Texas A&M Concerned That Indianapolis Colts' Use Of 12th Man Might Confuse Football Fans

from the hut-hut-lawsuit! dept

Mon, Nov 16th 2015 10:57pm — Timothy Geigner

Texas A&M has a long history of defending its registered trademark of "12th Fan" to ridiculous lengths. Between threats to breweries, threats to double-amputee cancer-survivors, and generally serving as the template for the Seattle Seahawks' own idiotic over-enforcement of a rival 12th fan trademark, the university has managed to foster a climate of permission-culture over a phrase that has become commonly used in American football circles. See, the 12th man refers, in most cases, to fans of football teams that show up and make so much noise as to influence the opposing team on the field. Lots of teams have used the phrase over the years, including the Indianapolis Colts. Well, the Texas A&M lawyers have finally had enough and have brought suit against the Colts, hilariously claiming that football fans might see the Colts' use of the phrase and think there's a connection between the school and the professional football team.

Texas A&M president Michael K. Young said in a statement from the school that the Colts have used the trademark "without our permission after repeated attempts to engage on the matter."

"We bear no ill will toward the Indianapolis Colts," Texas A&M University Chancellor John Sharp said in the statement. "We simply want them to respect our trademark rights. Our actions are consistent with our previous trademark enforcement efforts in this regard."

Well, that's certainly true, but the point is that those past actions were equally ham-fisted and hilariously disingenuous when they claimed that football fans would somehow draw a direct association between a Texas university and a professional football team or beer-maker over the use of the phrase. This is no different, in that it isn't at all about customer confusion, but rather about licensing deals that are quite lucrative for the school. The previous spat with the Seattle Seahawks, for instance, resulted in the Seahawks licensing the use of the phrase. That particular deal wasn't as lucrative, because the Seahawks can afford skilled lawyers, too. In fact, the $5,000 whole dollars per year the Seahawks pay Texas A&M every year for use of the phrase is so small as to be laughable. But if you can string a bunch of those licensing agreements together, while bullying smaller entities into other licensing arrangements? Well, then you have a decent amount of money to talk about.

Still, it's high time that somebody out there pushed back on the laughable claims Texas A&M makes in its trademark filings. Keep in mind that the use of the "12th Man" phrase by the Colts amounts to it appearing in one place in its stadium to honor fans and in solicitations for tickets. From this, Texas A&M claims:

Defendant's unauthorized use of the mark 12TH MAN in connection with its professional football entertainment services and its various products is likely to cause confusion, or to cause mistake, or to deceive customers and potential customers as to an affiliation, approval, license, endorsement, sponsorship, or other connection with Texas A&M, when none exists.

That's obviously not true. The phrase, at this point, has become so commonplace for use among football fans that nobody is even thinking about origins when they hear it. Certainly nobody going to a Colts game is thinking about the A&M Aggies. By my reading, the filing doesn't even attempt to show any instances of actual confusion, probably because none exists.

Hopefully the Colts will do what the Seahawks didn't and mount an aggressive defense.

Texas a Amp M Lawsuit v Colts (PDF)Texas a Amp M Lawsuit v Colts (Text)

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Filed Under: 12th man, football, trademark
Companies: indianapolis colts, texas a&m

24 Comments

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Reader Comments

The First Word

“

One major problem with the Texas A&M trademark for the phrase "12th Man" is that they filed a false and misleading trademark application to obtain it. In defending the trademark, they first have to defend their fraudulent claims associated with their use of the phrase.

The university claims they adopted the phrase in 1922 after a football game. The first use of the phrase actually occurred at least more than two decades earlier in 1900 by a Univ of Minnesota cheerleader) and had no connection with TAMU.

The school's first use of the !2th Man phrase as they claim it to exist occurred in 1939, not 1922, and was part of a fictionalized radio program written by the head of the school's alumni association. We know this because E. King Gill, the individual the school recognizes as the team's "12th Man" explained this fact in numerous interviews.

Here a link to an explanation of the history of the TAMU claims.

http://www.hornsports.com/articles/featured1395317068/texas-am-and-the-12th-man-the-story-of- th-r3866

Here is a link to a snippet from a Apr 15, 1964 Dallas Morning News interview where E. King Gill explains he was not aware of any !2th Man tradition at the school prior to the 1939 radio play.

http://imgur.com/4876CD4

It appears the school administrators have concocted a large scale fraud to obtain a trademark on the phrase "12th Man." As a governmental entity, the school has an unquestioned obligation to withdraw the fraudulent federal trademark filing and to correct the factual errors.

—Randolph Duke

”

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Karl (profile), 17 Nov 2015 @ 12:02am

Sportsing
Being an idiot in a hurry, I am very confused.

