Concussion Protocol: Can You Tell The Difference Between Soda And One Half Of A Football Team?

from the crushing-it dept

There are a surprising number of really dumb trademark disputes involving professional sports, what with athletes jumping at the chance to trademark their nicknames and phrases, and that really dumb 12th Man thing. But even this cynical writer was taken aback at the news that Dr. Pepper had stepped in to block the Denver Broncos from trademarking the term “Orange Crush”, the nickname for the team’s defensive squad spanning nearly half a century.

An online record shows that the Broncos filed paperwork to trademark the phrase “Orange Crush” in September 2015 through the NFL’s chief litigation officer, Anastasia Danias. Last week, lawyers for the beverage makers filed an opposition to the attempt.

If neither the Broncos nor the NFL abandon their filing, the case will be heard before judges on the Trademark Trial and Appeal Board, which will make a call as to whether the team should be allowed to register the mark.

This again leads me to wonder whether all the words we’ve expended here at Techdirt discussing the particulars of trademark law have been for naught. One of the basic concepts of trademark law is that marks are typically applied narrowly, usually by industry. So, for instance, if Dr. Pepper were to notice another company using the term “Orange Crush” to sell beverages, it would have absolutely every right to stop that. But all the categories for which the Broncos propose to use the term revolve around its use at sporting events and merchandise related to those sporting events. The Broncos are not, by all accounts, planning to make soda. The Denver defense has been using that nickname, however, going back to the 1970s. Given that the two industries are fairly distinct, the court should have an easy time determining whether there will be any customer confusion to consider.

We here at Techdirt have a suggestion. While the typical test for whether confusion will occur is the infamous “moron in a hurry” test, which asks if idiots on the go would be confused by the use of a trademark in commerce, the inclusion of an NFL team in this dispute opens the door to a slightly altered version of this test. We suggest that the court gather up current and ex-NFL players who have been thoroughly concussed at least twice, present them a can of Orange Crush soda along side the entirety of the Denver Broncos defensive squad, tell them to run the 100 yard dash, do a touchdown dance, and then ask them if they are confused. Because even they won’t have a hard time telling the difference between soda and a 3-4 defense.

I’ll also note for the record that Dr. Pepper’s Orange Crush product has managed to survive Orange Crush hot sauce (Trademark 86317242) as well as Orange Crush tobacco (Trademark 77680931), both of which are arguably in more similar industries than an NFL team — and both of which were allowed to register their trademarks. Regardless, I would expect Dr. Pepper’s opposition to fizz out, as it were.

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Companies: denver broncos, dr. pepper

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Comments on “Concussion Protocol: Can You Tell The Difference Between Soda And One Half Of A Football Team?”

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31 Comments
David says:

Serious danger of confusion

If fans of the Broncos throw soda cans on the field, the attacker might no longer know which “Orange Crush” to steer clear off.

I think we owe it to sports not to let the Denver Broncos take advantage of such unsportsmanlike means of confusion.

There is also the danger that First Aid will not arrive in time when it is reported as “An Orange Crush got seriously dented, come as fast as you can.” “What was that about a dented Orange Crush can?”

Vidiot (profile) says:

Re: Trademark needed?

Add to the “informal nickname” idea the simple fact that this is wordplay… and is based on the beverage name. “Oh, I get it… the team color is orange, and they crush people, and that sounds just like the famous soda.” Since the team has already informally (and without risk of confusion) purloined the name, shouldn’t they just be happy and walk away?

jjmcubed (profile) says:

They might have a small point if....

The beverage maker might have a point. What if Dr.Pepper has been making promotional shirts/hats/whatever for the past how many years. Will the Broncos be able to block something like that? Will the Doctor be able to give away their shirts/hats without the Broncos suing them? Does Dr.Pepper give away their merch at sports events? I have no clue. Can someone with more knowledge educate me?

Anonymous Coward says:

Re: They might have a small point if....

Both Dr. Pepper and the Denver Broncos have legal teams. Both teams need to justify their existence and try to increase their salaries. Right now you are seeing the Dr. Pepper legal team looking for their annual bonus.

If the Denver Broncos win, you can count on many trademark lawsuits between the two corporations as that will allow both legal teams to increase their budgets so that they can all get bigger salaries, bonuses, and increase their corporate fiefdoms. Actual laws, or chances of winning the suits are secondary to the primary goal which is of course salaries and bonuses.

trollificus (profile) says:

Re: Re: They might have a small point if....

^ THIS. Many times over, this. Q: Why is this happening? A: Lawyers wanna get paid.

The explanation here of “simple, first-level self-interest” satisfies both Occam’s and Hanlon’s Razors and has considerable explanatory and predictive power.The layer of legalistic complexities found in such filings is just for show. The more counterintuitive the case, the more byzantine the filigree of legalese it will be coated with.

(This explanation suffices in many other circumstances with much more subtle cause/effect linkages.)

OldMugwump (profile) says:

Re: Re: They might have a small point if....

Exactly.

Even worse, Dr. Pepper’s lawyers are working directly against the best interest of their employer.

If the Broncos use the term “Orange Crush” that’s essentially FREE ADVERTISING for the soda.

If the lawyers cared more about helping their employer than expanding their own fiefdom, they’d encourage the Broncos to use the term.

Jeremy Lyman (profile) says:

Hang on a sec

I’m not sure this is so open and shut. On the one hand, yes they appear to be different markets. However the Broncos are essentially grabbing the exclusive rights to put the name on shirts, something that Dr Pepper currently does: Official Apparel

Additionally, the term was popularized (according to Wikipedia: Orange Crush Defense ) by Woody Paige in the late 70’s and early 80’s in reference to a specific format of defense the Broncos ran. The name was a reference to both the orange uniforms, AND the popular soda brand. Sure, maybe they should be allowed to use it, but why should the Bronco’s organization get exclusive rights to slap it on apparel?

