Ridiculous: Trademark Board Lets Yankees Control 'Evil Empire' Despite It Being An Insult Used By Another Team

from the bad-news dept

Two years ago, we wrote about a ridiculous situation in which the NY Yankees (disclosure: I'm a lifelong Yankees fan) were opposing a trademark application by a small company who sought to trademark "Baseball's Evil Empire" for the sake of selling merchandise with that brand on it.
As we noted at the time, it wasn't that long ago that it was considered perfectly legal for anyone to make t-shirts and other merchandise bearing the names of your favorite sports teams. But then the trademark lawyers got involved and, with sports leagues seeing the potential for lots of money, they shut that down. This seems to be another case of that sort of thing, but with a twist. In this case, the NY Yankees, who were opposing the trademark, have never used the term "evil empire" to reference the Yankees. Instead, the team was called that a decade ago by an executive of the rival Red Sox. In fact, in its own opposition, the Yankees even made the point that the term had a "negative connotation" and they didn't like it -- so it seems extra bizarre to then take "ownership" of the term via trademark.

But, in this case, the Yankees still won. The Trademark Trial and Appeal Board ruled that even though the team has never used the name, and even though it's a pretty generic and overused term, there is a likelihood of confusion and that people now associate the term with the Yankees. While I could see rejecting the term as not deserving any trademark at all, the idea that this is likely to cause confusion seems like a stretch. The team has shown no inclination in embracing the term (and its own filing showed that it felt the phrase was negative). The TTAB and the Yankees seemed to put a lot of weight in the fact that the Yankees sometimes use Star Wars music to suggest they were directly embracing the term, but that seems extremely weak, at best.

There's also a good conversation at Mike Madison's blog post on the story, in which someone notes that it would be fine if the TTAB made it clear that no one should have the trademark, but in this case, the court seemed to act as if the Yankees have the trademark, despite having nothing to do with the phrase. It repeatedly refers to the phrase as if it were the Yankees' own mark.

Meanwhile, it appears that the company that originally filed for the trademark, Evil Empire Inc., isn't giving up either, claiming it will continue making and providing Evil Empire gear, saying that the team "has never shown any indication that it plans to sue for trademark infringement over the use of the name on apparel." In other words, it's betting that despite blocking its own trademark application, the Yankees won't now go on to sue over Evil Empire's continued usage. That seems like a pretty big risk.

That said, the whole situation highlights (yet again) the nuttiness that is the end result of an "ownership society." Evil empire is a simple phrase that references Star Wars. The idea that it alone should be controlled by the New York Yankees seems preposterous.

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  1. identicon
    cpt kangarooski, 27 Feb 2013 @ 4:08pm

    No, it's plausible

    Trademarks are basically about consumer protection. It doesn't matter who coins a mark or what it initially refers to. What matters, fundamentally, is that the expectations held by the public in reference to the mark are met.

    Considering that EVIL EMPIRE is commonly (though not exclusively) used to refer to the fucking Yankees, and especially given the designs shown here, it is possible that people who want to buy sports apparel of a level of quality associated with those bastards might get some of this, perhaps thinking that it is sort of self-deprecating humor.

    Parody and satire should not be off limits in the trademark sphere, but it is tricky, certainly, to reconcile them with ensuring that marked goods and services are of consistent quality levels, such that the presence of the mark can be relied upon by customers as a reliable indicator of that quality. (E.g all COCA-COLA CLASSIC tastes the same, but not all soda does)

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