It’s fall, and you know what that means: football season! For many, this means a return to the couch each weekend to spectate America’s most-watched sport. But the popularity of doing so appears to be in decline. This shift isn’t only affecting the NFL, but also college football as well, as ticket sales continue to plummet. Increasingly among my own family and friends, it seems as if everyone is more interested in playing their fantasy leagues than watching reality unfold before them. Which is why, one would think, that leagues and other football organizations would want to promote discussion about football, rather than hinder it.

Credit: Geek.com

But football organizations are cracking down on, rather than encouraging, use of familiar football names and phrases. Some have questioned, for example, the NFL’s bully-like tactics in aggressively protecting the “Superbowl” name. The annual “big game” is so well-known and such a major event that it’s almost impossible not to use its actual name. Yet, the NFL persists, enforcing more than just its famous name, drawing the ire of commentators each year.

Such tactics appear to have inspired a recent filing by the Heisman Trophy Trust against “HeismanWatch.com,” for trademark and copyright infringement. The Heisman Trophy Trust, the complaint says, is the owner of a slew of federal trademark and service mark registrations related to the Heisman Trophy, “one of the most distinguished, prestigious, and recognized awards in all of sports, and perhaps the most famous of all individual awards in football.” The award is given to the most outstanding collegiate football player, usually a quarterback or running back, each year. You might recognize the trophy by its distinctive “stiff-arm” maneuver captured in bronze:

Credit: The Ringer

Defendant HeismanWatch.com is a website that offers information, analysis, and podcasts about the Heisman trophy award. It is known for its “one-of-a-kind regression model that processes simulated Heisman votes,” to predict in advance who will win the Heisman each year. It reportedly correctly predicted the most recent winner, Baker Mayfield.

The Heisman Trophy Trust, apparently, does not appreciate HeismanWatch.com’s analysis and attention. It alleges that the website is deliberately attempting to free ride on the fame and notoriety of the Heisman Trophy marks, and it says that consumers are likely to believe there is a connection between the website and the actual trophy organization. Of course, the fact that HeismanWatch.com exists at all belies any such connection; the Trophy selection is secretive, but the website helps fans read the field and guess who will win next.

Time will tell whether the Heisman Trophy Trust can prevail against a news reporting and commentary organization like HeismanWatch.com, but it’s not unprecedented. The Academy Awards sued “OscarWatch.com” over a decade ago, prompting the website to change its name to “Awards Daily.” One cannot help but think that HeismanWatch.com has an incredibly strong nominative use defense, though. Under nominative use doctrine, another person can use the trademark of another if:

  1. the thing identified by the trademark (here, a trophy) cannot be readily identified any other way;
  2. the mark is used only as much as is necessary for that identification; and
  3. the use does not suggest sponsorship or endorsement.

The nominative use defense protects free speech and against the need to use “absurd turns of phrase” to avoid liability.

Credit: Wikipedia

It’s difficult to imagine a viable substitute to the name “Heisman,” given the trophy’s actual name–and namesake. What alternatives are there to HeismanWatch.com that do not include the surname? One commentator  offered an idea:

BestOffensivePlayerWithAGreatPRCampaignOnAVerySuccessfulTeamWatch.com.

Of course, this is absurd. And generic alternatives would fail to adequately describe what the website does (e.g., OutstandingCollegiateFootballPlayerWatch.com). One also doesn’t have to look much farther than a simple Google search to find that the media regularly uses “Heisman Watch” as a phrase to discuss anticipation about the next awardee. Even ESPN has a section called “Heisman Watch.” This kind of ubiquity shows the obvious necessity of using the surname. The common use of the phrase also suggests there is a very low likelihood that collegiate football fans are confusing the website–or any other reporting source–with the actual trophy organization. These are hallmarks of fair use.

But setting aside the legal defenses, one has to wonder if organizations such as the Heisman Trophy Trust, NCAA, and NFL ought to relax a little, and encourage the kind of use presented by sites like HeismanWatch.com. These fan centers generate excitement about, and interest in, football. That’s something football desperately needs more of lately.

