like imposing their way of life and religions. For well over the last century, this issue took a back seat to more pressing concerns, namely survival in a very harsh environment. It is only since achieving a greater sense of security and self-awareness that it became a topic of concern and a cultural demand for the Inuit.

This being said, it is clear in my mind that the adoption, in 1911, of the ‘Edmonton Eskimos’’ brand by the Edmonton Football Team was done with respect for the “Eskimo” peoples. However, the world has changed and good intentions are no longer sufficient. The perception of cultural groups can no longer be ignored in the face of recent and sweeping societal changes.

One testimony I read that struck me is the following:

An Inuit named Arnaquq-Baril recalled a conversation she had at the dinner table with her mother about this topic (the Edmonton Eskimos)."For my mother, and for others, it [brings] up all kinds of awful memories," she said. "When a non-Inuk would come to the door of the house, we would often rush and hide the raw food out of shame, because they were so bullied and teased for being eaters of raw meat." (4)

So the word “Eskimos” is a problem

The owners of the Edmonton Eskimos had decided as early as last January, not to change their name. It is only recently, and after renewed consultations, that they changed their position and concluded that their brand was contentious. It would have been better if they hadn’t waited so long. But after the last few months, the pressure from the public (5) and also from sponsors (6) suddenly became too strong. Businesses are clearly not immune to social upheavals. (See our earlier article regarding the Washington Redskins® football team (7)).

Perhaps, with the help of branding experts, this event may even be given a positive spin: new fans and consumers could very well embrace the change if the new brand is chosen with respect of modern social realities.

In the meantime, the club intends on using the names “EE Football Team” and “Edmonton Football Team” until a new name is found.

Sources:

(1)    https://www.cbc.ca/news/canada/edmonton/edmonton-cfl-team-name-1.5657661

(2)    https://www.cbc.ca/sports/football/cfl/edmonton-cfl-team-name-former-players-1.5658486

(3)    https://www.thecanadianencyclopedia.ca/en/article/eskimo

(4)    https://www.cbc.ca/news/canada/north/inuit-reaction-edmonton-cfl-team-name-change-1.5658904

(5)    https://edmontonjournal.com/news/local-news/edmonton-eskimos-face-backlash-on-twitter-as -calls-for-name-change-rise

https://edmontonsun.com/sports/football/cfl/edmonton-eskimos/inuit-leader-natan-obed-thankful-over-decision-to-drop-eskimos-name

(6)    https://www.cbc.ca/news/canada/edmonton/edmonton-cfl-team-name-1.5657661

(7)    https://rsgmarques.ca/blogue/Washington Redskins

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THE WASHINGTON REDSKINS®, AUNT JEMIMA®, UNCLE BEN’S®, ESKIMO PIE®: Famous Brands that are No Longer Tolerated

After decades of criticism that they perpetuated racial stereotypes, owners of famous trademarks are taking steps to bring changes and even replace them!  In particular:

-        The Washington Redskins® (American football team and licensed merchandise)[i]

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-        Aunt Jemima® (in particular pancake mixes and syrups) [ii]

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-        Uncle Ben’s® (for rice) [iii]

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-        Eskimo pie ®(ice cream confections) [iv]

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It must be remembered that these well-known brands each have a market value of many millions of dollars. Clearly it is not with happy hearts that their owners have decided to make such important changes. After years of hesitation, these companies seem to have been prompted by the unprecedented strength of the “Black Lives Matter” movement, that resulted from the criminal assassination of George Floyd in the city of Minneapolis, United States. Not only must these brand owners contend with pressure from their consumers, but in the case of the Washington Redskins, much demand for change has come from corporate sponsors 5.

LEGAL ISSUES

Is there legal recourse available to force the owner of a possibly racially prejudicial brand to cease using it or to have it significantly changed? Freedom of expression in Canada is protected as a "fundamental freedom" by Section 2 of the Canadian Charter of Rights and Freedoms. The Charter also permits the government to enforce "reasonable" limits such as hate speech, obscenity, and defamation as being categories of restricted speech in Canada. Hate speech can be defined as "public speech that expresses hate or encourages violence towards a person or group based on something such as race. It is also thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, colour, or national origin. The Criminal Code contains a provision against hate crimes (s. 319). As for the word “obscene”, it is generally defined as something that is offensive or disgusting by accepted standards of morality or decency; or offensive to the senses.

Hence, would it be possible to argue that the term “REDSKINS” is or has become at least obscene under current social and moral standards?

