-Wes Anderson, Attorney
Readers of the blog know the dangers of selling unlicensed apparel and the oft-litigious stance of Major League Baseball when it comes to defending its marks. But a recent viral t-shirt phenomenon may just be one time the MLB should call off the dogs — or the “BEISBOLCATS,” as it were.
The story begins with Dee’s Barber Shop, a Detroit business advertising a ticket giveaway to Tigers baseball games. In the spirit of encouraging support for the local team, the owners painted a rather interesting take on the Detroit Tiger logo onto its shop window:
Once the image had made its way around the internet circles, the progression seemed almost inevitable. A graphic designer named Jeff Arcel saw the image and decided to create and sell a limited run of baseball t-shirts featuring the logo online.
The shirt borrows both from the Dee’s Barber Shop mural and is a nod to the now-retired “circle logo” of the actual Detroit Tigers (which is a registered mark and notably employs a famously bewildered-looking tiger).
A common misconception is that a few stray misspellings or differentiating elements is enough to preclude a trademark complaint — unfortunately, employing “DERTROIT” and the quasi-Spanglish “BEISBOLCATS” doesn’t immunize Arcel from liability. And while trademark law does provide a defense to infringement for “parody,” that generally applies only to noncommercial use. Since these are being sold online, there’s likely no credible parody or fair use defense.
To his credit, Arcel seems to be well aware of the trademark issues surrounding his design, and he advertises the shirts as “DEFINITELY NOT AUTHENTIC.” He also went so far as to incorporate the anticipated lawsuit from the Tigers into his tongue-in-cheek sales pitch (emphasis added):
Another joke gone too far, much like my life. Buy it before I get the pants sued off me. Printed on a White/Navy American Apparel baseball raglan. Soft and lightweight, unisex. It will probably look good on that weird body of yours.
It will probably look good on that weird body of yours is probably one of the most effective sales pitches I’ve yet come across in my 27 years on this earth.
Please allow about 2 weeks for shipping.
Any concern about trademark infringement certainly hasn’t affected sales — the shirts sold out almost immediately. But Arcel does allude to a “repress soon,” ostensibly as long as the MLB doesn’t make its feelings known beforehand.