As we move into Week 2 of the NFL, the big clash in North Country is Sunday’s Green Bay Packers – Minnesota Vikings game. All the buzz is whether the second-coming-of-Favre Aaron Rodgers will prevail over the vaunted Vikings defense. But here in my trademark bubble, I’m more interested in the Jacksonville Jaguars versus former Jaguar player Dan Skuta. This isn’t a contract negotiation battle, but instead a dispute over who owns the claimed trademark rights in the word SACKSONVILLE. The dispute is now the subject of a pending opposition at the Trademark Trial and Appeal Board.

In the Notice of Opposition to the team’s application, Skuta claims to have been the first to coin the term “Sacksonville,” back in July of 2015, but his pending application was refused based on a possible likelihood of confusion with the team’s already filed application. He created a Twitter account and hired a graphic designer to create the logo below, which appears on Skuta’s website.

 

In the team’s application to register the claimed #SACKSONVILLE mark, the Jaguars claim a first use date of September 1, 2017.  However, the team has the ability to present evidence of use earlier than the date of first use listed in the application. One article notes that the team has used the phrase as a social media hash tag at least as early as 2013. But in most circumstances, merely using a word as a social media hashtag does not constitute use in commerce.

Unsurprisingly, one local Jacksonville news outlet is skeptical, siding with the team over a “forgettable linebacker . . . who may have been better at anticipating trademark uses than he was at reading offenses.”

It is possible that Skuta may have used the mark in commerce before the team. Skuta hasn’t made his case any easier by including in the logo what appears to be a jaguar skull and the same Jacksonville Jaguar teal color. On top of this, the play on words with “Jacksonville” potentially creates association with the team, too.

It’s a bit of a mess: are there even any trademark rights and, if so, who owns them? It seems the team likely should be the owner, but perhaps they fumbled the rights along the way. We may have to wait for the Trademark Trial and Appeal Board to weight in to see who emerges from the scrum with the ball.

Tis’ the season for football, not just on the gridiron, but also at the U.S. Patent and Trademark Office. Shortly after the “Minneapolis Miracle,” as we reported this week, the Minnesota Vikings applied for registered marks on the phrase. And with the “big game” approaching, teams have titles on the mind–even those that aren’t in contention (ahem, Green Bay Packers).

Just one week ago, the Green Bay Packers initiated an opposition proceeding with the Trademark Trial and Appeal Board (the “TTAB”) against McClatchy U.S.A., a publishing company associated with the Fort Worth Star-Telegram. The dispute stems from the Star-Telegram‘s use of “Titletown, TX” as the title of a 20-short-video documentary series chronicling “the story of the 2016 Aledo [TX high school] Bearcats and their quest for a sixth state [football] title in eight years.”

Courtesy: PBS

The Packers have owned registered competing marks, such as “Titletown U.S.A.,” “Titletown,” and “Titletown Towel” since as early as 1993 (though, the Packers assert they have “made widespread and continuous use” of the marks since the 1960s). The Packers appear to have only begun policing the Titletown name at the TTAB since the start of this decade, however, filing five oppositions against related marks, such as “Title Town Talk Show” and “Titletown Brewing Co.”

The Titletown mark has acquired additional meaning and value to the Packers since the organization opened a development district by the same name outside Lambeau Field last year. The Packers invested almost $65M to complete the first phase of the district by this fall. The Titletown District includes a hotel, sports medicine clinic, ice skating rink, restaurant, and artificial tubing hill. And this summer, it got its own logo:

Courtesy: Twitter

The Packers allege that the “Titletown, TX” mark and use in the Texas video documentary series creates a likelihood of confusion and dilutes the “Titletown” and related marks. Why? Because the Star-Telegram uses the mark in connection with football. And that conflicts with the general public’s wide recognition of the mark “as being associated with a single source, and further recognizing the single source as [the Packers].” And the Packers allege that the Titletown name is distinctive with regard to entertainment, video, news, and commentary related to football such that it has acquired secondary meaning. Not only that, but the Packers consider the mark “famous and exclusively associated with [the Packers] in the mind of the consuming public.”

