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USPTO Denies MLB’s Insane Attempt To Trademark ‘Play Ball’
from the play-trademark-ball dept
There is no shortage of examples of Major League Baseball attempting to wield overly broad trademarks its obtained to bully others, nor examples of MLB attempting to stretch its trademark rights much further than they go. MLB opposed a trademark for a Brooklyn burger joint on behalf of the Dodgers, a team that hadn’t played in Brooklyn for over five decades at that point. The league, at one point, tried to bully a local Little League for using the names of MLB teams, but not their logos, which is something that roughly every Little League team everywhere does. It attempted to trademark the names of three cities in which MLB teams play. And, my personal favorite and most appropriate for this post, the league opposed a finance company’s trademark application because it claimed two of its separate teams both owned the rights to the letter “W”.
The real lesson in all of this is that the League can’t be trusted with anything other than very narrow trademarks. Anything more broad than that causes them to act the fool. And perhaps this is a lesson the USPTO has actually learned, given that it recently denied MLB’s attempt to trademark the phrase “Play Ball”.
The United States Patent and Trademark Office denied MLB’s application to trademark “Play Ball” for clothing, the USPTO wrote in a final action filing on Friday.
“In this case, the applied-for mark is a commonplace term, message, or expression widely used by a variety of sources that merely conveys an ordinary, familiar, well-recognized concept or sentiment,” the USPTO wrote in its denial.
The USPTO also wrote phrases “that merely convey an informational message are not registerable.”
Those are things that MLB’s well-dressed lawyers absolutely know, of course. But they attempted to bank on a complacent trademark office to try to sneak one past the goalie anyway, to mix metaphors. And if the league had gotten the mark, you can be one hundred percent certain it would have gone on yet another bullying campaign targeting apparel makers, other sports leagues, and who knows who else.
In fact, the most surprising part of all of this is that it appears to have taken 4 years for the USPTO to reach this decision. Josh Gerben breaks it all down like this.
Gerben said the rejection and public domain nature of phrases could depend on the class. Other companies have trademarked “Play Ball,” including a food company for bubble gum, a minerals company for surfacing playgrounds and “The Play Ball” for the gala fundraiser for the Strong National Museum of Play in Rochester, New York.
“In this case they are saying that the phrase has become so ubiquitous and it has this underlying meaning,” Gerben said. “For a clothing brand, the government doesn’t think it’s unique enough to be registered.”
Somehow, some way, we have to get past this practice of looking at trademarks as some kind of retroactive profit center, where a business gobbles them up and then corners a market that was already in existence. That’s all that this sort of attempt to lock up language is. The term “play ball” can be associated with Major League Baseball, certainly. It can also be associated with other sporting activities, or business negotiations, or any other number of things. That’s because it has become a generic phrase, no longer an identifier of the source of a good or service.
Again, MLB’s lawyers knew all of this before applying for the mark. They just didn’t care.
Filed Under: baseball, play ball, play ball play ball play ball, trademark, uspto
Companies: mlb
Comments on “USPTO Denies MLB’s Insane Attempt To Trademark ‘Play Ball’”
The USPTO has refused to play ball with MLB.
And until we start kicking the stuffing out of the attorneys who do things like this, they’ll keep doing it.
Billable hours
From the lawyers point of view, running this application is just revenue… both a grant or a rejection provides them with billable hours.
I wonder why the MLB keeps wasting money here, it smells so much like incompetent management.
No down side
As with far too many US legal issues there appears insufficient downside to spurious actions. If after three obviously invalid applications the agency could ban any new applications for five years maybe people would only apply when a reasonable man would think it was right to.
Good thing you used ‘sneak one past the goalie’ because they’d have sued if baseball had goalies. This article really
hit it out of the park.Redacted pending litigation from MLB.Way too late!
I just looked, and the first documented use of ‘play ball’ for baseball goes back to 1885 with Mike Kelly.
The attorneys filing for this trademark should be sanctioned for bad faith submissions. The phrase is clearly now public domain.
Clearly public domain! Goes back to 1885
Mike Kelley was documented as using the phrase for baseball in 1885. It’s been used widely since then for baseball and other areas. This is clearly now public domain, and the attorneys involved should be sanctioned for bad faith filings. Burn their legal licenses!
Re:
I think you may be confusing your intellectual property categories.
For most systems, a trade mark must be distinctive in the minds of consumers—meaning people understand it as an indicator of origin, not just a description.
If the term is generic (e.g., the common name for the product), trade mark rights usually fail no matter how long people have used it.
If the term is descriptive (or “merely” descriptive), rights may still be possible, but the owner typically has to prove acquired distinctiveness (a.k.a. secondary meaning): the public has come to see the term as pointing to a particular source.
For terms with over a century of use, it’s common that the public has either:
learned to treat them as a brand/origin indicator (good for protection), or
treated them as the generic name for the category (bad for protection).
So for this case, “play ball” would have to be taken in context. It’s obviously not a brand/origin indicator with regards to baseball in general — so if they’re suing for ANY use of the phrase within the realms of sporting events or even baseball, hard ball or softball, then it’s an automatic fail.
If, however, MLB owned the rights to a baseball card franchise, and named it “Play Ball!” then they WOULD have the right to trade mark it, assuming the phrase wasn’t already being used in the context of trading cards.
Printing it on a T-Shirt as an MLB brand? Since anyone can print anything on a T-Shirt and the phrase is associated with baseball in general, it would be “reasonable” to attempt this to maintain trade control of the phrase, but they’re unlikely to succeed, as people don’t associate the phrase “play ball” with MLB, whether on a T-Shirt or elsewhere — there’s no actual “brand” there to protect.
Next
I guess they should try, Playing With Balls.