Tuesday, November 09, 2010

TTAB Bully Watch: Major League Baseball Opposes Design Mark Comprising a Head Wearing a Reversed Baseball Cap

Far be it from me to say who's a trademark bully, but let's consider this trademark opposition. You be the umpire. Major League Baseball has filed a Section 2(a) opposition to registration of the design mark shown immediately below, for various clothing items, claiming that the mark would create a false connection between Applicant and MLB in the minds of consumers. Major League Baseball Properties, Inc. v. Michael MacLaverty, Opposition No. 91194816.

MLB alleges that it has "long placed its Rectangular Marks [show below] on the center of the back of baseball caps, which are sold, distributed and promoted by Opposer, and Opposer’s Rectangular Marks and the placement of such marks on Opposer’s headwear is [sic] well-known to consumers, fans, press, media and the public."

[Note that Applicant's mark is not a rectangle on the back of a cap, but the complete drawing shown above.]

According to MLB, "Applicant’s Mark features a man wearing a baseball cap bearing a rectangular shape that is identical to the rectangular shape of Opposer’s Rectangular Marks, and which is positioned in the exact location that Opposer’s Rectangular Marks are positioned in connection with baseball caps. Upon information and belief, Applicant intends, and consumers and the public will understand, the rectangular shape on the hat in Applicant’s Mark to be associated with Opposer."

What say you? Do you think MLB has rights in rectangular-shaped designs placed on the back of baseball caps? Do you think there is any likelihood that consumers will connect the applied-for design with Major League Baseball? If you were Applicant, what would you do?

Text Copyright John L. Welch 2010.


At 10:22 AM, Anonymous Kevin Wimberly said...

This makes me sick. Attorney Licciardi should have her bar card shredded for signing her name to that pleading.

My IP blog (which is on a continual state of life support) is generally focused on Florida issues, but this will be making an appearance soon. Streisand effect time.

At 8:11 PM, Anonymous Anonymous said...

Very sad this was filed. It gives trademark attorneys, who are generally more above board than others in the legal profession, a bad name.

MLB files and then immediately suspends? If this guy did not have an attorney I am sure there are a few firms who would handle pro bono for fun.

Why can't MLB handle outside TTAB by starting to address the issues before publication? Then they are too busy to deal with it so they get a suspension and then it drags out? Makes no sense at all.

Hope the MLB attorneys read this blog, but apparently they are not watching over the filings.

This law firm must be making a lot of money on these filings. If everyone on the other side decided not to suspend and just march forward it could get expensive!

At 11:19 PM, Anonymous Steve Baird said...

John, we have ESPN on in our house 24-7, and my kids think this is a good claim for MLB . . . . They easily recognize the rectangular logo placement as source-identifying, so I'd be surprised if the MLB is scared-off by any "trademark bully" defense.

At 6:25 PM, Anonymous Anonymous said...

If the rectangle on the design mark had the ball/batter inside of it, then obviously it would be a different story, but as it is c'mon man.

Maybe MLB should file an application to protect only a rectangular border on their hats.

At 2:46 PM, Anonymous Marta R. said...

The future, in 7 easy steps:

2010: MLB claims ownership of drawing of rectangular label on back of hat.
2011: MLB claims ownership of rectangular design on front of polo shirt.
2012: MLB claims ownership of rectangular shape of recruitment posters for Little Leagues.
2013: MLB claims ownership of rectangular shoe boxes that might contain athletic shoes.
2014: MLB claims ownership of rectangles, sues publishers of math textbooks.
2015: MLB claims ownership of podiums, behind which athletes might stand.
2016: MLB claims ownership of US President, who is sworn in behind rectangular podium.
2017: MLB claims ownership.

At 7:59 PM, Anonymous Anonymous said...

Marta rocks (comment below).

At 8:59 AM, Anonymous Anonymous said...

A number of other commenters are quick to say MLB is beating up on a little guy, but I think MLB has a point here. It would be interesting to the know the 3d party picture better re rectangles on ball caps. I suspect the same same commenters that are beating up MLB would support MLB if the cap was turned around and the applicant had a stylized rendition of a ball club's logo.

At 11:00 AM, Anonymous Anonymous said...

This seems like a plausible argument for the MLB. I think it would be different if the item on the back of the hat was clearly NOT an MLB logo, but the reductionist style of the overall drawing does seem to me to imply that the rectangle is meant to represent or at least imply +a "reduced" MLB logo.


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