"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Tuesday, January 31, 2006

Dirty Dozen 

Here's a story that incorporates three subjects which have long captured my imagination - Seahawks football, trademark law, and the infinite arrogance of Texans:
The Seattle Seahawks are facing the Pittsburgh Steelers in the Super Bowl, but they have an off-the-field battle brewing with Texas A&M.

School officials are upset with the Seahawks' use of the "12th Man" theme to recognize their fan support. A&M has legal claims to the "12th Man" moniker, a school tradition that dates to the 1920s.

The Seahawks have celebrated their fans as a "12th Man" since the 1980s, when they used to turn the now-demolished Kingdome into one of the NFL's loudest venues.

The team retired the No. 12 in 1984. Now, a No. 12 flag waves atop the city's signature Space Needle and the team has raised a "12th Man" banner at their new stadium, Qwest Field.

A&M's "12th Man" tradition started in 1922, when a student, E. King Gill, was called from the stands to suit up for the injury-depleted Aggies as they faced top-ranked Centre College. Gill never got in the game, but the Aggies won 22-14.

The tradition has evolved into a campus-wide commitment to support the football team. Students stand for entire games at Kyle Field and at times, they join arms and sway in unison, causing the stadium to literally shake.

A&M has twice registered trademarks for "The 12th Man" label -- in 1990 and 1996 -- that include entertainment services, "namely organizing and conducting intercollegiate sporting events," and products, such as caps, T-shirts, novelty buttons and jewelry.

Athletics director Bill Byrne said this week he's received e-mails from A&M supporters complaining about the Seahawks' "brazen use of the 12th Man theme at their home playoff games."

Byrne said A&M has contacted the Seahawks about the issue. He said he wrote the Chicago Bears and Buffalo Bills in the past about halting their 12th man themes once the university made them aware of the trademark registrations.

Byrne said Seattle, though, "has been slow-rolling us."

The Aggies are likely to lose this one, should they pursue it. While the equitable doctrine of laches is traditionally difficult to maintain, the Seahawks' celebration of the "12th man" goes back over two decades, and in fact predates A&M's trademark registrations. Furthermore, as the Seahawks' vice president of corporate partnerships/legal affairs, Lance Lopes, notes, most of the "12th man" paraphernalia in Seattle is actually generated by the fans themselves, not the team.

But the bigger problem here is the general distortion of intellectual property law in modern culture. In America, at least, intellectual property was intended to serve the public, not the plaintiff. While the European tradition is somewhat different - relying as it does on notions of moral rights - intellectual property in the United States represented a limited exception to the general disfavor toward monopolies. Copyright and patent were included among the subjects Congress was empowered to address because it was deemed necessary in order to "promote the progess of science and the useful arts." Trademark law is a little different - Congress legislates in this area pursuant to the Commerce Clause, not the Copyright Clause - but even there, the idea was to protect the public from deceptively-branded goods and services. That such legislation results in a monopoly in favor of the rights holder was considered an unfortunate but unavoidable consequence of the law, acceptable as a lesser evil necessary to preserve the greater public good.

But anymore, intellectual property law is employed by rights holders as an offensive weapon against the public interest, as when trademark law or rights of personal publicity are used to suppress criticism. It's a subversion of the framers' original intent, but is unlikely to change so long as Disney, Mattel, and Microsoft employ armies of IP lawyers. But every now and then - as in the "12th man" dispute - the ridiculous nature of the problem becomes so patently obvious (worn-out pun intended) that one can only laugh.

In the meanwhile, go Seahawks! Unless, of course, someone out there holds the rights to that phrase.




I was wondering what you thought about this. I am glad to hear you think the Texans will lose. I mean, clearly the Seahawks were using it before Texas got their trademark, but I have become very jaded about these things. There are only so many times you can be disappointed after believing that Texans will finally get what they deserve, before you just give up.

(Have you been following the "Stitch 'n Bitch" vs "Stitch & Bitch Café" brouhaha? Speaking of trademark insanity...)
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