-Wes Anderson, Attorney

The Chicago Cubs are rolling into the playoffs, putting the finishing touches on a historically dominant regular season with over 100 wins. Cubs fans (like me) even dare to dream that the century-plus long championship drought may finally come to an end this fall, if the team can carry its impressive form into the postseason.

Also coming to an end, if the Cubs have their way: the unauthorized T-shirt and merchandise sales outside Wrigley Field. The Cubs’ home ballpark is planted right in a bustling residential area, surrounded by bars and rooftop venues. The various street vendors lining the streets are a fixture of the gameday experience at Wrigley, if only because of their seemingly insurmountable numbers.

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It seems fall is an important time for both the team and the Cubs’ trademark lawyers. the Cubs and Major League Baseball Properties, Inc. (the IP ownership arm of MLB) brought suit last week against a laundry list of parties alleged to be “deliberately free riding on the success of the Cubs and trading – without a license or permission – on the substantial goodwill associated with the Cubs’ trademark and trade dress. The Cubs allege rights not just in their various logos (and the letter W, as previously discussed here), but also in “the combination of their iconic blue-and-red color scheme and other indicia.”

The Cubs then allege various street vendors utilize the Cubs’ trademarks and associated trade dress on T-shirts sold “around and near Wrigley Field in Chicago, Illinois, and on the Internet.”  The (now-amended) Complaint can be found in full here. The Cubs’ complaint also seeks a non-specific court order “allowing them to work with law enforcement to seize counterfeit or trademark-infringing merchandise spotted for sale outside the ballpark,” according to the Chicago Tribune.

Taking a look at the shirts captured in the complaint, there are certainly examples where the Cubs have a legitimate grievance, and others that tend to strain credulity:

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An infringement case may well be open and shut as to those shirts with the “C” or “Cubbie Bear” logo, or even the “W” letter from the Cubs’ “win” flag. But those who have been to Wrigley Field might agree there are countless examples where vendors do not use any Cubs intellectual property, and allude to the team more creatively. The “WE ARE WORLD SERIOUS” shirt above would be a prime example of this – were it not for the “W” flags flanking either side of the shirt’s logo. Still, it’s hard to wonder what precisely the Cubs see as infringing in the “CENTRAL DIVISION 2016 CHAMPIONS CHICAGO” shirt in the bottom row. If anything, it might be a tailor-made case of nominative fair use.

The Cubs’ request to actively enforce its trademarks in the Wrigley Field area is certainly a novel one, and appears to be timed to seize upon the influx of interest (and cash) that surrounds playoff baseball. T-shirt vendors might find the “Friendly Confines” to be a bit less friendly in October, unless they have the means to defend a federal trademark infringement suit.

  • Gregory-George G

    What a great topic. Art vs Law or better, Artists protected by law. One of the oldest IP laws and traditions in the world (apx 1500’s UK) is Copyright. In fact, the moment a person creates a unique “thing” it is copyrighted, regardless of whether or not the copyright is registered with the US (or foreign) Copyright Office. The registration just gives them the backing of the government for certain statutory damages, but does not impair or limit their pursuit of common law damages (how many artists or musicians know that?). However, to make a claim, the onus is on the creator to mark each version of his/her unique creation with a public NOTICE that it is his/hers or in the case of a D/B/A or company, “its” property.

    This is conventionally done by adding in print, near to the image, sculpture, music, recording, software, etc., the international symbol for copyright (the circled “C”), or the word “Copyright”, followed by the year and the name of the creator or holder of rights. (lets remember this for later)

    Now in the instant case, CUBS Inc et. al. or MLB Inc. et. al. vs Street Vendors… well let’s just say I’ve been down that road. For starters, the aforementioned plaintiffs typically frighten and bully those “non-learned” individuals by threatening lawsuits, which they know they fear. Most common folks have no clue of their creative rights and will run into the forest as soon as they hear the “law-lion” growl. Bad form, for even ambulance chasers! LOL When it comes to law, most grownups are just children and to pull these tricks are, IMHO, unconscionable.

    Certain things are just not trademark-able or copyright-able… For instance: words, numbers, symbols in common use… The CUBS have a dilemma here, they want us to believe that the circled “C” is a trademarked, copyrighted property of theirs. If that is true, then why are they not suing and collecting from all the copyright holders of IP around the world for using that symbol on their Notices… or even the governments that use it? It is because the circled “C”, as a stand alone object, is a public domain symbol. Heck, when I type the 3 characters “(“, “c” and “)” in MS Word, ta-da! – the circled “C” appears automatically on my page! So are the Cubs or MLB running to sue ASCII or Microsoft for daring to have their alleged IP appear without a license? – HELL NO… they would be laughed out of court at best.

    Now, as we know, if such a thing as a circled “C” has additional letters added, like “U” “B” and “S” within that “C” and circle, it is a NEW, unique thing, which is and should be protected… BUT NOT JUST A CIRCLED “C”!

    I feel that every claim these plaintiffs have ever made for such IP protections for a public domain symbol (and any previous cases won), can be dismissed or overturned on this simple basis. Their over-zealousness and mean-spirit in pursuit of protecting that IP which is “rightfully” theirs has produced a mind-set of “we own the world”, which is dangerous to all, including them. God forbid a “bigger fish” showed up and pulled it on them… my wouldn’t their whining be like music to the simple street artists? -LOL

    So, in closing, I feel that it is essential to the creative arts and the business that grows up around it to take a more absolute view of IP, not so generalized, so that the real things that should be protected are, and we leave room for the creation of new things which, to the chagrin of the complainants, weave a clear path between their IP and presumptions.

    thanks
    GGG