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Protecting the 12th Man Trademark

By Brandon Hamburg
Matthew Emmons-USA TODAY Sports

Texas A&M threatens to sue double amputee, cancer survivor. Sounds a bit dramatic, no? When I saw those words come across my twitter feed, I was intrigued. David Ubben has been known to rattle the cage of Aggies before, so curiosity got the best of me. What did I find? Texas A&M defending what is legally theirs.

The article boils down to this: Texas A&M filed two complaints against four Buffalo Bills fans for using the 12th Man trademark in their website, 12thManThunder.com, and took further action when negotiations stalled.

Ubben notes the following:

The four fans changed the name of the website to BillsFanThunder.com, but Texas A&M demanded more.

Attorneys wanted all 250 posters promoting the site taken down from restaurants and bars around Buffalo.

"We have been negotiating about a turnover date for several weeks. When it became apparent they would not make that change, we gave them a deadline of last Friday to respond. The domain name still needs to be transferred from their ownership. It is still redirecting to their website. Their use of social media is still in question," Texas A&M spokesman Shane Hinckley told the paper.

Back in January, GBH spoke to Texas A&M's Shane Hinckley, (Assistant Vice President, Business Development; Interim VP Marketing & Communications; Director Collegiate Licensing Texas A&M System) about protecting the 12th Man trademark, and here's what he had to say:

One thing that is questioned a lot is if we don't protect our trademark we lose it. Is that true, and if so could you explain that to our readers?

Trademark law is basically setup that if you own a trademark you have to be actively using it. If you're not using it then you lose the right to that trademark. The same goes that you have to be actively protecting it. If you become aware of incidents that may infringe on your trademark you have a duty to go out and investigate those and make a determination on whether you need to give somebody a call, send a cease and desist letter, or make a determination that it probably didn't infringe within the confines of what the law is and so no action is required.


Do you have any idea how many of those cease and desist letters A&M has sent out in the last two years?

I don't have a number in front of me. In the last two years I think it is just south of 200 combined. We send out a lot. There's been a lot of issues that we had to deal with and it's just a part of the job. As our brand gets bigger and people like what they see, imitation is a form of flattery and people try to imitate. Some uses are okay and not an infringing use and other uses aren't. The difficult thing for a trademark owner is you have to look at each one separately. For instance a use by the news media in a news broadcast don't necessarily constitute a trademark infringement and they're not actionable. A lot of people who have a vested ownership or pride in their school hear ESPN talking about the 12th Man during a Seattle game, those are things that may not necessarily be an infringement. However, as a trademark owner they do pose a problem because they could tend to dilute the value of what the trademark is for Texas A&M. So we have to deal with those kinds of things. What one news agency does on Twitter as a promotion versus what they do for an in-game broadcast, those two things can be seen as vastly different in the eyes of the law. It's something that is very difficult to police and something that we are very actively involved in.

We talk with Seattle on a regular basis. Seattle has been an outstanding partner. They've been very clean in their use within the agreement. There's never been anything intentional and anything that's been minor that has come up has been addressed immediately. From a relationship standpoint we think that relationship is great. In terms of what some third parties do that aren't affiliated with the Seahawks, that's a different issue. Those are the ones that we have to take more time with and go after.

You can read the full interview HERE.

Pretty cut and dry, right? At the end of the day, legally, Texas A&M must fight to protect and keep the 12th Man trademark.

Ubben, Kristi Dosh (author of Saturday Millionaires and formerly w/ ESPN & Forbes), and our own @stringsays weighed in on twitter as well:

UPDATE 7/3 1:30 p.m.

<blockquote class="twitter-tweet" lang="en"><p><a href="https://twitter.com/KeithOlbermann">@KeithOlbermann</a> <a href="https://twitter.com/espn">@ESPN</a> Contrary to what has been reported there is no lawsuit and we are working towards an amicable solution <a href="https://twitter.com/hashtag/TAMU?src=hash">#TAMU</a></p>&mdash; Shane Hinckley (@Shane_Hinckley) <a href="https://twitter.com/Shane_Hinckley/statuses/484754270541987840">July 3, 2014</a></blockquote>

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