Boise State Somehow Got A Trademark On Non-Green Athletic Fields

from the trademark-blues dept

Thu, Sep 15th 2016 4:29pm — Timothy Geigner

It's football season again, which means some significant portion of America is routinely spending some significant chunk of its weekends watching some significant portion of male college students give some significant portion of each other irreparable brain damage. It's an American thing, I suppose. Also, an American thing is the acquisition of overly broad trademarks that border on the laughable. Intersecting these two bastions of American pride is Boise State, with a recent NY Times article discussing how the school managed to trademark athletic fields that include grass that is blue, with attorneys working with the school suggesting that any non-green colored field might result in trademark action.

For those not inclined towards watching college football, a quick piece of background. Several decades ago, the folks that run Boise State University didn't want to pay to resod their football field. So, instead, the school laid down blue turf in its stadium. Now real-life football players play on this:

Oy, it looks like the field has been cleansed with the blood of a hundred thousand smurfs. And, admittedly, the pure ugly of the field of play has become something of an icon for Boise State, gaining it national attention it might otherwise not receive, which translates into a recruiting tool for the school to lure players to its team. The school became so enamored with this attention that it sought to trademark simply having a field of athletic play that is blue, and was successful. To do this, the school hired an attorney that previously specialized in music licensing, because of course. That attorney's name is Rachael Bickerton, who both acquired the trademarks in question and now goes about enforcing them.

Her first priority was to register Boise State's trademarks, including the one for the blue turf. To do that, the staff had to prove to the USPTO that when consumers thought "blue field", they thought of Boise State. To make the University's case, Bickerton submitted articles, travel guides and marketing materials -- 141 pieces of evidence in all. The trademark office rejected the application in 2008, citing a "lack of distinctiveness", but approved the second attempt one year later after Bickerton argued that the previous year, Boise State had spent $2.2 million on advertising that singled out the field.

Now, we could sit around and argue whether or not having a blue football field was a thing fit to be trademarked. Personally, considering the specific color the school used, I could buy an argument that fans that see the field do indeed think of Boise State. I certainly do. But the school expanded the trademark in 2010 to fields not just blue, but fields that are "non-green." And that's crazy. Bradlee Frazer, an IP attorney working with the school, has stated that any non-green athletic field carries with it the risk of confusion pertaining to Boise State. He can say that all he wants, but such a stance likely wouldn't survive a challenge from another school.

But those challenges have never come, mostly because Boise State is quite liberal with freely licensing the ability to have non-green fields to other schools.

Boise State approves most requests "as long as it doesn't prevent Boise State from getting the best students and the best student-athletes that we're looking for," Bickerton said. Those schools that are approved receive the licenses at no cost. The only stipulation is that they cannot in any way liken themselves to Boise State.

So, to be fair, the school isn't behaving particularly badly as far as these trademark stories tend to go. Which doesn't change the fact that such an overly broad trademark on non-green athletic fields is pure crazy-pants. So if you're watching college football this weekend and see a colored football field, just know that even in your weekend escape, intellectual property law haunts you.

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Filed Under: blue field, football, football field, non-green field, trademark
Companies: boise state

25 Comments

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Anonymous Coward, 15 Sep 2016 @ 4:40pm

http://bit.ly/2cAMIrG
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Anonymous Coward, 15 Sep 2016 @ 4:41pm

Re:
They have work to do.
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Anonymous Coward, 15 Sep 2016 @ 5:04pm

Next drout high schools across the nation will be served with cease and desist letters from Boise State.

Sure hope no forrest fires burn an athletic field.

Hope those teams up north have money to cover their field, snow will put them in violation.

Better invest in proper field drainage too, brown muddy fields will be in violation.
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Daydream, 15 Sep 2016 @ 5:42pm

Quick question:
Is it possible to trademark a specific shade of color for use in a specific category of products/services?
Cadbury is supposed to have a very specific shade of purple, or something?

Why not just trademark that very specific shade of blue?

...I get it! This is the equivalent of collecting a patent portfolio!
Boise State is trademarking 'non-green' fields and licensing them out to everybody on purpose, to prevent trademark trolling from anyone who wants to trademark a specific color!
...I think.
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Anonymous Coward, 15 Sep 2016 @ 5:44pm

that's a crazy looking field. do they have a bluegrass marching band?
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Anonymous Coward, 15 Sep 2016 @ 5:51pm

'nother thing. if they put together a raucous all-male bluegrass marching band, how 'bout calling it the noisy boise boys?
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Ryunosuke (profile), 15 Sep 2016 @ 6:29pm

pretty sure you cant trademark bluegrass
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Anonymous Coward, 15 Sep 2016 @ 8:33pm

Possible to TM a color in association with product or service...but extremely difficult to do so. See, e.g., Owens Corning pink insulation. Given difficulty, it would have been helpful if the author had provided links to the actual TM registrations at the USPTO.
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ted, 15 Sep 2016 @ 9:03pm

If you watch people play with balls, Well just wow, SAD
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David, 15 Sep 2016 @ 10:32pm

I can't wait
until someone patents blue balls and then starts suing every single male for trademark violation.

