On August 5, 2005, the National Collegiate Athletic Association introduced its plan to end the use of Native American mascots, nicknames and imagery. Schools were required to change their offensive nicknames and mascots and were forced to stop using trademarks bearing Native American imagery. The NCAA ban presents the question of whether schools affected by the ban can bring a trademark action against the NCAA. One interpretation of trademark law provides a school with no redress because the NCAA has not created a competing mark. However, the other interpretation of trademark law provides a school with a valid trademark claim against the NCAA because the ban substantially harms the goodwill, investment, and reputation a school has in its trademark. This comment evaluates those two interpretations as applied to the NCAA Native American ban, and proposes that courts adopt the second interpretation because of the unfair restraints the ban imposes on a school’s established trademark.
Ian Botnick, Honoring Trademarks: The Battle to Preserve Native American Imagery in the National Collegiate Athletic Association, 7 J. Marshall Rev. Intell. Prop. L. 735 (2008)