Setting aside the high likelihood that several fanbases and regions across the United States would likely dispute the Packers’ allegations as to fame and widespread recognition and acceptance, the primary questions before the TTAB are whether the use of the “Titletown, TX” mark in the short-video series is likely to cause confusion, mistake, and/or deception as to the source or origin of goods and services. And, further, whether use of the mark is likely to dilute the distinct quality of the Packers’ marks.

Generally, the strength of a mark depends on whether it is arbitrary or fanciful, suggestive, or descriptive. Because the Packers argue distinctiveness and secondary meaning, the organization appears to contend that the mark is descriptive (the lowest strength outside of generic), implying that the Packers are title winners. And historically, this is true; the Packers have been league champions a record 13 times (9 more than the nearest rival team, the Chicago Bears). And the Packers have won three consecutive NFL titles twice. Interestingly, though, the Aledo Bearcats have also won three consecutive state titles twice. This could set up a descriptive fair use defense for Star-Telegram.

When it comes to likelihood of confusion, the primary factors include: whether the use is related, the strength of the mark, proximity of the use, similarities of the marks, evidence of actual confusion, marketing channels employed, the degree of care likely to be exercised by consumers, the user’s intent in selecting the mark, and the likelihood of expansion of product/service lines. The Packers might have a case, but not a very strong one. Star-Telegram‘s use may be related to how the Packers use the Titletown mark in some contexts. But the Packers use the Titletown mark in multiple ways, only one of which relates to reporting about football. Indeed, the Packers are beginning to use the mark more in connection with the new Titletown District. Star-Telegram‘s use is in a very different market: Texas vs. primarily Wisconsin. The use relates to different football leagues: high school vs. the NFL. And the marketing channels are different: online newspaper vs. broadcasts. Ultimately, it seems unlikely that a typical consumer would confuse the two uses: think cheeseheads vs. longhorns.

When it comes to dilution, the primary inquiry is whether the use of a mark is likely to impair the mark’s distinctiveness or harm the reputation of the famous mark. The Packers allege that “[a] recent survey concluded the term TITLETOWN is known to virtually the entire population of consumers surveyed and a substantial majority of those who are aware of the term TITLETOWN, associate it specifically with the Green Bay Packers.” This may demonstrate distinctiveness. On the other hand, it is difficult to see how a short-video series on successful high school football teams in Texas would harm the Titletown mark’s distinctiveness as to the Packers and professional football or harm the reputation of the mark.

McClatchy has until February 26, 2017 to answer the Packers’s opposition. By then, there will be a new reigning NFL titleholder, much to the envy of the allegedly-undisputed Titletown team. But even more to the Packers’s envy, the new titletown (or place of the title game) will technically be Minneapolis.

According to recent reports, the Chargers will announce this week that they are leaving sunny San Diego for also sunny Los Angeles. Over a short two year span, Los Angeles will have gone from zero NFL teams to two NFL teams, as the Rams moved from St. Louis to Los Angeles just last year. However unlike the Rams, the change may extend beyond zip codes, as the team is also reportedly considering a full rebrand of the team. This will mean crowds of sad San Diegans, a number of discarded powder blue jerseys, and a lot of wasted governmental filing fees paid to the U.S. Patent and Trademark Office.

Yes, each time a sports team moves cities, a number of people rush to file trademark applications. Perhaps they have a great idea for a team name and want to be the person that named the team. More likely, however, is that there is a hope they can “get in first” and force the team to buy the application from them. Back in September when the Oakland Raiders publicly considered  moving, there were no less than six applications filed for the LAS VEGAS RAIDERS mark over a 48 hour period.

Unfortunately for those applicants (and others with similar plans), the applications are likely dead in the water.  Unlike some countries where trademark rights are given out on a “first to file” basis, in the U.S. trademark rights are created through use of the mark in commerce. This requirement was relaxed slightly to allow for “intent to use” applications, where a party can file an application based upon its intent to use the trademark in commerce, even if they haven’t begun use yet.

However, when Congress created the new rules, there was concern that persons may abuse the system by applying for trademarks for the sole purpose of selling them to third-parties for increased sums. In order to prevent this from happening, the law requires that an applicant have a “bona fide” intent to use the trademark in commerce. Even if an applicant obtains a registration, that registration may be vulnerable to cancellation if the applicant did not have a bona fide intent to use the mark as of the filing date.