Please, can anyone esplain this in the context of Sportsing?
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- Karl (profile), 17 Nov 2015 @ 12:02am
  
  Re: Sportsing
  OK. Sportsing: http://imgur.com/gallery/gUgkpTx
  [ link to this | view in chronology ]
- JustShutUpAndObey, 17 Nov 2015 @ 8:08am
  
  Re: Sportsing
  Simple: Texas A&M president Michael K. Young thinks the students of Texam A&M and their fans are morons too rushed to think things out. :)
  [ link to this | view in chronology ]
Anonymous Coward, 17 Nov 2015 @ 1:55am

Bah, stupid yanks and stupid yank uni's
The Twelfth Man (also known as The 12th Man) is the name for a series of comedy productions by Australian satirist Billy Birmingham. Birmingham, a skilled impersonator, is generally known for parodying Australian sports commentators' voices. As befits the name (a reference to the non-playing reserve in an eleven-player cricket side), Birmingham particularly focuses on cricket commentators such as Richie Benaud, Bill Lawry and Tony Greig. This is also because many of Australia's cricket commentators have distinctive and easily identifiable voices and accents.
https://en.wikipedia.org/wiki/The_Twelfth_Man
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- Texas A&M Legal Dept, 17 Nov 2015 @ 3:45am
  
  Re: Bah, stupid yanks and stupid yank uni's
  Mr Coward,
  
  Thank you for providing this most excellent lead!
  While some find comedy funny, it is no laughing matter that some 'comedian' is using our trademark!
  
  We will be filing a lawsuit against the WikiMedia Foundation and Billy Birmingham to seek the largest re-occurring licensing possible.
  
  We also ask that you remove your post form Techdirt since it is likely to confuse others on the validity of our trademark. If not removed within the next hour we will add you to the latest round of lawsuits.
  
  Sincerely,
  
  John D. Not esquire
  Texas Assholes & Morons University
  [ link to this | view in chronology ]
Yes, I know I'm commenting anonymously, 17 Nov 2015 @ 3:57am

I am only familiar with that term when it is used for football fans (that is soccer to you Americans).
I did not know it was used in American Football as well.
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- Anonymous Coward, 17 Nov 2015 @ 6:00am
  
  Re:
  We Americans also call it Women's football.
  [ link to this | view in chronology ]
Glenn, 17 Nov 2015 @ 3:59am

I saw one college football fan wearing a "The 1/2th Man" t-shirt recently... guess he's a halfwit? (can't say he went to A&M, though)
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- Anonymous Coward, 17 Nov 2015 @ 4:30am
  
  Re:
  halfthwit
  [ link to this | view in chronology ]
Kaden (profile), 17 Nov 2015 @ 4:46am

Why are they arguing about the CFL?

https://en.wikipedia.org/wiki/Canadian_football
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Anonymous Coward, 17 Nov 2015 @ 5:58am

The Colts Suck
Hated the Colts since '84, but that isn't the point.

They should be embarrassed to use the term because the Seahawks use it. In the NFL, the 12th man is sort of their thing.

I hate Jim Irsay more than Dan Snyder.

But seriously, Indianapolis, come up with your own thing. Copy another minor league tradition if you want, but keep it unique in your league.

Next thing you know, the Patriots will sue the Panthers because they have a perfect record, and that is a Boston thing, only Boston is allowed to win all of their games.

I'm also happy that the Bengals lost last night, but they'll still likely win their division.
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- ElZarcho, 17 Nov 2015 @ 3:23pm
  
  Re: The Colts Suck
  Well, if Maryland idiots hadn't tried to use eminent domain and LITERALLY condemn the franchise, they might still have the Colts in Baltimore. https://goo.gl/p7QJdO
  
  And I hate whatever team you like, so shut up.
  [ link to this | view in chronology ]
Anonymous Coward, 17 Nov 2015 @ 6:08am

actually, i'm a bit concerned that a&m might be confused for a little piece of candy. there might be more than name similarity there.

that's the school that plans to have 80,000 students soon and print up their diplomas in rolls of thin tissue that quickly loses integrity when wet.
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Anonymous Coward, 17 Nov 2015 @ 6:36am

Well. It seems that many people here are ignorant of the law. Teach yourself instead of whining like a baby.

1. If you have a registered trademark, you defend it. That's the whole point of a trademark; you don't want other people to use it.

2. Registered trademark is national trademark unless it is registered in every country.

3. If you don't like "12th man", then it is your problem. "Apple", "Red Hat", "Fox" are all registered trademarks. "Apple" could sue anyone who uses 'Apple' in the industry, specially in the software or computer hardware industry.

