Who Claims the Real 12th Man?

Football is serious business at Texas A&M University, which recently expanded its stadium, Kyle Field, to a capacity of 102,512. This expansion made Kyle Field the largest in the SEC. Football at A&M is also big money; the expansion in capacity came at a cost of roughly $485 million. Students at A&M (as well as alumni) take football very seriously as well, and are known for their love of traditions. One of the oldest, and perhaps best known tradition is that of the Twelfth Man. The Twelfth Man tradition originates in 1922, when E. King Gill left the stands and suited up, ready to help the shorthanded Aggies should the need arise. Now, the entire student body is the Twelfth Man, standing by to aid the team whenever and however it may be needed. Kyle Field is the “Home of the 12th Man,” and Texas A&M holds a trademark on the phrase and as well as trademarks on a few variations. Regardless of the apparently common usage of “12th Man” in football, according to the United States Patent and Trademark Office, Texas A&M owns the expression. The word mark “12TH MAN” was first obtained in 1989 and remains current.

The A&M trademark (somewhat) recently came to the attention of the public due to disputes centering around the use of the 12th man mark by the Seattle Seahawks. The Seahawks retired jersey number 12 in 1984 in honor of the loyalty of the fan base. In 2006, Texas A&M and the Seattle Seahawks settled their dispute with a license agreement. Essentially, Seattle agreed to pay to be able to use “12th Man.” Seattle agreed to pay $100,000, plus a annual fee of $5,000. After the expiration of the agreement, unless a new agreement is reached, Seattle may still use the number “12” but may not use the phrase 12th Man. A cursory glance at the Seahawks’ website suggests that the team has decided to use “12s” and the “spirit of 12” as their slogans rather than risk further disputes with “12th Man.”

Another dispute centering on usage of the “12th Man” slogan has arisen, this time with the Indianapolis Colts allegedly infringing on the venerable Texas A&M slogan. Apparently, Texas A&M sent the Colts a cease and desist letter when Indianapolis used the 12th Man mark in 2006, at roughly the same time as the Seattle dispute. However, no more shots had been fired until now, where the Colts’ use of the phrase “Join the 12th Man” in advertising material spurred Texas A&M to file suit. The Chancellor of the Texas A&M University System, John Sharp, was quoted as saying “[w]e bear no ill will toward the Indianapolis Colts,” and “[w]e simply want them to respect our trademark rights. Our actions are consistent with our previous trademark enforcement efforts in this regard.” It remains to be seen what will come of this lawsuit, but given the resolution of the Seahawks dispute and the (relatively) small amounts of money involved, it seems likely that the parties will reach some sort of settle.

*Tyler S. Hood is a third-year law student at Wake Forest University School of Law.  He holds a Bachelor of Science in Chemistry from the University of North Carolina at Chapel Hill, and a Master of Science in Organic Chemistry from Texas A&M University.  Upon graduation, he intends to pursue a career in patent law.