Earlier this year we wrote about the issues surrounding name changes in the public and private education space as well as the rebranding of the Washington Football Team. The push toward such changes has continued as we head into 2021, warranting an update. Although this blog focuses on naming in public spaces, it is also worth noting recent developments in the private sector which highlight points of similarity and contrast in how these issues play out in the two arenas.
Naming in the private space
In the private sector, naming typically requires only a decision by the owner(s) or governing body of the space. Often institutions, particularly colleges and universities, have naming guidelines to inform such decisions. These guidelines in part reflect efforts, for tax reasons, to uncouple the benefactor’s donations from the naming decisions and to give at least the appearance of transparency to the community.
Since we last wrote on this topic, Princeton University has announced that it will name a new residential college Hobson College, in honor of Mellody Hobson, co-CEO of Ariel Investments and an African American member of Princeton’s Class of 1991. The new dormitory will be built on the site of First College, formerly known as Wilson College. This is part of a two-step process begun in June when the school agreed after years of protests by student activists to delete Woodrow Wilson’s name from the School of Public and International Affairs and Wilson College.
And just in the past few weeks the Cleveland Indians have announced that they will rename their major league baseball team, dropping “Indians” from the title. Although the precise timeline for the removal of the Indians name isn’t set, it is expected to occur by 2022. As to the new name, that has not been made public. It will be interesting to see if Cleveland faces naming issues similar to the Washington Football Team, which found that possible names were precluded by third party trademark registrations. As with all things associated with trade names and trademarks, L&L urges research and clearance at the earliest opportunity. Good homework leads to good results.
In the commercial space permission is required to name a building, business or product after a famous person. Without such permission, in theory the action could violate an individual’s right of publicity or constitute infringement under the Lanham Act, which prohibits the use in commerce of a name or symbol that is “likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.” In practice, however, such issues rarely arise, since the person or the heirs of the person being honored, whether through their philanthropy or non-financial contributions to the institution, are often active participants in the naming decision-making process.
Naming in the public space
Naming streets, highways, bridges, state buildings, parks, streets and schools provide an historic context and a window into how the community wants to be perceived. The visibility of the naming opportunities can be used to demonstrate the relevance and contributions of the individuals and the causes they espoused. As in the private sector, naming guidelines generally inform the process of renaming public spaces, and transparency is also more aspirational than actual.
Unlike in the private sector, however, applying an individual’s name to a public space rarely creates a use under trademark law, and therefore the consent of the party or his/her heirs is usually not required. Such use is fair when it does not imply sponsorship or endorsement by the trademark holder, if any, and does not constitute unfair competition. However, notice to the individual or his/her heirs would be an appropriate courtesy. Interestingly, after the Ku Klux Klan prevailed in its efforts to participate in Missouri’s “Adopt-A-Highway” program and the U.S. Supreme Court refused to intervene, a decision was made to rename a highway Rosa Parks Highway to neutralize community concerns. Cuffley v. Mickes, 208 F.3d 702 (8th Cir. 2000), cert. denied, Yarnell v. Cuffley, 532 U.S. 903 (2001). Newspaper articles at the time noted that Rosa Parks, who was still living, was not aware of the use of her name until well after the process was complete.
Despite not having the publicity and trademark constraints of the private sector, the legal issues in the public sector – or more accurately, the political issues – are more complicated. There is often greater bureaucracy at the city, county, state and federal level. Even subdivisions and Advisory Neighborhood Commissions may have to weigh in on the process. The U.S. Congress also gets involved in naming venues after its own members and, most recently, debate over the move to rename military installations named for Confederate officers has pitted Congress against the incumbent President. Community involvement is often more formal, with requirements for advance notice to those affected and an opportunity for public comment.
As a first step many cities have naming ordinances, but often a geographic space may cross political boundaries and involve layers of local, state and federal approvals. In Virginia, for example, a thoroughfare named after Jefferson Davis, the President of the Confederacy, stretches through many cities and towns. A portion of this highway has already been renamed Richmond Highway. A recommendation has been made to rebrand a 4.6 mile stretch of Lee Highway in honor of Richard and Mildred Loving. (The Lovings were an interracial couple who in 1978 married in Washington, D.C., where such marriages were legal. However, they were jailed after returning home to Virginia for violating a state law designed to “preserve racial integrity.” On June 12, 1967, the Supreme Court by unanimous decision struck down laws banning mixed-race marriages in 16 states, including Virginia.) The working group, the Lee Highway Alliance, is expected to bring the recommendation to the county board, which must then seek approval from the Commonwealth Transportation Board or the Virginia General Assembly for the name change.
In Texas, despite a 1991 law to remove the word "Negro" from its place names, only one name has changed, and more than two dozen geographic places in the state have not changed their names. See Act 1991 72nd R.S.,ch. 435, General and Special Laws of Texas. Names such as "Negro Bend," "Negro Hollow" and "Negrohead Bluff," were to be renamed for African Americans who made significant contributions to the state. However, the Department of Interior’s U.S. Board on Geographic Names has the authority over such matters, and Texas’ proposals were all rejected. In September 2020, the Reconciliation in Place Names Act was introduced in the House to address racially offensive names, which involves more than 1,400 places across the U.S.
A Republican Congress voted to designate the local airport as Ronald Reagan Washington National Airport, in a clear effort to irk the Democratic Congressmen and largely Democratic residents of the District of Columbia who frequently use the airport. Although it’s been the official name since 1998, many in the area avoid the controversy by continuing to refer to it as Washington National Airport.
While in the private sector the relevant currency is donations, in the public space it is political power. Politicians have control over how public budgets are allocated, and the reward for their efforts to advance a particular project is often to have the project bear their name. While some jurisdictions curb this self-aggrandizement by requiring that a public space cannot be named after a politician until they have left office, other jurisdictions are overwhelmed with such designations. Other jurisdictions require that the individual be deceased before being honored with a naming opportunity. Some guidelines require that noteworthy people, places, events and things be related to the city, thereby excluding national figures such as Martin Luther King, Jr. or most recently, John Lewis.
Racial, Cultural and Economic Issues in Naming Public Spaces
While most naming opportunities are uneventful, some are quite contentious, pitting community priorities against concern for property values and perceptions, most often along racial, cultural and economic divides. Yet, since individuals and businesses have little choice but to use the names designated for a particular geographic location, it is reasonable that they have some say in the matter. Take for example two naming decisions in the District of Columbia. "Pursuant to sections 401, 403a, and 423 of the Street and Alley Closing and Acquisition Procedures Act of 1982, effective March 10, 1983 (D.C. Law 4-201; D.C. Official Code §§ 9-204.01, 9-204.03a, and 9-204.23), the [District of Columbia ] Council symbolically designate[d] the 1200 block of U Street, N.W., in Ward 1, as 'Ben's Chili Bowl Way'" expediting the process to coincide with the 60th anniversary of the Washington D.C. establishment that has been a symbol of the African American business community’s resilience in the District and host to many national figures. The same language was used in 2020 to designate 16th Street, N.W., between H Street, N.W., and K Street N.W. as Black Lives Matter Plaza. The latter is a 90-day emergency measure, and it remains to be seen if it will become a permanent addition to the D.C. landscape.
We will continue to monitor the legal and policy issues surrounding naming in both public and private spaces.