WestlawNext Canada insight Blog

Offensive trade-marks, corporate speech, and the balance of convenience: revisiting Cardinal v. Cleveland Indians

In light of today's announcement that the Cleveland Indians baseball team will remove their "Chief Wahoo" logo from their uniforms in 2019, many news stories are recalling Douglas Cardinal's 2016 application, ultimately rejected, for an interim and interlocutory injunction enjoining the Cleveland Indians Baseball Company, Major League Baseball and Rogers Communications from displaying or broadcasting the "Indians" name and "Chief Wahoo" logo within Canada.

The decision is Cardinal v. Cleveland Indians Baseball Co. Limited Partnership, 2016 ONSC 6929.

 

The application was heard by the Ontario Superior Court on October 17, 2016, the same day as the first game of the American League Championship Series between Toronto and Cleveland.


The court dismissed the application, stating:

75      [T]he balance of convenience favours the respondents.
76      … As noted, the very late nature of this application, if granted, will cause material prejudice to the respondents. … The record before me discloses that the effects would be profoundly negative.

79      I am sensitive to the argument that Mr. Cardinal and other Indigenous persons, who find the Name and Logo offensive, may feel harmed by the broadcast of the Name and Logo to a record number of viewers during the ALCS. However, I am of the view that the remedies sought would only have very limited value since they would not bind other media broadcasting the Name or Logo in Canada, nor would it prevent fans, who would undoubtedly be part of the broadcast, from wearing team apparel displaying the Name and Logo.
80      The totality of these factors significantly tips the balance of convenience in favour of the respondents, particularly where Mr. Cardinal has the ability to pursue his application for discrimination, which could include a claim for damages, in the Human Rights Proceedings.

A digest of the decision follows:

 

Applicant, Indigenous person, applied to Canadian Human Rights Commission and to Human Rights Tribunal of Ontario seeking orders enjoining respondents from displaying broadcasting, communicating or otherwise disseminating images, representations, depictions or descriptions using name "Indian" or any form thereof in relation to Cleveland Indians baseball team and "Chief Wahoo" logo within Canada — Applicant claimed that use of name and logo constituted discrimination and harassment against applicant on grounds of race, ancestry, colour, ethnic and national origin in offering of services, namely provision of professional sports entertainment — Applicant applied for interim and interlocutory injunction enjoining respondents from using or displaying or broadcasting name or logo — Application dismissed — Applicant failed to establish that he would suffer irreparable harm — Both Ontario Human Rights Code and Canadian Human Rights Act provided damages with respect harm applicant claimed to have incurred due to discrimination — While applicant deposed he could not experience American League Championship Series without experiencing affront to his dignity, this had been ongoing for years and did not constitute evidence of irreparable harm during time frame between hearing of application and human rights hearings so as to invoke court's extraordinary equitable jurisdiction — Application was raised at last minute and applicant offered no explanation for delay — Application sought to change status quo that had been in place for many years and last minute application would materially prejudice respondents. — Balance of convenience favoured respondents — Given lateness of application, if injunction was granted it would cause material prejudice to respondents — Effects would be profoundly negative, as last minute changes included significant alteration to signage, scrapping pre-recorded graphics, forcing Cleveland team to endure considerable distraction at very important time, and implementing limitations on broadcast — Damages suffered by respondents would be irreparable, as there was no undertaking as to damages or ability to pay — Remedies would be limited, as it would not bind others from using name or logo.

 

 

For the relevant news story about the decision to ultimately remove the logo in 2019, see the following story from Reuters: https://ca.reuters.com/article/canadaSportsNews/idCAKBN1FI2DX-OCASP

© Copyright WestlawNext Canada, Thomson Reuters Canada Limited. All rights reserved.