“FYI #Broncos, the 12th Man belongs to Texas A&M. We saw the flag today and will defend our trademark. #TAMU #gigem.”
If you read that on Twitter, without any context, what would you assume? First, the author is clearly affiliated with Texas A&M University. Second, the author sounds upset about something. Third, the author sounds like a 12-year-old boy throwing a tantrum.
Would you be surprised to learn that instead of a whiney 12-year-old boy, that tweet belongs to none other than A&M’s Vice President for Marketing and Communications, Jason Cook? Mr. Cook decided that he was going to aggressively protect his school’s trademark. He was in fact so serious about protecting the school’s intellectual property that he turned to Twitter.
You might also be surprised to learn that for over two decades, A&M has held the trademark for “12th MAN.” According to Aggie lore, the term dates back to 1922 and a student named E. King Gill. A&M was playing the #1 school in the country and when they started running out of reserve players, the now legendary Gill emerged from the stands, ready to help his team. “He came to be thought of as the Twelfth Man because he stood ready for duty in the event that the eleven men on the gridiron needed assistance.”
Despite his threats over Twitter, Mr. Cook and the Aggies have yet to formally begin legal proceedings against the Denver Broncos. But, the Broncos may want to be prepared because this would not be the first time that A&M has sued an NFL team for using its “12th MAN” trademark. On January 30, 2006, while the Seattle Seahawks were in Detroit preparing to play in the Super Bowl XL, A&M filed a complaint against the Seahawks, alleging infringement and dilution of A&M’s 12th MAN trademark under state common law and the Lanham Act. The Aggies initially filed the case in state court and simultaneously requested a temporary restraining order preventing the Seahawks from using the phrase (again, within days of playing in the Super Bowl). The case was removed to federal court where, as might be expected, things slowed down.
Although the Seahawks legal department was probably more concerned with the looming Super Bowl, they could have made a few strong arguments in defense of their continued use of “12th MAN.” For example, the Seahawks have been using the phrase since 1984, several years before A&M applied for its trademark. If the Seahawks could demonstrate that they obtained common law rights to the mark before A&M applied to register the mark, they could then argue that it was already protected, at least on a territorial basis. Their best and most simple argument would be that the phrase is not unique and has become so generic that their use of it was fair.
It would have been interesting to see Seattle defend its use of “12th MAN,” but the case was settled out of court in May. According to some news outlets, the Seahawks agreed to pay A&M a one time payment of $100,000 and also agreed to pay a $7,500 per year licensing fee (and no, those are not typos and I did not misplace a comma or period).
It should be obvious at this point (especially if you clicked on that last link) that the Aggies take their TM very, very seriously. The Broncos might need to raise ticket prices or maybe look into obtaining their own trademark to raise some extra revenue.
To sum up, please allow me to borrow a quote from Steve Kelley, a columnist for the Seattle Times. “Yo, Texas A&M, one word for you — chill! Cease and desist with your whining. Get a life. Get 12 of them.”
* Rob Abb is a third-year law student at Wake Forest University School of Law and is President of the International Law Society. He holds a Bachelor of Arts and Science in Political Science and Asian Studies from the University of Michigan. Upon graduation in 2012, Mr. Abb plans to practice international law. He is spending his last semester in Washington, D.C., interning at the Federal Communications Commission.