The Denver Broncos' use of Texas A&M's registered trademark "12th Man" during a playoff game forces the university to publicly assert its trademark rights.
Although college football is officially on hiatus until next season, the NFL is still generating controversy on the gridiron—this time in the world of trademark law. The issue arises from the Denver Broncos’ use of Texas A&M’s “12th Man” trademark during their playoff game against the Steelers on January 8th. Apparently, a man parachuted into the stadium during the pre-game festivities with a flag trailing him bearing A&M’s registered mark, which was later flown throughout the game. Unfortunately for the Broncos, the use of the “12th Man” mark caught the attention of Aggie alumni across the nation including Texas A&M’s vice president for marketing and communication, Jason Cook.
As Texas Tribune’s Reeve Hamilton reports, Cook tweeted a quick response to the Broncos’ use of the “12th Man” mark saying “FYI #Broncos, the 12th Man belongs to Texas A&M. We saw the flag today and will defend our trademark. #TAMU#gigem.” Cook later declared in an interview with the Texas Tribune that “[t]he 12th man is synonymous with Texas A&M University” and that “[w]e take the protection of our marks very seriously. They are part of our intellectual property at the institution.” Cook is correct in that A&M does take the protection of its marks seriously. In fact, only six years ago A&M had to protect the same mark from being used by the Seattle Seahawks. Although the dispute with the Seahawks ultimately led to an out-of-court agreement granting the Seahawks a limited license to use the saying, the dispute put the public on notice of A&M’s intention to maintain and protect its “12th Man” marks.
So, why is it so important for trademark holders, including Texas A&M University, to protect their trademarks and go after seemingly harmless uses like those of the Broncos? Well, it all stems back to the purpose of a trademark as a source identifier used to easily identify from whom goods and services originate. The phrase “12th Man” has long been associated with A&M and the use of the mark on goods and services signifies that A&M endorses such products or services. As can be imagined, trademark holders want to protect the integrity of their brand names and prevent others from taking advantage of their marks without permission or some sort of license.
In addition, it is possible for a trademark holder to lose a mark for failing to protect it. When a mark is not protected, it can slip into the public domain by becoming generic. For example, brands like Escalator and Trampoline have slipped into the public domain and are no longer identified with the sources that originally coined the terms. Therefore, it is imperative that trademark holders seek out and stop unauthorized uses of their trademarks and continue to make the public aware that such marks should only be associated with the individual trademark holders.
By bringing actions against the Seahawks, and now the Broncos, Texas A&M is enforcing its rights in the mark “12th Man” and putting the public on notice that the phrase should only be associated with the university. Without A&M’s diligent enforcement of its rights to the mark, the “12th Man” slogan could potentially fall into the public domain as more and more football fans associate the meaning of the term to apply to those in attendance at a football game.
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