Isn’t this exactly what the Trademark application and opposition process is for? Having a public discussion mediated by a third party to determine what is reasonable?

Ikepuska says:

Re: Hang on a sec

Also, I would add that sponsorships would complicate the issue immensely also. Should Dr. Pepper decide to sponsor a team and create Official Apparel for that team using Orange Crush or some other sponsorship that focuses on the orange part, like say Auburn or Clemson, then there would be confusion.
The other issue is that because of how broken trademark rulings have been in the past, allowing uncontested the Broncos to have the trademark would potentially allow them to acquire the mark for product types that Dr. Pepper also sells currently. Dr. Pepper isn’t trying to prevent the Bronco’s from using Orange Crush as they have been historically, they’re trying to prevent them from having power over the term through a mark. Given the screwy history and aggressiveness of the NFL and NFL teams with respect to trademark law it is hardly a forgone conclusion that Dr. Pepper would prevail in a case at a later date. It wouldn’t be the first time that the established company lost to a newer trademark for stupid reasons.

In short, even if Dr. Pepper believes that the Bronco’s are allowed to have a very narrow trademark in Orange Crush for professional football teams, they would want to participate in the court process as a means of having a voice in exactly how limited that mark would end up being.

DannyB (profile) says:

Dear Sports: The Bigger Picture

Trademark crazy professional sports needs to pause for a second, step back and see the bigger picture.

Stop suing over every little trademark issue that you can imagine or contort into a lawsuit.

Instead, consider. There is a better way forward.

How much easier would it be to simply patent the business method of suing over sports related trademark infringements? Then you could make money while everyone else in sports continues doing what they are already doing.

It is also good for the economy in that it helps keep patent troll lawyers employed as well as trademark troll lawyers.

Adam (profile) says:

Aggressiveness...

Hasn’t the NFL been rather aggressive in Trademark disputes themselves? Aren’t TV stations using “The Big Game” because of some stupid dispute over “The Super Bowl”?? and then the NFL went as far as to try and trademark “The Big Game” as well???

Maybe Dr. Pepper is stepping in out of fear that once the NFL owns a trademark they might pursue legal actions to stop others from using it. Dr. Pepper may just be issuing a pre-emptive strike.

That Anonymous Coward (profile) says:

Its not the trademark stupid...

its the cash they imagine. Dr. Pepper can fight them to close to a standstill, or some sort of deal could be worked out where the NFL pays Dr. Pepper a tidy sum for allowing them to use the mark. Perhaps even score some sweetheart deals to get Dr. Pepper products some NFL advertising.

Reasonable people could sit down and agree to not step on each others toes… but these sides both have huge banks of lawyers who need to earn their keep and fill their heads with visions of dollar signs they each can get.

Anonymous Coward says:

Jeremy Lyman is right. Orange Crush has existed as a product since 1911. They were pretty big when the Broncos “borrowed” the nickname. The average person who’s _not_ a football fan is not going to realize that a t-shirt which says Orange Crush with an orange horse head is not necessarily representing his favorite soft drink. The problem goes further: not only t-shirts but other items being marketed by both entities. Drink glasses, cups, and holders, ball caps, pins, clothing, backpacks, and more.

orbitalinsertion (profile) says:

Well, it seems a lot more like legal wrangling around a “moral right” – if you want to call it that in this case – of one party riding off of another’s fame with an established phrase. Maybe don’t try to trademark it and they don’t care. Seems to have been that way forever in this particular case. It doesn’t seem to be a direct part of law, so we do stupid things and sometimes end up with really stupid rulings and case law because of it.

Not sure what the obsession with constantly re-purposing and riffing off of popular or trademarked phrases and logos is about anyway, except people are rather uncreative and lazy and easily amused. Remix culture proponentism notwithstanding.

Anonymous Coward says:

Why not work out a deal to prominently sell Orange Crush soda in the park? If there is a matter of t-shirts and what not then put both brands on the T-shirt. Cross promotion is a powerful tool that both brands would benefit from. Orange Crush becomes the official drink of the Denver Broncos and the Denver Broncos become the official football team of Orange Crush.

It’d save a ton on lawyer fees too.

Anonymous Coward says:

in the rational days...

in the days when people and corporations (before the high paid lawyers got involved) had some rational reasoning abilities corporations were grateful for the free publicity for their brands… now corporate lawyers see that as an opportunity for extra revenues while forcing corporations to now shell out mega bucks for advertising. I think the current mba’s running companies have lost all touch with reality.

The Wanderer (profile) says:

This type of thing is cropping up increasingly often recently, as far as I can see, and I honestly don’t think it’s based on the motivations you’re arguing against here.

I think these type of trademark-related oppositions, whether to the granting of a new trademark or to the use of a term that’s trademarked in a different field, are based not on concern that people will think that the two ‘products’ are the same but on concern that people will think that the name similarity means that (the owner of) one ‘product’ has endorsed the other ‘product’.

Especially given “moron in a hurry” considerations, this does not seem like an entirely unreasonable concern in many cases.

This may not be what trademark law is currently for, but some (many?) people seem to think that it should cover this, and if you want to convince them otherwise you will need to present arguments which address the concern which they actually have.

For someone who is concerned about consumers being confused by the appearance of endorsement, an argument which objects to their use of trademark by ridiculing the idea of consumers being confused by the product similarity – which is not an idea which they hold – is nothing more than a straw man, so it doesn’t serve to convince them of anything.

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