Monday, January 30, 2006
The 12th Man
Texas A&M (not ATM, Derek) is suing the Seattle Seahawks for their use of the term 12th man. According to lore, in 1922, Texas A&M had injuries and was running out of players. They called a former football player (who had quit the team to play basketball) in from the stands to suit up. Although he didn't play in the game it became a tradition at Texas A&M to refer to the fans as the 12th man. In 1990 they got a trademark on the phrase. In 1984 the Seattle Seahawks retired the #12 in honor of their 12th man. Texas A&M sent the Seahawks a cease and desist letter. Seems petty, but if they were legally granted a trademark I think they are entitled to enforce their rights. I don't think a trademark should have ever been issued for this or any other common word or phrase. Three-peat, I could see. 12th man, nuh-uh. I hope PP's official intellectual property expert will weigh in with his informed legal opinion.
I like the A&M tradition of making out with your date after each score. One of the reasons I entertained the thought of going there.
ReplyDeleteAlthough trademarks that are descriptive should not receive protection without secondary meaning (when most associate a descriptive term with particular good or service), protecting the 12th man mark for a fanciful, arbitrary or suggestive use is proper. For example, 12th man for a name of a beer would be arbitrary and protectable. In this case Texas A&M, has registered 12th man separately for jewelry, intercollegiate events,college scholarships, novelty items, logos and signs in connection with stickers and clothing. All of these uses are either arbitrary(jewelry, t shirts) or at least highly suggestive (college scholarships). Nothing stops others from using 12th man in a descriptive way, e.g. The 12th man on the team. However, even if it is used descriptively, if the use of the mark is likely to be confused with another's tradmark, then the use should be enjoined, unless it is being used as a generic term. In my opinion, retiring the number 12, if it is Seattle players actual number, by itself is not confusing and generic. The retiring the number 12 as a gimic and refering to its in advertising or the sales of goods or services as "the 12th man" is likely to be confusing and should be enjoined. Even if Seattle does not use the term 12th man but the 12 is advertised as a gimic without connection to a particular player, I would argue that Seattle use is diluting A&M's mark had should also be enjoined.
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