The Rally Squirrel and the 500-lb. Gorilla
By the time the St. Louis Cardinals reached the World Series, the little gray squirrel that had dashed across home plate during Skip Schumaker's at-bat early in the playoffs had been transformed into The Rally Squirrel, complete with Rally Squirrel towels, Rally Squirrel t-shirts and Rally Squirrel stuffed animals..jpg)
And by the time Alan Craig caught the final out in the 9th inning of Game 7, the first application to register RALLY SQUIRREL was on file with the U.S. Trademark Office, to be followed ten days later with an application to register RALLY SQUIRRELS. Both were filed by businesses unaffiliated with Major League Baseball. And both raise the same question: should a company be able to claim trademark rights in a name that originated in the public domain?
The border between property rights and the public domain has been uniquely permeable for trademarks. Some coined words that were once valuable trademarks have eroded into generic terms, including aspirin, heroin, thermos, escalator, dry ice and zipper. Other trademarks struggle to avoid genericide, including Coke, Kleenex and Xerox. And yet others, to the dismay of their owners, have spawned evil twins that have entered the public domain with distinctly unflattering meanings, e.g., "Mickey Mouse operations," "Band-Aid solutions," and "Barbie girls."
But Rally Squirrel is an example of the reverse, namely, a term that might just cross the border from public domain to private property. It has happened before in sports--at least twice.
DREAM TEAM: Back in 1991, the US Olympics Committee announced that the USA basketball team for the 1992 would be comprised of professional basketball players. This was big news, since only amateurs had played on previous teams. The February 18, 1991 Sport Illustrated cover featured a photograph of Magic Johnson, Michael Jordan, Charles Barkley, Patrick Ewing and Karl Malone wearing their Olympic uniforms under the heading DREAM TEAM. The name went viral, and soon everyone was referring to them as "the Dream Team." But by June of that year, NBA Properties had filed an application to register the name as its trademark. That application triggered a lengthy process that took a full decade before the US Trademark Office granted the application. Along the way, there was a trademark infringement lawsuit in St. Louis in which I represented NBA Properties.
THREE-PEAT. This clever phrase became popular in Los Angeles in 1988 when Lakers fans began hoping that their team, which had already won two consecutive NBA titles, would win a third in a row. Lakers coach Pat Riley, through his company, filed an application to register THREE-PEAT. Though he secured the registration, his Lakers failed to secure that third title. Ironically, the Chicago Bulls went on to win three in a row, and Pat Riley's company was able to collect royalties from all of the apparel and memorabilia manufacturers who used that phrase on their products.
As for RALLY SQUIRREL, we'll have to wait and see what happens with the applications. But the drama should become particularly interesting if and when the 500-pound gorilla known as MLB Properties decides to enter stage left.
Geoff Gerber keeps waiting for his superpowers to materialize. In the meantime, he uses his lawyer-powers to litigate intellectual property
Michael A. Kahn concentrates his practice in copyright, trademark, First Amendment and media law (libel, privacy rights). He is
Abby Durlester is a reality television enthusiast who can prophesize which contestant will win the season of whatever varietal
