Tuesday, June 14, 2005

Name game

Alternative title: Give me back my trademark!

According to the Associated Press:

The retailing arm of Major League Baseball sued a company on Monday that claims it owns trademark rights to the name Washington Nationals.The lawsuit in U.S. District Court in Manhattan said Bygone Sports LLC tried to "turn a quick, undeserved profit" by seeking trademark registration rights to the club's name, even though it has been used for decades to refer to Washington teams.
Major League Baseball Properties Inc. and Baseball Expos L.P. asked the court to declare that the trademark does not belong to the company because its sole purpose in filing for a trademark was to capitalize on the naming of the new baseball team.

I only took one intellectual property course, and my memory is a bit fuzzy sometimes; on the other hand, Sports Law Blog hasn't weighed in, and my memory isn't that fuzzy. In a word, Bygone Sports LLC ain't cool. In another word, Bygone Sports LLC doesn't stand much of a shot here, unless it gets smart and just settles.

The entire basis of intellectual property law in the United States is undergirded a few principles, which might be summarized as creativity, transformation, and reasonable protection and compensation of ownership rights. Generally speaking, you can't just select a trademark, sit on it, and use it for strong-arming purposes like this. It's lazy; it's stifling; it's unreasonable. The article tells us little of Bygone's intentions other than to make a quick profit, so I can't read much more into the situation.

This begs the question of whether MLB surrendered the Washington Nationals mark in the first place. (I recall articles from last fall to the effect that the Washington Senators mark is owned by Tom Hicks, who owns the Texas Rangers---and, in turn, whose soul is owned by Scott Boras, I suppose.) I can't say; usually, protecting 30-plus years of inactivity (more than that, I suppose) is kind of a waste. I recall a case out of the Second Circuit that involved the use of the name "The Brooklyn Dodger"---a restaurant in Brooklyn, naturally. MLB argued that the Los Angeles Dodgers' ownership (or MLB's own licensing wing; I can't remember) owned the trademark for all purposes and for perpetuity. The court held that it had surrendered several sticks in its "bundle of rights" of ownership, so to speak, and that the restaurant could go on using the name, insofar as it didn't make money off of old Brooklyn Dodgers' pennants or clothing or anything like that.

I'll have to look the case up later, because no doubt I misrepresented some portions of the facts or the law, but you get the drift. This case is different; to our knowledge (addressed above), Bygone Sports isn't doing anything creative or utilitarian with the name "Washington Nationals" except trying to make a quick buck. It will, upon a settlement, as long as it doesn't get greedier:

Although it believed it had primary ownership of the rights, the baseball retailing representative for all major league teams sought to settle the issue to avoid litigation costs, the lawsuit said. After extensive negotiations, an agreement was reached to transfer all rights in exchange for $130,000 in cash, a $10,000 credit at mlb.com store and four tickets to Opening Day 2005 for the new Washington team, the lawsuit said.
According to the lawsuit, Bygone changed its demands to more than $1 million, including a base amount of $495,000 plus a variety of World Series and All-Star game tickets.

Hey, if you can see Ichiro! live, why not, right?

I mentioned this in my own puny Nationals blog--in short, unless they actually made (and sold) shirts/shorts/some form of clothing with "Washington Nationals" on them, they appear to have no case.

It seems like they got a pretty good deal, if only they hadn't botched it by demanding more.
Good analysis, Gray. And a good point, too. No clothing (or collectible paraphenalia, I guess) = no creative use = just sitting on the thing.

Nice blog, btw. I hadn't noticed it before, though it looks pretty recent. I'll update my links tonight or so and throw yours up there.

(PS: You a lawyer?)
Not a lawyer, but in the job that I am presumably performing during the day, I do a lot of patent work--no legal advice, technically, but patent searches and (not legally binding) recommendations on IP strategies and that sort of thing. And hey, I posted something that was actually work-related, and actually a good exercise in the kind of stuff I need to know...

Oh, and their trademark was only for use on clothing, unless they filed others that aren't yet published. This is certainly possible, given how quickly such things are published, but remember that filing a trademark means nothing in the grand scheme of things if you haven't actually used it.

If I recall correctly, I just started this blog yesterday, and it already has far too many posts. Thanks for adding me to your links. There seems to be a pretty small set of Nationals blogs, but definitely some good ones in there (yours included).
If you check the patent and trademark office database, you can see that Bygone Sports registered the trademark in 2002 (before the name Washington Nationals was a glint in Bud Selig's eye).

The guy who runs Bygone Sports seems to license his trademarks to other people who make apparel. It seems he also owns trademarks to the New York Knights (of "the Natural" fame) and some Negro League teams.

I agree with Gray completely on his legal analysis, but I think Major League Baseball shares some of the blame for this for not researching the intellectual property rights before they named the team.
Ask and it shall be given unto you. Appararel (o.k. a shirt) can be oredered from www.washingtonnationalsapparel.com
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The actual timeline is such that Bygone didn't file on the Nationals name until after it was public knowledge that the Expos were going to move. Granted, no location was known at the time, but Bygone took a gamble and then sat on the name. I firmly believe the federal courts will recognize this for what it is: trademark squatting. So...bye, bye, Bygone!
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