As you might imagine, trying to claim rights  to the LA BOLTS mark to sell to the Chargers organization is not likely to qualify as a bona fide intent to use. This is particularly true if the application seeks protection in connection for “professional football team exhibition services.”

So if you’re considering capitalizing on the Chargers move to LA by filing a new trademark application, please reconsider. If you instead just want the glory of naming the newest NFL team, take to Twitter instead. If it worked for the RRS Boaty McBoatFace, it could work for you, too.

 

 

 

-Wes Anderson, Attorney

In the fall of 2012, an upstart freshman quarterback at Texas A&M named Johnny Manziel earned the moniker “Johnny Football” during an incredible season, leading the Aggies to a number of huge wins. Yet after three years, a Heisman Trophy, and a shaky rookie season in the NFL, Manziel has yet to secure a trademark registration for JOHNNY FOOTBALL. It’s a lesson for anyone who begins widespread use of a trademark: get an application filed ASAP.

A recent ESPN article discussed Manziel’s progress leading up to his sophomore year in pro football. Manziel laments his role as a “distraction” on the Cleveland Browns in 2014 and says he will no longer do his “money sign” gesture on the field. It also contained this intriguing note:

A company called Already LLC, headquartered in Fort Worth, Texas, recently transferred trademarks it owns — Johnny Baseball, Johnny Basketball, Johnny Sports, Johnny Golf and Johnny Soccer — to Manziel. Manziel is still in the process of securing Johnny Football.

This seemed hard to believe, at first. Even Wikipedia claims that the JOHNNY FOOTBALL nickname “is a registered trademark.” But for perhaps the first time in history, Wikipedia has this one wrong.

Manziel, filing jointly with an entity named “JMAN2 Enterprises, LLC,” applied to register the JOHNNY FOOTBALL trademark for a variety of apparel and entertainment services on February 2, 2013. The problem? An individual named Shannan Young had already applied to register the mark JUANITO FÚTBOL one month earlier on January 3, 2013. “Juanito,” of course, is the Spanish “diminutive” for Juan, which is roughly equivalent to “John” for an English-language name. In essence, Young beat Johnny Football to the PTO register for JOHNNY FOOTBALL.

The real kicker (no pun intended) is that old college rivalries appear to be behind the application. Take a look at Young’s specimen for the JUANITO FÚTBOL mark. Notice anything?

Screen Shot 2015-06-26 at 7.38.17 AM

That’s a logo for Texas Tech University on the product wrapped in the trademark. Texas Tech, of course, is an in-state (and former conference) rival of Texas A&M, Manziel’s alma mater. Also, it is unexplained why this was an acceptable specimen of use — the application identified “Hats; Jerseys; Sweatshirts; T-shirts” and the product shown appears to be some kind of cup. But the juanitofutbol.com site remains live and active, and continues to sell apparel products bearing the mark.

We recently noted the importance of policing use of trademarks and watching for potentially-infringing marks. The ongoing saga of Johnny Manziel emphasizes the importance of filing for trademark applications as soon as they are in widespread use — before a foe can swoop in and block registration of your mark.

As a result of Young’s quick actions, Manziel’s application was eventually suspended for nearly two years while Young’s senior application moved through to registration. Manziel’s application finally received an office action in January 2015 citing JUANITO FÚTBOL as grounds to refuse registration.

It appears that, eventually, Manziel was able to acquire Young’s registration – an assignment from Young to Manziel’s JMAN2 Enterprises entity was recorded earlier this month (though it appears to have actually taken place in April 2014). An office action response should make quick work to point this out and, finally, allow JOHNNY FOOTBALL to proceed to registration. But, perhaps, Manziel could have saved some of his calling-card money had he capitalized sooner on his nickname.

 

– Draeke Weseman, Weseman Law Office, PLLC

Now the dilemma…what to name the place. Simple. What else brings a gleam to men’s eyes everywhere besides beer, chicken wings and an occasional winning football season? Hence the name Hooters. Supposedly they were into owls. Strange.

