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Major Tuddy’s Major Trademark Issue

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By: Kelton McLeod

On January 1st, 2023, the Washington Commanders unveiled a new mascot, Major Tuddy, a tall humanoid hog, wearing a military-inspired helmet and a perpetual grin. The unveiling has gone over with a healthy mix of derision and confusion, just about as well as anything one would expect to come from the Dan Snyder-owned Commanders. While even casual football fans might understand that Major Tuddy is named after the slang term for a touchdown, some are confused why the Washington, D.C.-based football team would want a hog to be the new symbol of their organization, while others are filing a trademark lawsuit because of it. 

From the 1980s and into the 1990s, Washington had the best offensive line in all of professional football. These men, including the likes of Joe Jacoby and Mark May, were known as The Hogs. The Hogs were, and remain, an important piece of Washington’s history, helping the team win its only three Super Bowls. But despite bursting onto the scene through a sign emblazoned with “Let’s Get Hog Wild,” Major Tuddy has not had many fans, players, or former players very excited. 

Instead of being a triumph at the end of a lackluster season (the Commanders were eliminated from playoff contention the day Major Tuddy was revealed), Major Tuddy has proved to be yet another point of controversy for the Commanders Organization. In fact, some of the original Hogs, including the likes of Joe Jacoby and Mark May, are so unenthused with the new mascot that they issued a statement prior to Major Tuddy’s announcement distancing themselves from Dan Snyder (the Commanders current majority owner) and referencing potential legal action related to this new Hog. The members of the original Hogs (joined by John Riggins, Fred Dean, and Doc Walker) created O-Line Entertainment, LLC,  and in July of 2022, O-Line Entertainment filed trademark applications to the federal register for ‘Hogs’ and ‘Original Hogs,’ as the terms relate to professional football paraphernalia and merchandise. O-Line Entertainment sees Major Tuddy as a potential infringement on their mark, an outright attempt to capitalize and commercialize on the work of the Hogs of the 80s and 90s, and an attempt to confuse the fans. 

While the Commanders imply they have no intention to financially capitalize on Hogs as a mark, O-Line Entertainment has a real shot at being able to exclude the Commanders from even trying. The Lanham Act §43(a) creates a statutory cause of action for trademark infringement, where “any person who . . .uses in commerce any word, term, name, symbol, or device, . . . likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person . . . shall be liable in a civil action by any person who believes that he is or is likely to be damaged by such act.” Trademarks exist to help consumers identify the source of a good. So, if someone attempts to use another’s mark, or something substantially similar, to cause confusion as to the source or sponsorship of a good, that party is liable for trademark infringement. In this case, it is hard to refute the source of Major Tuddy’s swine heritage, as even his official team profile references the offensive line from the 80s and 90s. O-Line Entertainment would just need to prove that the likelihood of confusion exists between their products and those of the Commanders organization, not that actual confusion has occurred. Under current law, there is a prospect of O-line Entertainment doing so.

While O-Line Entertainment’s trademark registration has yet to be granted, and the Commanders organization could attempt to invalidate it, this likely would not be worth the problems it would cause. The Commanders are already in the midst of a Congressional investigation, and Dan Snyder’s time as owner might not be able to handle the bad press. While it is hard to expect Dan Snyder and the Commanders leadership team–a group known for trying and failing to hide behind the best parts of their team’s legacy–to handle themselves in a morally upstanding way, how they choose to handle the marketing and merchandising of their new mascot could mean another long and protracted trademark dispute where they lack the moral high ground.  

