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.

– Derek Allen, Attorney –

The front page of Duetsblog currently features a topless woman, eleven people in their underwear, and so many posts involving alcohol that I’m starting to get a little concerned about what Tim and Steve are doing up on the 35th floor during work hours.  I’m not sure exactly what that means, but if our recent posts are some type of Freudian slip that reveal their authors’ subconscious desires, then there are two important take-aways for our readers: first, Anjali is probably your best bet if you need an attorney because she posted about coffee, and second, I’m going to need one of you to come to my office ASAP to remove the scissors Tiffany inevitably embeds in my neck after I point out that she posted about Botox.

I’m not really sure where to take this post from there, but I liked the lede so much that I’m not changing it.  So I guess I’ll just wish everyone a happy Thanksgiving, especially the Green Bay Packers as they attempt to save their season against the notoriously dirty Detroit Lions.

As a frustrated and bored Minnesota Vikings fan, Monday Night Football last evening caught my attention with the division battle between the Green Bay Packers and the Chicago Bears. In case you missed it, the Packers lost to the Bears, despite the Packers typical home field advantage at the legendary Lambeau Field.

As much as the plentiful Packers fans in our office grate on those who still claim to be Vikings fans, I already can hear the celebrations brewing around the water cooler later this morning.

The novelty hat depicted to the left got a lot of air time during the game, probably more than Aaron Rodgers, given his early injury and exit from the game. It even found its way into a State Farm Insurance commercial featuring a crazy Packers fan flying off the wing of an airplane.

In case you’re wondering, the configuration of the novelty hat is protected as a federally-registered non-traditional trademark in the color yellow/gold. The term CHEESEHEAD also is federally-registered as a word trademark for novelty hats. Who owns these trademarks? Neither the Packers nor the NFL — the rights are owned by a brilliant company, with roots in the south side of Milwaukee, called Foamation.

Seems as if the notoriety of Foamation’s novelty hat and brand is growing, so it is only fitting that the product offerings expand beyond the original novelty hat to include all sorts of other novelty headwear, apparel, drinkware, and other gift items.

Given this cheesy brand extension, it is good to see that Foamation recognizes the importance of expanding its trademark portfolio beyond the original novelty hat trade dress and word mark to capture the essense of the trade dress as it migrates to other differently shaped products: “The mark consists of the color yellow/gold and a pattern of pock marks which are circular or oval-shaped depressions applied to the entire surface of the goods in a manner evoking the appearance of cheese.”

Unfortuantely, Foamation is encountering some problems at the USPTO, so we’ll see how much cheese Foamation is willing to invest in overcoming them.

Within the last few weeks the USPTO issued a final refusal on two substantive grounds. The assigned Examining Attorney is maintaining the “failure to function as a trademark” registration refusal, and she is also continuing to refuse registration, asserting that the above drawing of the mark does not match the specimens of use.

Stay tuned, we’ll keep you posted on developments with this interesting non-traditional trademark application.

But until then, gotta love the creativity and ingenuity that flows from an unhealthy sports rivalry, meet the GRATERHEAD: “For too long, the Packers and their fans have raided our stadiums, drunk our beer, eaten our food, and beaten our teams—all while wearing ridiculous wedges of cheese on their heads.”

So, has the CHEESEHEAD finally met its match? It apparently did last night, but in a friendly effort to pander to those grating Packers fans in our office, there is a lot of season yet. We’ll see.

What other anti-Packer and trademark-worthy headwear might we see down the road?

– Derek Allen, Attorney –

For those of you who didn’t stay up last night to watch your favorite team get hosed on the final play, it appears pretty clear that the ongoing dispute between the NFL and its regular officials has reached a boiling point.  The twitterverse is exploding (caution: some NSFW language), news just broke that some of the replacement refs the NFL is using were fired from the Lingerie Football League (!) for incompentence (caution: a slightly NSFW picture of the Lingerie Football League in action), and even those ugly division rivals in purple and gold are apologizing for the call last night.  As a Wisconsin native, I’m still fatigued from hearing people argue about the relative merit of unions, so I’ll stay clear of writing about whether the referees’ union or the NFL is in the right here.  But I will say I’d be thrilled to have even one-tenth of the leverage in my next contract negotiation that the real refs must have going into their meetings with the NFL this week.

For the expected takes on all sides of the issue, I point you generally to this morning’s internet, where the call seems to be everywhere. (You know it’s big when its on the front page of the Drudge Report. I’m just waiting to see the Romney and Obama campaigns blame each other for the call. UPDATE: Here it is!)  Of course, you come to Duetsblog to find out about issues that are important to you: to wit, are the replacement referees worse than their video game counterparts?  To the evidence!

In the video game category, I’d suggest looking here, here, here, here, and here.  A collection of videos of the replacement refs in action can be found here.  If you’re undecided after those examples, feel free to do your own independent research (assuming you haven’t already been fired after your boss catches you watching YouTube videos of bad video games call while you’re supposed to be working).  Then, if you actually had the werewithal to come to a conclusion on this, you’d be remiss not to post your thoughts in the comments.  As for me (and I assume reletively recent Packer convert and Duets superstar Catlan McCurdy), I’ll just be drowning my sorrows with coffee this morning.

For the two or three of you that have made a habit of reading more than the headlines of my blog posts, you may recall that I have occasionally authored posts about "personal branding" as it relates to athletes and celebrities.  Given my general interest in the topic, I couldn’t help but pile on to the information overload and semi-unexplainable hype surrounding the one, the only, TIM TEBOW!!!

For those of you who aren’t sports fans, Tim Tebow is the current quarterback for the Denver Broncos. By all objective statistical measures, Tim Tebow is AT BEST a slightly below average NFL quarterback. However, for reasons that are inexplicable, the Denver Broncos have won all but one game that Tebow has started this year with almost every single win occurring in dramatic fourth quarter comebacks. As noted by one esteemed author on the always entertaining sports/cultural commentary website, Grantland, Tim Tebow is the “most (curious, complicated, downright strange) polarizing athlete of our age;” his status as such likely being attributable to his outward (although not necessarily overbearing) Christian beliefs and his penchant for succeeding where rational analysis suggests that he should fail.

He’s spawned a new craze – Tebowing – which is similar to the flash in the pan that was known as “planking.” He’s developed a rabid fan base and an equally rabid anti-fan base. At this point, Tebow is white hot in the sports world and is probably the second biggest story of the NFL season behind the hated Green Bay Packers’ quest for a perfect season. So this raises the following question: In the world of personal branding, is Tebow the next Pet Rock or is Tebow the next Apple? The answer is, of course, yet to be written, but it would seem that Tebow is probably falling into the “fad” pile. 

According to Joel Best as reported in Discovery News, the anatomy of a fad consists of three essential parts: emerging (the fad starts small and is picked up by “early adopters”), surging (the fad quickly gains momentum as promoters rush to exploit the fad and more people see it) and purging (the “early adopters” tire of the fad and look for the next new thing, and the public gradually loses interest). It would seem that each of these is likely to apply to Tebow. The emerging phase with the early adopters likely arose from Tebow’s success as a college quarterback and the transfer to the Denver fan base. The surging and “quick momentum” is demonstrated by the mere existence of “Tebowing.” Finally, the purging phase is likely to occur when statistical probability catches up with Tebow and the remarkable winning ceases.

Given this, if I were promoting a product, I wouldn’t be buying into the Tebow brand long term.