Why the University of North Dakota is still selling merchandise with banned Fighting Sioux logo

The University of North Dakota has changed its nickname from the Fighting Sioux to the Fighting Hawks, but, in an odd twist in trademark law, the school must continue to sell items with the old logo, which many people find offensive.
In this Nov. 9, 2010, file photo, the University of North Dakota's Fighting Sioux logo hangs on Ralph Engelstad Arena in Grand Forks, N.D. The school adopted the nickname the Fighting Hawks on Wednesday, Nov. 18, 2015, to replace the Fighting Sioux. Students across the United States are pressuring their colleges to update mascots, mottos and building names that they say are insensitive. (Dave Kolpack/AP)
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They have a new school nickname, but the University of North Dakota are still selling merchandise with their same old objectionable logo.

In 2005, the National Collegiate Athletic Association banned schools from using American Indian team nicknames and logos. The University of North Dakota was then known as the Fighting Sioux, a name the NCAA found hostile and abusive.

In an Oct. 22, 2012 file photo, sign company employees remove the letter S from the word Sioux as the signage proclaiming Ralph Engelstad Arena in Grand Forks, N.D. "Home of the Fighting Sioux" is taken down, part of an agreement between the State of North Dakota and the NCAA over the University of North Dakota's use of the Fighting Sioux nickname and logo. (The Grand Forks Herald/John Stennes/AP)

University of North Dakota eventually dropped the Fighting Sioux name and logo and its teams are now known as the Fighting Hawks. But earlier this month, the school launched a sale of merchandise with its old Sioux logo. The same logo and name that was deemed offensive 10 years ago.

University spokesperson Peter Johnson (LinkedIn)

"I'm not saying that I think it's logical. In fact, it's a catch-22. There's no question about it," university spokesperson Peter Johnson tells As It Happens host Carol Off. "Nevertheless, it's the one that we're in."
He says that in 2007 the university took the NCAA to court after the school logo was deemed offensive to American Indians. He argues that the settlement reached at the end of those proceedings, however perplexing, is the reason why the university continues to sell the banned merchandise.

University of North Dakota freshman Nick Carlson smiles over his haul of UND Fighting Sioux gear. Most of the items sold out in one day. (Marlys Lord Carlson/AP)
"Part of the stipulation of that settlement is that we have to make sure we don't abandon the image and our legal counsel tells us that the only way to make sure we don't do that is to actually make some kind of commercial use of it," Johnson says. "Under trademark law, if you're not making some kind commercial use out of your marks, you risk losing them."

Buck Striebel holds up a University of North Dakota Fighting Sioux T-shirt while his wife, GaeLynn, sorts through other shirts at a 2012 sale. (James MacPherson/AP)

According to Johnson, the thinking behind the arrangement is that maintaining ownership of the logo ensures it is controlled and not appropriated for more extreme use.

"If the image is construed as being hostile and abusive, then somebody else would pick up that image and would make use of it in a much more rigorous kind of way," Johnson argues.

Johnson says the last controlled release of Fighting Sioux merchandise included about 9,000 items that sold "pretty fast."

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