The question can be extended to Trademark Law. Paragraph 9(1)(j) of the Canadian Trademarks Act prohibits the adoption of any trademark consisting of, or so nearly resembling as to be likely to be mistaken for, any scandalous, obscene or immoral word or device. In examining a trademark in respect of paragraph 9(1) (j) Canadian trademark examiners may be guided by the following:

  • A scandalous word or design is one which is offensive to the public or individual sense of propriety or morality, or is a slur on nationality and is generally regarded as offensive. It is generally defined as causing general outrage or indignation.

  • A word is obscene if marked by violations of accepted language inhibitions or regarded as taboo in polite usage. This word “obscene” is generally defined as something that is offensive or disgusting by accepted standards of morality or decency; or offensive to the senses.

  • A word or design is immoral when it is in conflict with generally or traditionally held moral principles, and generally defined as not conforming to accepted standard of morality.

In order to determine if a trademark is scandalous, obscene or immoral, examiners must determine whether the trademark would offend the feelings or sensibilities of a not insignificant segment of the public.

In the case of Miss Universe, Inc. v. Bohna (1991), 36 C.P.R. (3d) 76 (T.M.O.B.) [affirmed (1992) 43 C.P.R. (3d) 462 (F.C), and reversed for confusion (1994), 58 C.P.R. (3d) 381 (F.C.A)] the judge states at 82 of the decision:

I must say that at present we live in what is commonly called a “permissive age” were previously accepted moral standards are undergoing change. The difficulty is to determine what are acceptable standards today and what would still be considered immoral, scandalous, or obscene by some people by no means few in number.

Hence, could it be argued that the word “Redskins” is or has become scandalous or immoral IN Canada pursuant to Section 9(1)(j) of the T.A.?  

While the legal questions are interesting, the fact remains that it is consumers' perception of a brand that is the main force behind the future changes of the well-known brands named above.

FUTURE BRANDS

What will the above listed famous brands be replaced with? Hard to say at the moment. What is certain is that the advertising, marketing, and legal costs will be enormous in order to ensure the best possible transition. The changes will require: 1) Choosing an appealing brand taking into account foreign languages where the brands are used; 2) Making sure the new brand is not confusing with any existing trademarks. Thus the need to conduct availability searches in every jurisdiction where the goods are sold; 3) Making sure the various domain names are available; 4) Proceed to register the trademark in every relevant jurisdiction; and 5) Launch a lengthy and surely expensive marketing and advertising campaign.

For future brand owners, this situation should serve as a reminder to direct their investments in brands that are respectful of dominant social and moral values.

Big Changes Coming to the Canadian Trademarks Regime

Dear clients and friends,

Next June 17th, will see the coming into force of a vast range of amendments affecting the Canadian Trademarks Act. The following is a brief outline of what those changes are. There are some points that could potentially offer advantages to your businesses (look for the " * " symbol below). For more information or to discuss how these changes affect your business, please do not hesitate to call. Thank you.

1)    Protection of non-traditional marks (*)

Colour, smell, taste, texture, holograms, three-dimensional and moving images: Any of these can now be the object of trademark registrations, under certain conditions.

2)    No requirement to claim use or proposed use (*)

There is no longer a need to mention if the applied for trademark is used or not; It will become more important to be the first to file.

3)    No more declarations of use (*)

It will no longer be required to produce a declaration of use for trademarks, thus shortening registration issuance for applications based on proposed use.

4)    Extra fees for each class of goods or services

Currently, the filing fee is $250 regardless of the range of the goods or services claimed. This will change. It will be required to pay $330 for the first class of goods or services and $100 per additional class, among the 45 classes covered by the Nice Agreement.

5)    Objections based on lack of inherent distinctiveness

It is believed that this change will likely lead to more substantive objections raised during examination than in the past.

6)    Divisional applications (*)

This may be advantageous if the application faces examiner reports or oppositions, or if the applicant wished to assign a portion of the goods or services to an assignee.

7)    Term change from 15 to 10 years

Registrations will be issued for a shorter period, more in line with the rest of the world.

8)    Renewal fees increased

Based on the Nice Agreement, it will be necessary to pay $400 for the first class of goods or services and $125 per additional class that is covered by the original registration.

9)    Simplified assignment registration (*)

When recording an assignment, it will no longer be necessary to file a confirming document, unless required by the assignee.

10) International registrations made easier (*)

By joining the Madrid Protocol, Canadians now have access to an international registration covering as many as 116 jurisdictions worldwide.

Please do not hesitate to contact should you have any questions. Thank you.

Richard S. Gareau