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For Wrigley Field Street Vendors, It’s Win or Go Home

Posted in Advertising, Branding, Counterfeits, Fair Use, Fashion, Marketing, Trademarks

-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.