Are trademarks football's MVP?
We’re deep into football season now, and I’m hoping to make you see the next game you watch a little differently. You’ve got trademarks all over your screen.
Some of them are obvious. Like team names and mascots. But what about the players’ uniforms, the color of the football field, or the fans’ chants and hand gestures? You’ll be amazed how deeply trademarks are integrated into the game.
Let's start off with some unexpected oddities.
THE COLOR OF THE FOOTBALL FIELD
Yes, you read that right. If you've ever seen the field at Boise State's Albertsons Stadium, you'll know what I'm talking about. If not, take a quick look here. Boise State claims it was the first "school to have a non-green football field," and that it used the bright blue color on its turf 20 years before any other school changed their fields from green.
For more than a decade, Boise State has held a U.S. federal trademark registration for use of the color blue on a stadium's artificial turf. That doesn't mean they own the color blue or that they can stop everyone from using blue on anything and everything. The registration is very narrowly limited and only protects use of that color in that context to identify the source of "the presentation of intercollegiate sporting events and sports exhibitions rendered in a stadium, and through the media of radio and television broadcasts and the global communications network." So, if you have a pair of blue sunglasses, Boise State can't shake their registration at you and tell you to stop wearing them. But no other school stadium can use blue on their artificial turf without negotiating a deal with Boise State.
You may have noticed non-traditional colors on other college stadium fields. The Eastern Michigan Eagles play on a gray field, while the Eastern Washington Eagles play on a red field, and the Lindenwood Lynx and Central Arkansas Bears like to mix things up by alternating red and gray or purple and gray every five yards. If you're wondering why you've never seen a stadium field any color other than green in NFL games, that's because the NFL banned the practice.
FAN CHANTS AND HAND GESTURES
One of the most widely-recognized football fan hand gestures is the Hook’em horns gesture used by fans of The University of Texas at Austin. You can learn more about its history here. Hook’em horns is also what their fans chant. The university doesn’t own trademark rights for fans to use this gesture or chant in support of their team. Remember, trademarks are source identifiers: they have to be used in a way that tells consumers where particular products or services come from.
Instead, the university has registrations for use of the wording HOOK'EM HORNS and use of a design showing a hand making the Hook’em horns gesture used with things like decals, shirts, drinking glasses, and other fan merchandise. So, the university absolutely could enforce its trademark rights by stopping the unauthorized sale of shirts with the gesture or the chant printed on them. But the university can't, for example, use their trademark registrations to make a fan from another team stop using the Hook'em Horns gesture mockingly. (Although a football player on an opposing team who makes the gesture with the horns pointing down – an insult – may receive a penalty for unsportsmanlike conduct, that's due to game rules, not trademark law.)
There are a number of coveted awards in both professional and college football. But one of the oldest and best known is the Heisman trophy, awarded to "the most outstanding player in college football" each year. The award is named after a deceased athletic director and former football player named John Heisman, and losing it can be just as bitter and controversial as winning it is joyful and . . . controversial.
When O.J. Simpson lost the civil lawsuit for the wrongful deaths of Ron Goldman and Nicole Brown, his assets (including his Heisman trophy) were seized and auctioned. The trophy sold for $230,000, and today the sale of any Heisman trophy awarded since 1999 is banned.
Fox Sports football analyst Reggie Bush won the Heisman trophy while a student at USC and later sparked heated debate when he voluntarily forfeited his Heisman title and returned his trophy to the Heisman Trust. All of this happened in response to an NCAA investigation that alleged Bush violated NCAA rules that were in place when he was a student by accepting gifts from an agent.
All of that to say, the people awarding this trophy and football fans take it very seriously. The Heisman Trophy Trust owns registrations for both HEISMAN and HEISMAN TROPHY for use in "promoting interest, excellence and sportsmanship in intercollegiate football through the medium of an annual award." That means no one else can award a college football player a HEISMAN or HEISMAN TROPHY. So if you're disappointed with the results of the vote and think someone else should've won the Heisman, feel free to give them your own trophy. Just don't call it a Heisman.
Every year, football fans descend on the same cities at the same time of year for bowl games. Because some of the oldest bowls (like the Cotton Bowl, Peach Bowl, and Rose Bowl) are major events that generate a lot of money, it's no surprise that their names are protected under trademark law. But different teams play each bowl every year, so who owns these trademarks? The short answer is whoever organizes the event and/or provides the stadium facilities. For example, the City of Pasadena California owns the mark registrations for ROSE BOWL, while the State Fair of Texas owns the mark registration for COTTON BOWL, and Georgia-based Peach Bowl, Inc. owns the mark registrations for PEACH BOWL.
Given that fans (especially little kids) sometimes love the mascot more than the team, and that mascots often feature prominently in team merchandise, the USPTO's trademark register has lots of registrations for mascot designs. Can I put forward my vote for creepiest mascot? No offense, Duquesne, it's all in good fun, but this guy weirds me out.
It's really common sense: We can't have the Steelers playing the Steelers, or the Cowboys playing the Cowboys. Each team has its own name, and they get to protect it. So, Dallas Cowboys Football Club, Ltd. owns registrations for both DALLAS COWBOYS and COWBOYS. Pittsburgh Steelers LLC owns registrations for both PITTSBURGH STEELERS and STEELERS. No one else can come along and set up a football club with a confusingly similar name.
While top athletes may make millions for their work on the field, they often make just as much (if not more) off of endorsement deals. That means their names have serious value. With players like Aaron Rodgers and Tom Brady reportedly making more than $11 million and $52 million, respectively, from endorsement deals over the past year, of course both players have locked down their trademark rights with registrations. Aaron Rodgers has a straightforward approach: a registration for use of his name with "endorsement services, namely, promoting the goods and services of others."
Tom Brady not only endorses others' products and services, but he also co-founded TB12 (a kind of nickname for him formed by combining his initials and jersey number). That mark is registered for all kinds of things including braces, resistance bands, weighted vests, bedsheets, sleepwear, foam exercise rollers, an app that provides information about "wellness, exercise, fitness, nutrition, and supplementation," personal trainer services, and physical therapy.
When you see players in these jerseys, do you know what team they play for? Ohio State (and the USPTO) think you do. That's how Ohio State (or, let's be correct, The Ohio State University), was able to register its football uniforms as marks used with "Entertainment services, namely, collegiate football games and exhibitions." You can see the registered designs here and here. That means no other college football team gets to use uniforms quite like these for their players.
DON'T FORGET THE MARCHING BAND AND DANCE LINE!
If you live for the halftime show, you'll be happy know that the names of marching bands and dance lines can be protected, too. For example, Jackson State University owns registrations for PRANCING J-SETTES (the name of its dance line) and SONIC BOOM OF THE SOUTH (the name of its marching band). You can watch their tribute to Prince here. Did I save the best for last, or what?
This information was posted on December 13, 2022 and was accurate as of the date of writing. However, the law changes frequently, and readers should not rely solely on general online information but instead should consult a licensed attorney by asking questions about their specific issues when they need legal advice.