Hooters

 This NFL season, civil rights advocates continue to make significant progress exposing the racism inherent in the Washington Redskins team name. DuetsBlog has covered the topic on numerous occasions, including here, here, and here. In June, the Trademark Trial and Appeal Board of the United States Patent and Trademark Office finally ruled that Washington’s trademark registrations must be cancelled because the term “Redskins” is disparaging to Native Americans.

To my knowledge, the Trademark Trial and Appeal Board has not yet been asked to review a registered mark for cancellation on the grounds that it is inherently sexist and, therefore, disparaging to women. But given the success in the Washington case, perhaps some registrations are due for a challenge. In my opinion, one candidate for cancellation is the registration afforded to Hooters, the mainstream restaurant chain that puts women’s breasts on display to sell chicken wings.

Let’s begin with the following tongue-in-cheek statement from the Hooters’ website:

Hooters is proud to have created a globally recognized icon. Obviously we’re talking about the owl in our logo.

We all know that Hooters is a euphemism for breasts, and at first glance, this humorous play on words seems harmless enough. Hooters whimsically calls its brand personality “[d]elightfully tacky, yet unrefined.” Nothing wrong with a good joke, right? Well, research suggests otherwise:

Sexist humor is not simply benign amusement. It can affect men’s perceptions of their immediate social surroundings and allow them to feel comfortable with behavioral expressions of sexism without the fear of disapproval of their peers.

With that in mind, should we laugh at the following excerpt from Hooters’ company history?

While Ed arranged the photo shoot for Hooters’ first billboard, Gil indoctrinated Lynne [The bikini-contest-winning first Hooters Girl] by making her clean out the refrigerator and scrub the floors.

Hooters takes it one step further in its employee handbook, which requires employees to acknowledge that they “do not find [their] job duties, uniform requirements, or work environment to be offensive, intimidating, hostile or unwelcome” and that “the Hooters concept is based on female sex appeal and the work environment is one in which joking and innuendo based on female sex appeal is commonplace.”

What happens to the joke when we consider that the disparagement of women through their sexual objectification in commercial advertising may have serious consequences, including an increase in the acceptance of sexual aggression against women and rape myth acceptance (the belief that “no” really means “yes”)?

Consider the relationship between Hooters and football, and all of the domestic violence issues the NFL is facing after a video showed running back Ray Rice punching his girlfriend unconscious on an elevator. With that in mind, can we stomach social media posts like this one? (I guess Hooters missed the part of Ben Roethlisberger’s career where, on two separate occasions, he was accused of sexual assault?):

Of course, the “sex sells” brand proposition has been a maxim of the advertising industry for a long time, and sexual objectification – where a person is viewed primarily in terms of sexual appeal or as a source of sexual gratification – occurs regularly in television commercials featuring women. Such advertising, like in this Hooters commercial, encourages a disparaging cultural attitude toward women by reducing the woman’s value to her ability to be sexually arousing – what she is saying isn’t nearly as important as how she is saying it and what she looks like. What’s more, when seen through a lens sensitive to sexism, Hooter’s charitable causes look like nothing more than an apparent exploitation of breast cancer awareness and military service to sell calendars:


Thus, the truth as I see it is that when we look past the surface-level Hooters pun and really look at the Hooters brand, we see a brand that at its core is committed to and perpetuates a sexist culture that objectifies women for commercial gain. This is disparaging to women, whether we as a society find it amusing or not.

Following the Washington Redskins case, it’s difficult to see how the United States Patent and Trademark Office can allow sexist trademarks like Hooters to continue to receive protection as registered trademarks when the law clearly provides an absolute bar against scandalous and disparaging marks.

Under Section 2(a) of the Lanham Act, a mark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage . . . persons, living or dead” is ineligible for trademark registration. The word “scandalous” in the statute includes matter that is vulgar, lacking in taste, indelicate, or morally crude. Generally, the scandalous nature of a mark must be perceived by a substantial portion of the general public in the context of contemporary attitudes and the relevant marketplace. Humor is not a defense, nor does it matter if the mark has an alternative meaning.

