Tuesday, November 24, 2009

Major League Baseball Opposes Don Mattingly Logo

Okay, all you baseball fans out there! Here's one for the Hot Stove League. Major League Baseball has opposed two applications filed by Mattingly Hitting Products, Inc. to register the logo shown below left for "baseball and softball equipment, namely, bats, gloves, mitts, bat cases, bat bags, and batting gloves" and "clothing, namely, shirts, pants, athletic uniforms, caps and hats." MLB claims a likelihood of confusion with its "Silhouetted Batter Logo," registered for the same goods (below right). Major League Baseball Properties, Inc. v. Mattingly Hitting Products, Inc., Opposition No. 91177266.


Will Mattingly strike out or hit a home run? What say you? How do you like this affirmative defense: "Opposer may have failed to mitigate losses and damages"?

Don Mattingly

Text Copyright John L. Welch 2009.

11 Comments:

At 1:01 PM, Anonymous Anonymous said...

I don't see any likelihood of confusion between the logos. Based on this opposition, it appears that MLB will oppose any logo that incorporates a baseball player, a bat and a ball. Hopefully the TTAB will balk at MLB's confusion argument.

 
At 2:14 PM, Anonymous Anonymous said...

The likelihood of confusion here is an outside pitch, and MLB is overreaching.

 
At 6:52 PM, Anonymous Anonymous said...

I agree -- no likelihood of confusion. MLB has been using that mark in that way for years -- nobody will be confused by the Mattingly logo.

As for Mattingly's defense, where is the failure to mitigate on MLB's part? In fact, where are the damages that MLB already sustained? Is failure to mitigate based on not opposing sooner? Or did Mattingly start using the logo before submitting the PTO app and MLB should have sued him then?

 
At 6:59 PM, Blogger John L. Welch said...

The TTAB has no power to award damages. An opposer does not have to prove monetary damages. So I think this "affirmative defense" is bogus and is probably left over from some form answer in a civil action.

 
At 4:36 AM, Anonymous Anonymous said...

Seems like protectionism gone mad. Anyway what about the minor league logo? Surely that is more confusing than the Hitman's image.

 
At 12:42 PM, Anonymous Anonymous said...

Mattingly should be able to hit this one out of the park.

 
At 10:45 AM, Anonymous Anonymous said...

Looks like MLB's MO. Oppose. Then will likely request suspension for negotiation talks. Suspend. Suspend again. Yawn. Then suspend again. All the while seeking some sort of coexistence agreement intended to usurp the other's trademark rights. I wonder if MLB would have opposed if applicant weren't an ex-MLB player? Probably.

2d? I think MLB's 2d analysis is "juuuust a bit outside."

 
At 8:26 AM, Anonymous Jay Spiegel said...

I agree with the first Anonymous comment. MLB's image of a player swinging a bat toward a ball doesn't give MLB exclusive right to any image of a player swinging a bat toward a ball. The respective marks have distinctly differing commercial impressions.

 
At 9:12 AM, Blogger baseballart said...

Mattingly's mark has the batter batting left-handed. MLB's batter is right-handed. Where is the possibility of confusion?

 
At 6:54 PM, Blogger bluebeard said...

@babeballart, while I agree there is no likelyhood of confusion, you cannot determine that the MLB player is left- or right-handed, as you cann ot tell whether you are looking at the front or the back of the player.

 
At 1:50 PM, Blogger John L. Welch said...

Thanks, Bluebeard. I always saw the MLB batter as right-handed, maybe because I'm a right-handed hitter myself. Now, though, when I stare at the logo for a while, I can see that it could be a left-handed batter. Just goes to show that you can teach an old dog new tricks.

 

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