4. In this case, because the Colts is a football team, Texas A&M had good reason to sue. If the Colts were a pen making company, A&M's action could have been different.
[ link to this | view in chronology ]
- Anonymous Coward, 17 Nov 2015 @ 6:56am
  
  Re:
  Who had trademark upon the word "Apple" first?
  (seriously, you can trademark a piece of fruit)
  
  I'm so confused ... all I wanted was some Beatles music and I ended up with this shitty computer! I'm pissed!
  [ link to this | view in chronology ]
  - Zero, 17 Nov 2015 @ 7:18am
    
    Re: Re:
    You bought an apple for listening to music? You should've hooked up with a penguin with minty freshness and opt out for less controlled music application for your beatles. Also, feel free to break any windows along the way as they're there to spy on you.
    
    Yay obvious wordplay!
    [ link to this | view in chronology ]
  - PRMan, 17 Nov 2015 @ 10:07am
    
    Re: Re:
    In the "food" category, no, you can't trademark Apple, because it's generic.
    
    In the computer category, it's unique.
    [ link to this | view in chronology ]
Randolph Duke (profile), 17 Nov 2015 @ 6:54am

One major problem with the Texas A&M trademark for the phrase "12th Man" is that they filed a false and misleading trademark application to obtain it. In defending the trademark, they first have to defend their fraudulent claims associated with their use of the phrase.

The university claims they adopted the phrase in 1922 after a football game. The first use of the phrase actually occurred at least more than two decades earlier in 1900 by a Univ of Minnesota cheerleader) and had no connection with TAMU.

The school's first use of the !2th Man phrase as they claim it to exist occurred in 1939, not 1922, and was part of a fictionalized radio program written by the head of the school's alumni association. We know this because E. King Gill, the individual the school recognizes as the team's "12th Man" explained this fact in numerous interviews.

Here a link to an explanation of the history of the TAMU claims.

http://www.hornsports.com/articles/featured1395317068/texas-am-and-the-12th-man-the-story-of- th-r3866

Here is a link to a snippet from a Apr 15, 1964 Dallas Morning News interview where E. King Gill explains he was not aware of any !2th Man tradition at the school prior to the 1939 radio play.

http://imgur.com/4876CD4

It appears the school administrators have concocted a large scale fraud to obtain a trademark on the phrase "12th Man." As a governmental entity, the school has an unquestioned obligation to withdraw the fraudulent federal trademark filing and to correct the factual errors.
[ link to this | view in chronology ]
- TechDescartes (profile), 17 Nov 2015 @ 8:15am
  
  Re: Fraud
  As long as the first-use date precedes the date of the application for a trademark registration, there is no fraud under the law:
  The claim of a date of first use is not a material allegation as long as the first use in fact preceded the application date. E.g., CarX Service Systems, Inc. v. Exxon Corp., 215 U.S.P.Q. 345, 351 (1982); McCarthy on Trademarks and Unfair Competition (2d ed.1984), 2, § 31:21 at 610.
  
  Pony Exp. Courier Corp. of Am. v. Pony Exp. Delivery Serv., 872 F.2d 317, 319 (9th Cir. 1989).
  [ link to this | view in chronology ]
Anonymous Coward, 17 Nov 2015 @ 10:24am

The Colts should fight this and announce that they won't draft or sign any players from Texas A&M beginning in 2018. See if that might put a dent in A&M's ability to recruit.
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Jeremy2020 (profile), 17 Nov 2015 @ 11:19am

to be fair, I think many A&M alums are confused by the number 12
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Paul Alan Levy (profile), 17 Nov 2015 @ 11:40am

Not just pointy football
It isn't just fans of the sport that US fans call football -- futbol fans the world over think of themselves as the 12th man. Take a look at these products, for example:
http://www.barra-brava.com/index.php/slider/item/40-join-dc-united-legendary-12th-man

Looking forward to a hearty welcome to Texas A&M when it sues the Barra Brava here in DC

Then there is this example in the Aggies' own backyard: http://www.sbnation.com/soccer/2013/8/12/4615504/mls-12th-man
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charliebrown (profile), 17 Nov 2015 @ 2:51pm

The 12th Man
The 12th Man is an Australian comedian who does fake television commentary for cricket games, doing all the voices for multiple commentators. A series of albums and a few singles saw him in the Australian charts several times from 1984 to 2006.
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Steve, 19 Feb 2016 @ 11:27am

Texas A&M = Douchbags
Look, I've been watching football since 1976, and commentators and fans have always used the term 12th man to describe the influence of the fans of the home team. I never even knew that Texas A&M had any special claims to this. It's obviously a douchbag grab at money. Look, very few one associates the 12th man with the Aggies, but they should be proud to say the tradition started there. There are many such traditions that started with one team or another, but this is the only case where the team is such as asshole as to try to copyright for profit... even against dying cancer patients. Have they no shame? The only thing their lawsuits have done for me is to officially make them on my most disliked team in college football. I will be pulling against them in all cases until they stop this behavior. Shame on you Texas A&M... a pox upon you!
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