Disparagement, on the other hand, looks at the issue not from the view of the general public, but from the view of the targeted group. The test is a two-part inquiry: (1) what is the meaning of the term in question as it appears in the mark and as the mark is used in connection with the identified goods and services?, and (2) does the meaning of the mark disparage the target group, as determined by the views of a substantial composite of that group? That substantial composite need not be a majority.

While we wait and see if marks like Hooters will ever be challenged under either of these tests, other countries are taking the lead on this issue in different ways. Norway and Denmark both ban sexual objectification in advertising, while tolerating nudity. According to the head of one leading ad agency “Naked people are wonderful, of course, but they have to be relevant to the product. You could have a naked person advertising shower gel or a cream, but not a woman in a bikini draped across a car.” Is it a coincidence that the countries considering this issue also have some of the lowest gender pay gaps and best parental leave programs in the world?

So, when will American’s stop believing that sexism is ok, just because it’s funny? Speaking of funny, will Americans ever embrace another f-word in support of equality?

Should the USPTO continue to allow trademarks like Hooters to be registered? Or by doing so, does the USPTO perpetuate sexism in branding?

What about marks like the one below for Camel Towing? (The picture was taken in a local parking lot.) Should the USPTO allow it to be registered, if the company behind the mark ever applies?

Can you feel it? All around the country, fields are being groomed, stenciled, and painted. Tonight, the college football season begins with Georgia State taking on Abilene Christian in what could be a preview of one of hundreds of games that most of us don’t really care about. But like so many fans around the country, I’ll probably still watch it, at least for a quarter: I missed you Football.

Football certainly hasn’t been gone from the news though, as lawsuits addressing scholarships, unions, and additional antitrust violations have all made headlines. But one headline caught my attention, an article discussing the University of Southern California’s head coach Steve Sarkisian filing a U.S. Trademark Application for his moniker SARK. Sark joins a number of other college football coaches who have applied to register their names.

Just last month, we covered the University of Arkansas’s registration of the SOOOIE RAZORBACK cheer. There was also the Oregon/Oregon State CIVIL WAR, too. This got me wondering, if trademark law can protect coach names, chants, and intrastate rivalry games, what other fun ways can I think about work while watching football?

How about stadiums?

Check. Well, technically only the turf is claimed as a feature of the mark. Steve discussed this registration back in 2009. Also, the red version for Eastern Washington. Not the stadium itself. But still.

Uniforms?

 

Check. Oh, and better get one for the away uniforms, too.

And speaking of uniforms, if you were considering launching a business that sold perfume or deodorant in the form of a football jersey, well. Don’t. Not just because its a terrible idea, but because you might be infringing on the trademark registration below:

 

And since we’re on the subject of product trade dress, don’t forget about football shaped brownies:

 

And you definitely won’t want to forget about your football shaped “alcoholic beverages except beers:”

 

And let’s see if you can guess what kind of goods or services this is a trademark for:

Yes, it’s a kicking tee. And yes, it’s registered on the Principal Register in connection with kicking tees.  How? Well, apparently, the texture on the tee is so unique that it has acquired distinctiveness in the minds of consumers as identifying a particular source. Right.

There’s even a trademark registration for this logo:

 

Which is apparently in no way associated with this registered trademark of Nike:

 

Or how about this trademark:

Yep, that yellow line is a trademark of Sportsvision. Martha covered that here around Super Bowl time – Oh, sorry Roger –  The Big Game time.

And if you’re attending a game at Texas A&M, not only will you be surrounded by trademarks, but you will BE a trademark, way to go 12TH MAN®!

There are certainly many more that we could cover, but I think it is pretty clear that this Saturday, whether you’re in the stadium, on the LA-Z-BOY® at home, or at the BLUE 42 SPORTS GRILL in Winter Garden Florida, you will be surrounded by trademarks. And football. Glorious, but possibly not-very-competitive, football. Enjoy it! – I know I will (GO HAWKS!!).

Yes, it has finally arrived: the end of December. Whether you’re someone who views the day as bitter sweet, dreading the day when the dirty looks from your neighbors force you to finally take down your decorations in February, or whether you were ready for it all to be the over the very moment you noticed the lights, stockings, and holiday candy hit the shelves in your local Target or Wal-Mart on October 30th, the season is filled with memories, symbols, and personal meaning and connections.

