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Getting the Facts about the 12th Man

January 31st, 2006

I’m not big into sports, as my friends can attest. But with the Seahawks going to the Super Bowl this Sunday I’ve recently become more interested. It’s a civic pride thing. This afternoon I learned that the Seahawks are being sued by Texas A&M for use of the trademarked phrase “12th Man” to honor the fans supporting the 11 men on the field. Wow… sports and law combined!

First, here’s some fabulous local reporting on the subject from the Seattle Times. My favorite part is where the Seattle University Law Professor explains that a temporary restrating order is a “a type of emergency motion.” Profound insight from our fair city’s lesser law school.

I did a little research myself to see if I could predict any outcome. Texas A&M has two trademarks for 12th Man. You can see them for yourself here and here. The first one was filed in 1990 and protects merchandise (bumper stickers, novelty buttons… towels) while the second, filed in 1994, protects “entertainment services, namely organizing and conducting intercollegiate sporting events.” The registration claims first use in commerce in 1922. A court in this situation will compare these dates against the Seahawks first claimed use in 1984 when they retired the jersey number as a dedication to the fans.

So, how is the case going to turn out you ask? Well, my first guess is not well for A&M. I say that because, in the words of the Seattle Times, they filed their case “in the 85th District Court of Brazos County, Texas, where Texas A&M is located.” Trademark law is predominately a federal issue. Where it is a state issue it has limited protection. Texas law cannot bind the actions of our Washington State based boys in blue (err… steel gray?). Why file in a state court then? Because you are praying for state prejudices to factor in your favor. Of course, that’s the very reason why the Federal removal statute exists. Not only will the Hawks be able to move into a federal court, they may be able to move to a Seattle court since that’s where the supposed infringement is occurring.

Procedural wrangling aside, Texas A&M has a tough row to hoe. Not only has the Hawk’s use been since before the registration, A&M hasn’t attempted to enforce it’s trademark until the Hawks got good in the past few seasons. It’s decision to go to court now, the eve of The Big Game™ is even more telling. These factors are called bad facts in the legal world and lead to dismissed cases. Then you’ve got the registration itself, which seems to limit itself to collegiate football. Assuming the mark is valid (which is questionable), and they survive summary judgment for the above listed reasons, it will boil down to a likelihood of confusion test. Will the average consumer confuse Texas A&M with the Seattle Seahawks? Stay tuned to see what your federal judiciary has to say…

probonogeek Uncategorized

  1. Karl Smith
    January 31st, 2006 at 08:21 | #1

    Now I haven’t actually been to law school, so you’ll have to edify me as to the legal terminology behind it, but there’s also the small matter of its exceedingly common usage. I would argue that references to the “12th” man exceed (proportionately speaking) references to “xeroxing” something or asking for any old soda by saying you want “a coke.” Few football games with active crowds go by, college or pro, without the term being used. I’ve also heard it repeatedly in video games (such as NCAA Football 2003-2006). This may be a woeful misappropriation of a legal doctrine by me, but doesn’t its common usage in a generic fashion have some impact upon the right of Texas A&M to enforce it?

  2. Sean Kellogg
    January 31st, 2006 at 08:30 | #2

    It certainly does… but as I’m not very familiar with football I didn’t want to base any legal conjecture on my limited knowledge. If, as you say, it has common usage throughout all of football, then there is no relationship in the consumer’s mind between the “12th Man” and Texas A&M. If there is no relationship then there is no likelihood of confusion.

    But such a determination assumes the case actually is decided on its merits. The Hawks would be well advised to stick to arguing limited scope and dates instead of going for the knockout punch. Could be a risky decision.

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