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Thursday, March 23, 2006
 
Yankee Hater Logo, Trademark Law, and Corporate Paranoia

ESPN's Darren Rovell has a great piece on Mike Moorby, a 38-year old financial advisor from New Jersey who created a side business devoted to all things hating the New York Yankees. (Rovell, "The Yankee Hater Biz," ESPN.com, 3/22/2006). I know what you're thinking: Why hasn't anyone come up with this concept before? After-all, who could possibly like the New York Yankees? But I digress. Moorby is a diehard Red Sox fan who thought it would be fun to create a Yankee Hater ("YH") logo.

Moorby's business, Rebel Forces LLP, took off in 2004 when such Red Sox players as Curt Schilling and Kevin Millar started wearing hats with the YH logo. But the fun stopped when Major League Baseball sent him a cease-and-desist letter, and when the Yankees filed an opposition to his trademark application. A hearing before the Trademark Trial and Appeal Board could occur in the coming months. The Yankees claim that consumers are confused by the similarity in logos (even though the logo and colors seem obviously different):









Rovell interviewed two persons for the story, including me. Needless to say, this is a story that I loved being interviewed about:
Two legal experts contacted by ESPN.com, however, say that it's possible Moorby can defeat the almighty Yankees. Winning a trademark case, they say, requires proving either that a certain brand has been compromised or that there is confusion about who is selling the product.

"The Yankees aren't hurt by this," says Marty Schwimmer of Schwimmer Mitchell, a trademark law firm in New York. "Add to that the fact that sports owners have accepted the degradation of their names and logos as part of 'good-natured' tarnishment. It's all part of the game." As evidence, Schwimmer cites colleges that routinely make licensing royalties by allowing their mascot to be demeaned by an opposing school's mascot on merchandise, as, for example, the University of Alabama does when it contracts with a merchandising company in Auburn, Ala., that prints T-shirts featuring 'Aubie' spanking little Alabama elephants.

"This is the classic case of corporate paranoia," says Michael McCann, an assistant professor at the Mississippi College School of Law. "If they try to make the case that consumers are confused as to what is being sold here, that's absurd. You don't even have to be a baseball fan to recognize the difference between a Yankee Hater logo and a Yankees logo."
You'd think the Yankees would have other things to worry about, like their aging pitching staff or how their brand new (yet 32-year old) $50 million center fielder is already hurting, but I guess not.





7 Comments:

I saw the photo before I read the article and I thought the red hat was just an alternate color scheme for a Yankees hat. It even took me two looks to notice the slight change in angle of the middle horizontal bar that is the only difference (other than color) between the two logos.

Anonymous Adam -- 3/24/2006 1:14 AM  


Outside of the cease and desist order, what other legal punishments could potentially the owner of Rebel LLC face?

Anonymous Anonymous -- 3/24/2006 12:44 PM  


Anonymous: Rebel Forces might have to disgorge profits or otherwise compensate the Yankees if found to have infringed on the Yankees' trademark. But I suspect the Yankees are most interested in stopping the business rather than receiving any possible damages from past infringement. In theory, the FTC and relevant state attorneys could also threaten action if they felt consumers were being duped by Rebel Forces, and under certain state consumer laws, the Yankees may also have recourse. But I don't think Rebel Forces likely faces any sanction other than not being allowed to continue to sell YH paraphernalia. And although Adam believes the logos are similar, and others might feel similarly, I believe the TTAB will find them sufficiently distinct for purposes of consumer identification.

Blogger Michael McCann -- 3/24/2006 8:31 PM  


The first time i saw this logo was on a hat worn by Curt Shilling. I saw it and immediately did not know what it was, it certainly looked like a Yankee hat, however anybody knows he would not wear a Yankee hat. From a distance or seeing someone wearing it on TV it definately looks like a Yankee hat. Maybe there is a problem with the law because they use the same design in lettering as the Yankees do.

Anonymous tommie -- 3/24/2006 9:39 PM  


Prof. McCann
I agree that this is absurd, especially considering the amount of revenue the Yankees bring in already. However,new era has many,many assorted color patterns for the Yankees, even pink and green. Additionally, I seem to remember the Yankee Hater hats having different color schemes. How do you think that may effect the case?

Blogger Derek Aswell -- 3/25/2006 4:40 PM  


I don't see how the Yankees can win this case - while the hat certainly parodies the Yankees logo with the font and placement of the letters, the letters are in fact different (YN, YH).

If the Yankees were to win the case, wouldn't teams with similar logos to other teams (for example the University of Alabama Crimson Tide and the Atlanta Braves) have to settle their logo issues as well?

The Crimson/Braves logo is much more similar than the YH/Yankees logo, in my opinion. Even though the YH logo is derived from the Yankees logo, it's not as if he is selling the hats by pretending they are in fact authentic Yankees gear.

For instance, someone who sold false Apple products by flipping the Apple logo would get in trouble. Would someone who hated Apple and sold anti-Apple gear (that Apple also sells, i.e. mp3 cases or something like that) with a backwards logo get in trouble? Is that a stickier issue if the letters are not as obvious?

Blogger Satchmo -- 3/25/2006 8:30 PM  


I don't like the Yankees, but the color scheme of the Yankee Haters hats alone will not suffice to differentiate it from the Yankee logo itself for trademark purposes.

As Derek said, even a casual walk through a sporting goods store reveals a number of bizarre color schemes with the Yankee logo (including pink and green).

It's easy to see distinctions between the logos when you know in advance that one is a Yankee Hater logo, but if you've never heard of the Yankee Haters and see the logos, you'd have to look very carefully to see the difference. The H is cleverly stylized to approximate the N in the real logo.

The logos themselves are sufficiently similar to cause confusion, as is evidenced even by the comments posted on this blog, which probably includes a few more discerning eyes than exist in the general public.

Admittedly the Yanks may have watered down the blue and white Yankee colors by allowing alternative schemes, but those alternative schemes have trademark protection too, when associated with the Yankee logo.

The Yankee Haters can take a "parody" angle to avoid infringement. The problem is that it isn't obviously a parody. It doesn't say "Yankee Haters" under the logo as a giveaway. An average consumer could easily pick up this hat thinking it is a Yankee hat with an alternative scheme, and unwittingly represent himself as a Yankee Hater.

Blogger ChapelHeel -- 3/27/2006 11:20 AM  


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