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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.

Filed Under: football, orange crush, soda, trademark
Companies: denver broncos, dr. pepper


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  1. icon
    The Wanderer (profile), 17 Jun 2016 @ 5:20am

    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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