Nothing evokes fierce national pride or passionate support quite like sports. While there is little in the way of study of the evolution of sports as it relates to our evolutionary biology, it has been suggested that sports evolved as a ‘replacement’ for the hunting and survival skills and activities necessary for early human existence.
This theory is somewhat supported by an examination of the earliest known sports - running, wrestling and boxing. From there, sports evolved inline with various activities and cultures including a military influence.
It is almost impossible to separate the development of sports from the history and evolution of culture around the globe.
The Haka dance performed by Maori warriors both on the battlefield and at peace meetings in New Zealand is performed by the All Blacks team as they step onto their chosen field of battle today. The New Zealand women’s rugby team performed their own version in celebration of winning the Women’s Rugby World Cup. Haka play an important role in everyday lives and can be seen at many important functions including this emotional wedding. There are many Maori tribes and each have their own haka, bringing the legends and lore of their tribes into a modern day expression of fierce pride and unity. The power and passion of a haka is awesome to behold. And in more recent times, a copyright and trademark dispute has arisen over the commercial or public use of at least one variation of the haka.
The development of culture is not just about an expression of pride, of unity, of strength or of success. In some cases, a notable feature of the evolution of a group of people has been a less positive aspect comprised of challenges or difficulties and the response of those people to the challenges, judgements or discrimination that they faced. One such team that has come to attention of the media in recent times is the Washington Redskins.
Originally sited in Boston and known as the Boston Braves, the Washington Redskins were relocated and re-named almost 60 years ago. The renaming, including as it does a term which many Native Americans view as a slur, sparked strong feeling and in 1992, a representative group of Native Americans applied to cancel trademarks registered on foot of the renaming. Up until last year, the dispute raged on with decisions and appeals in progress. So what changed last year?
A band called ‘The Slants’ had a trademark application refused under the same clause that caused difficulty for the Washington Redskins - known as the disparagement clause. The Supreme Court upheld their right to register the trademark and cast a long shadow on the disparagement clause. Consequently, the group of Native Americans dropped their case against the Washington Redskins.
These days, virtually all sports are big business. The running of teams, the provision of facilities and equipment, providing sports people with the time to train amongst a host of other reasons, all require money. The commercialisation of sports then becomes a necessary part of sporting success.
Whether you support the view that a particular group of people ‘owning’ a previously disparaging slur by virtue of taking control of it in an empowering manner or not, the truth is that our sporting endeavours (and indeed our artistic ones also) are indivisible from our culture, local or national, our histories, our shared experiences, our beliefs or our considerations about who we are.
While effectively over-turning the disparagement clause empowers many people to register trademarks that might previously have been deemed unacceptable, it does little to clarify the deeper issue of who any significant part of our culture should properly be enabled to take ownership of in a commercial sense, who should be permitted to ‘profit’ from which parts of any given culture and who should be beneficially excluded from those profits.
The area of intellectual property as it relates to sporting endeavours of all kinds is a fascinating one, including as it does a host of considerations which may not apply in other commercial areas. Check out our webinar “Fair Play - Branding In The World Of Sports” hosted by Luka Jelčić from Zivko Mijatovic & Partners, Philipp Strommer from Grünecker and Judith Soto from TrademarkNow.