By the time the St. Louis Cardinals reached the 2011 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. 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.
As I pointed out more than a year ago in my first post on this subject, the applicant--PBR Industries--is not affiliated with the Cardinals or Major League Baseball. Although the focus of that post was whether someone should be able to claim trademark rights in a name that originated in the public domain, I ended it: "But the drama should become particularly interesting if and when the 500-pound gorilla known as MLB Properties decides to enter stage left."
Guess who just entered stage left?
Just two days after Christmas 2012, PBR Industries awoke to discover a lump of coal in its stocking in the form of a Notice of Opposition filed by the St. Louis Cardinals, LLC.
In the opposition papers, the Cardinals walk us through the squirrel chronology: first appearance on October 4, 2011 in Game 3 of the NL Division Championship game against the Phillies; next appearance at home plate during Game 4 (captured in the Topps Skip Schumaker trading card shown to the left); first "product" appearance on October 12 in the form of RALLY SQUIRREL rally towels distributed to 40,000 fans by the Cardinals at the first home game of the NL Championship series against the Brewers; first merchandise sales at Busch Stadium on or shortly after October 12, including Rally Squirrel stuffed animals and "Got Squirrel" T-shirts.
The significance of the chronology? All of those events occurred before October 20, 2011--the date PBR filed its intent-to-use application and thus its constructive first use date. The answer to the Cardinals' opposition filing is due early next month. It will be interesting to see how PBR responds.
The equally interesting question--one better suited to the economists--is whether the RALLY SQUIRREL will have any monetary value by the time the Trademark Office proceeding concludes sometime after the 2013 baseball season. I attended a few Cardinals games last season and watched a whole bunch more on TV. While my memory is not what it once was, I have no recollection of any mention of the rally squirrel or of seeing any fan, in or out of the stadium, sporting any squirrel-themed Cardinals merchandise. Perhaps by the end of this coming season, the only profit to be made over the RALLY SQUIRREL trademark battle will be the fees charged by the lawyers in that battle.