Its Super Bowl week, and the Seattle Seahawks are back to defend their title against the New England Patriots. However, the Seahawks have made the news for some of their off-field business endeavors this week. The Seattle Times has reported that the Seahawks have filed applications for multiple trademarks since their Super Bowl victory last year. One of these applications is for "12".
The Seahawks refer to their fans and their stadium as the 12th man, largely due to the noise of the crowd not allowing opposing teams from hearing each other on the field. The team has previously attempted to trademark "12" twice, to no avail. Their applications for "12" were previously denied due to a conflict with a NASCAR team trademark and a hotel's trademark. Currently, the Seahawks are attempting to trademark "12" in the font that appears on their jerseys.
But what is a trademark? A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from another.
Effectively, the Seahawks application for "12" in their jersey's font is asserting that it identifies and distinguishes its source as the Seahawks. However, this mark is likely not distinctive enough for trademark registration. Instead, this mark would likely be found as generic. The block letter jersey font, as shown in the picture above, is strikingly similar to many other football teams' fonts, at every amateur and professional level. Because a trademark must identify and distinguish its source, and the term "12" is not distinctive enough on its own, the font's similarity to other team fonts weakens the strength of the mark.
Generic marks can be trademarked if the mark has acquired secondary meaning. That would mean that despite its prima facie generic qualities, that consumers have come to associate the mark with the source of the goods. Although there may be an argument that Seahawks fans may associate articles bearing "12" as having originated from the Seahawks, that argument seems somewhat tenuous. The strong generic nature of the mark may be difficult to overcome and achieve secondary meaning.
Although it should be encouraged for sports teams and athletes to pursue trademark opportunities to protect their brands, the Seahawks attempt to trademark "12" appears to be an overreach.
Earlier this year, I launched 1337 Sports Management, a sports agency dedicated to servicing professional gamers in the eSports industry. Building off of my my Sports Law practice here, starting my own agency has always been a desire and the logical next step in my career. As many sports agents do, I will maintain my law practice and my agency simultaneously, and I expect my law practice and agency to benefit from one another.
Many of the legal issues faced by businesses and athletes are also prevalent in the eSports industry. However, eSports has long needed the professional assistance of lawyers and agents to fully harness their revenue potential. Individual players and team businesses have long been denied the compensation and legal rights they are entitled to/deserve. With my law practice and sports agency, my goal is to help rectify some of these longstanding issues in the eSports industry.
I'm excited for the future of my law practice and sports agency. I hope you enjoy the ride with me!
Recently, Microsoft announced changes to its game content usage policy that have Youtube and Twitch content creators upset. The new policy makes several changes to how Microsoft handles its intellectual property, namely its video games.
Most notable of the changes is that Youtube and Twitch video creators can no longer use the name of a Microsoft game in their video's title. This particular change has upset video creators, who derive substantial revenue from Youtube, and would otherwise rely on game names in their video titles to inform viewers what the footage is of. Microsoft uses the example that users will no longer be allowed to use the name "Halo" in video titles. This rule encourages the creation of generically listed videos which non-subscribed users will have a hard time locating. This may result in having fewer views, which would lead to a plateau or decrease in revenue for the content creator.
Why is Microsoft doing this?
Microsoft's rule change is entirely about protecting its intellectual property, for better or worse. One of the key points to any potential trademark infringement suit (no suit that I am aware of has been filed) is the strength of the infringed mark, or in this case, the game names. In such a lawsuit, trademark owners must show that they have taken steps to protect their mark to prevent its dilution. By disallowing Youtube and Twitch video creators (its unclear who else is effected) from using the trademarked game names in the titles of videos, Microsoft is attempting to prevent the dilution (or weakening) of its trademarks. Such a tactic may be unnecessary, as Microsoft has plenty of evidence to support that the marks are strong in spite of use on Youtube videos.
What can video creators do?
Video creators can still adhere to Microsoft's new policy and loosely reference the game which is in the video. This may help:
Referencing something closely connected to a trademark without actually using the protected trademark is a lynchpin of ambush marketing. If done successfully, its entirely understood what the content is referencing without ever using a prohibited trademark. Similar tactics can be utilized by video creators to deal with Microsoft's new rules.
Social Media and athletes have a tricky relationship. On one hand, interacting with fans and other athletes on social media can have a positive effect on the athlete's brand. On the other hand, misstatements, insults, or inflammatory comments can cause immense harm for the athlete's brand. This damage can be especially evident if a company the athlete endorses determines the statement to violate a morals clause in their contract. In some cases, negative social media posts may impact an individual's career as a professional athlete before it even starts.
It has been standard practice for college athletes to have their social media accounts monitored by their team. College sports teams also monitor/review the social media accounts of prospective athletes.
Three years ago, an unnamed college coach was recruiting two basketball prospects from Fairport High School. However, upon reviewing the recruits' social media accounts, the college coach determined that one of the recruits did not represent the College's values and standards. Subsequently, the college coach ceased recruiting the athlete. Interestingly, the recruit's Twitter was not filled with illegal activity, but contained frequent use of vulgar language and made several references to partying. Those posts were enough to cost the young man a potential scholarship.
Undoubtedly, athletes are public figures. In the hyperconnected world of today, aspiring professional athletes must be prepared to act as professionals at an early age. Young athletes must realize/be instructed that anything they have ever posted on a social media account is available to anyone that wants to dig deep enough. Here are some tips for aspiring, young athletes to easily control their public image by navigating the minefield of social media:
Social media can be tricky for the young athlete, but following some of these best practices will help enhance their budding brand as they progress in their careers.
Quiles Law is an esports and sports law firm based in New York City.
60 Bay Street, Suite 700
Staten Island, New York 10301
(P) (917) 477-7942
(F) (917) 791-9782
Attorney Advertising. The information presented in this site should not be construed to be formal legal advice nor is it intended to form any attorney/client relationship. Our attorneys, collectively, are licensed to practice law in the States of New York, New Jersey, and Pennsylvania. Copyright Roger R. Quiles, Esq., 2017. All rights reserved.