While others may focus on a more broad meaning of Christmas (the spirit of giving, or the joy of receiving), a recent Opposition Proceeding based on a logo for the letter “C” left me wondering, what does the first letter of the Christmas mean to me, and to the public in general?

For some, particularly in the upper Midwest, the letter “C” is not likely to trigger anything other than COLD (with a wind chill of -15 as I post this). For others, it may be difficult to think of the Coming Credit Card bill in January.

Okay, maybe I’m being too Coy.  I’ll try to focus this a little bit, when you think of a Company’s logo, with the letter C, what do you think of? Okay, I’ll Cede some ground, we Could work with a more Concise Category, how about Clothing? Any of the below Create a Connection in your Cranium?

Concede? Chanel, Coach, and Chaps (e.g. Ralph Lauren). Okay, clothing may be too broad. The Case I’m Considering is a recent Opposition filed by the Chicago Cubs against Clear Channel for a C and Design mark, both shown below:

Clear Channel on the left and Chicago Cubs on the right.

Clearly, Clothing isn’t sufficiently Confined. To Correctly Consider the Closeness of these “C” marks, how about we look at marks registered for baseball Caps or athletic goods?

Hm. Well Certainly any marks registered for Collegiate programs, like those below, must be ignored, even if they are registered and used in Connection with baseball Caps, Competitions and Exhibitions:

Consistent with this Conclusion, there Couldn’t be any Confusion with the Collection of marks below, registered for professional sports teams. After all, they’re either different professional sports, or at least in the Case of the Cincinnati Reds and Cleveland Indians, different Cities!

Consequently, I must Concede that the Chicago Cubs have Convinced me that the letter (and Consonant) C is uniquely associated with the Chicago Cubs. Certainly Consumers will not understand the C logo as referencing the City of Chicago or their Chosen Club Team, the Cubs.

Although I admit, I am not quite sure how to deal with this mark:

The registration is owned by the Chicago Athletic Association Corp. for use in connection with “services rendered to encourage all manly sports. . . . ,” with a claimed first use date of March 1890.

Come to think of it, I’m starting to wonder if maybe the Copyright Office might have a Claim against all of these parties discussed above…

In all serious, perhaps the Chicago Cubs do have a legitimate Claim. In fact, I hope they win. After all, they really could use one. Even though my Twin Cities Minnesota Twins have had a couple of bad years, we did win two World Series titles in the modern era. If you can’t win on the field, you might as well win in the Courtroom…

In Conclusion, wherever you are, and whichever your team, may your holidays be filled with friends and family, and laughter and joy. Merry Christmas!

– Derek Allen, Attorney –

For many avid sports gamers, December 13, 2004 is a day that will live in infamy.  On that date, EA Sports, makers of the longstanding Madden franchise, inked a deal with the NFL that would allow EA, and only EA, to produce video games depicting real NFL teams and players.  At the time, many thought Sega’s NFL 2k series, and its then most recent iteration, NFL 2k5, had surpassed the Madden games in both quality and price.  Players loyal to the NFL 2k series – which included a 12 year old version of me – flipped out because the Madden games, as anyone with a brain and a 12 year old vocabulary knew, sucked and the 2k games were awesome.  EA Sports went on to sign a similar deal with the NCAA the next spring.  Without any competition for its football games, EA Sports, much to the chagrin of kids (and their parents who shelled out over $50 per copy), appeared to stop innovating and instead released games each year that were essentially glorified roster updates.

Eight years later, we can stop flipping (kind of).  In response to a class action lawsuit filed against it for antitrust and consumer protection violations, EA has agreed to give up its exclusive license to produce college football games (although it retains its NFL license).  Although the settlement still needs the court’s approval to become official (with a hearing date scheduled for late September), its believed (hoped? prayed?) that this decision will lead to the resurrection of Sega’s football franchise.  With Sega nipping at its heals again, gamers everywhere can hopefully look forward to better, cheaper college football games and maybe, down the line, a version of NFL 2k22.