Tough to Watch: Assumption of Risk in the NFL

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Photo by Pixabay on Pexels.com

By: Kelton McLeod

On January 2nd, 2023, during a primetime Monday Night Football matchup between the Buffalo Bills at the Cincinnati Bengals, Bills’ safety Damar Hamlin collapsed after being struck in the chest during a routine tackle.  Bills’ medical staff rushed to the field, where assistant athletic director Denny Kellington performed CPR for nine minutes after it was discovered that Hamlin had no pulse. Kellington’s actions likely saved Hamlin’s life, as Hamlin had suffered from a severe cardiac arrest. National Football League (NFL) officials responded in the immediate aftermath of the episode by suspending play in the still ongoing football game (Hamlin’s collapse happened with less than six minutes left in the first quarter), before outright canceling the match on Thursday January 5th. The reasons cited for not replaying the match at a later date were all related to a lack of a large impact on who would be playing in the upcoming NFL Playoffs and were unrelated to Hamlin’s current medical status.

In the days that have followed, Hamlin has continued to receive intensive treatment, but his recovery is looking more hopeful by the day. In fact, doctors report that after regaining consciousness one of Hamlin’s first questions was wondering who had won the much-hyped matchup. The NFL, and the larger professional sports world, have banded together around Hamlin, and it has been an incredibly touching display community in the face of potential tragedy. But the episode also draws attention to the larger issue of liability for injuries in professional sports. 

While an on-the-job injury at a more “normal” job with a low risk of injury, and almost no risk of death, would likely lead to a suit seeking to recover damages for the injury and its consequences, Football remains different. The kind of injuries like the one Hamlin suffered remain an “inherent risk” to the sport, and players take on an assumption of that risk in choosing to play football. In Morgan v. Kent State Univ. (2016), the risks inherent in an activity are those that are “foreseeable, common, and customary” to an activity. Certain risks “are so inherent in some activities that they cannot be eliminated, and therefore a person participating in such activities tacitly consents to the risks involved.”  It is foreseeable, common, and customary to be tackled or to tackle another in professional football, and as anyone who watched the replay might be able to see, the tackle is nothing out of the ordinary. Hamlin, therefore, would be hard-pressed to assign any potential injury liability to the NFL, the Bengals, the Bills, or Tee Higgins (the player who he was tackling), because Hamlin assumed the risk that he might be injured throughout the normal course of the game. This is further exemplified by Avila v. Citrus Community College Dist. (2006), where the court stated that “the football player who steps onto the gridiron consents to his opponents hard tackle.” Hamlin, by playing Football, consented to being hit in the chest during a tackle. While the result of said tackle was unlikely and harrowing to say the least, the risk of that outcome was assumed. Leagues like the NFL try to strike a balance between encouraging players to go out and give their all in any given match, and remain safe while doing so, and the balance always appears to be lopsided to giving it their all. 

Hamlin’s injury occurred during a routine tackle; it was an example of the medical phenomenon commotio cordis, where blunt force trauma hitting the chest at just the wrong moment can cause an irregular and dangerous rhythm. This was an unlikely outcome to a standard play, but it was not an impossible outcome. Hamlin’s cardiac arrest is nowhere near the first injury that has grasped the attention of the public, and it is likely not going to be the last. The NFL itself has had a history with high profile catastrophic injuries, and deaths that have resulted in part due to trauma related to playing professional football. And these injuries extend far beyond Hamilin (or the high-profile concussion settlement of the 2010s). The National Center for Catastrophic Sports Injury Research keeps records of football fatalities and catastrophic injuries going back decades, related to professional and amateur football. Between 2016-2021, 140 catastrophic injuries to football players were reported across experience levels, while in 2021, 20 football related deaths were reported. 

Players are aware of the potential risks of football, but that does not stop the Monday Night Football incident from being a wakeup call. Tennessee Titans linebacker Dylan Cole after the incident said that “[he] always said [he] signed on the dotted line, so [he] understands what [they]’re getting into” but that does not stop the hit from being “tough to watch” and a “reminder to the world of how precious life is and how absorbed we can get into things that really, truly don’t matter.” 

While this incident ends in a fairytale fashion, with the world surrounding Hamlin in love and support, and Hamlin offering words of support to his fellow Bills players, there’s no guarantee that the next public injury ends the same way. And when it comes, because it will come, it is the player, and not the league, who remains on the hook for the injury.