Think about it. Or rather not.
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Anonymous Coward, 16 Sep 2016 @ 12:06am

Don't care about the curriculum
"as long as it doesn't prevent Boise State from getting the best students and the best student-athletes that we're looking for,"

Translation: We don't care if people choose Boise State for their quest for knowledge. We don't care about that ourselves either. We have H1B visas for when we need educated people.
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art guerrilla (profile), 16 Sep 2016 @ 4:15am

used to respect boise state...
...they are a small school who has had a consistently good football team, even playing much bigger schools and winning more often than not...
HOWEVER, i have ALWAYS thought:
A. their field is FUGLY, per-i-odd...
B. they have a tendency to wear all blue uniforms while playing there, and -to my mind- it provides a small advantage in that the all-blue players get 'lost' against the all-blue background... i think of it as crappy gamesmanship at the least, and cheating at the worst...
(i think the same thing of tennis players: saw some players at US Open wearing optic green outfits; excuse me? isn't the ball optic green ? and you allow them to wear optic-green outfits where the ball might get 'lost' such that the opponent can't follow the flight easily ? ? ? no, that is wrong, too... i doubt they would allow an outfit which had a realistic images of tennis balls all over, shouldn't allow outfits the same colors as the balls, either... realizing that tennis outfits were traditionally white, and the balls were white back then, too...)
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Anonymous Coward, 16 Sep 2016 @ 5:01am

I remember a European company some time ago tried to get special treatment for the color orange, you know .. because that is their company name. I think they were told no.

And yet those crazy Europeans keep getting fingers wagged in their faces because they let this kind of shit happen - go figure.
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Ninja (profile), 16 Sep 2016 @ 6:04am

Re:
I would LOVE to see the lawsuit over THIS field shown in the results.
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Anonymous Coward, 16 Sep 2016 @ 6:33am

Re: Re:
What are you talking about .. looks like a level playing field to me, said the team on the left.
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KWW (profile), 16 Sep 2016 @ 6:54am

Yes, you can receive a trademark registration for a color - even a smell or sound - but I'd like to see some proof of the trademark registration for "non-green" fields. That sounds like a phantom mark, which is not allowed. A registration has to be for a single mark. By claiming that your mark is "non-green," you are claiming multiple other colors. Maybe the author can provide a link to that application or registration.

See: https://tmep.uspto.gov/RDMS/TMEP/current#/current/TMEP-1200d1e12571.html

Here's the registration for blue:
http://tsdr.uspto.gov/#caseNumber=77574724&caseType=SERIAL_NO&searchType=statusSearch
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EJR, 16 Sep 2016 @ 7:28am

This article is a bit confusing. Are you suggesting that Boise State received a U.S. federal trademark registration for any "non-green" color for stadium turf? I cannot find such a registration (although I do find one specifically for blue for stadium turf).
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Anonymous Coward, 16 Sep 2016 @ 9:02am

Re:
I would like to trademark the numbers zero and one please.
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David, 16 Sep 2016 @ 9:09am

If they license for free...
Wouldn't this kind of be like having a defensive patent? Although in this case, a defensive trademark? This also prevents anyone from trademarking other colors (matching other schools colors) and extorting them for fees.

This may not be a bad thing, but absurd that we need such a thing.
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Anonymous Coward, 16 Sep 2016 @ 9:52am

Re:
Good thing no prior art exists to oppose this trademark...

Oh, wait this is the "moron in a hurry" test for IP, right, good thing no morons (or trademark office employees) have access to google.
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moron in a hurry, 16 Sep 2016 @ 11:01am

I wanted to attend a Boise State football game and I ended up in this stadium non-Boise State stadium because it also has a blue field! I have been violated! Woa is me, how will I ever recover from this?
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hopponit (profile), 16 Sep 2016 @ 5:23pm

Non green
"Oy, it looks like the field has been cleansed with the blood of a hundred thousand smurfs." That part actually made me cheer them on and want more!
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Coyne Tibbets (profile), 16 Sep 2016 @ 6:42pm

Solved and green
We can actually solve this one. New league rule: playing fields must be green.
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Anonnimous, 20 Sep 2016 @ 2:40am

No puns for this?
Rachael Bickerton. The music licensing lawyer's name is Rachael Bickerton. Is she angry and bickering all the time when she works or is her name ironic?
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Sean David, 2 May 2017 @ 4:17pm

Re: used to respect boise state...
The blue uniforms make the overhead view a little more difficult to follow, but doesn't affect the players on the ground. The background to other players isn't the turf but is the advertising and the people in the lowest stands. It does slightly affect any coaching staff that are in a box watching from above, but no more so than happens when a team wears green uniforms and plays on a green field.
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