Posted on 01/31/2006 4:46:36 AM PST by texianyankee
A local district judge on Monday signed a temporary restraining order against the Seattle Seahawks, directing them to stop using the 12th Man slogan until a ruling is made on whether it is a licensed trademark belonging to Texas A&M University.
The restraining order, filed by A&M and signed by District Judge J.D. Langley, sets a 1:30 p.m. Thursday hearing in the 85th District Court at the Brazos County Courthouse.
Seattle, which will play Pittsburgh in Super Bowl XL on Sunday in Detroit, has received national attention in recent weeks for its devoted fans, whom it calls the 12th Man.
The Seahawks have used the slogan in various forms in team merchandise. Monday afternoon, a banner with the number 12 hung from the team's hotel in Dearborn, Mich. And a No. 12 flag now waves atop the city's signature Space Needle.
Seattle's 12th Man started in the mid-1980s when capacity crowds made the now-demolished Kingdome one of the NFL's loudest venues. That support has been magnified in 67,000-seat Quest Field, where the Seahawks have won 23 of their last 26 games.
A&M has used the 12th Man slogan for decades, but the Aggies made it official in 1990 when they received the licensing trademark - a step the Seahawks never made.
According to Aggie tradition, A&M's 12th Man originated on Jan. 2, 1922, during an Aggie football game against Centre College. A&M student E. King Gill came down out of the stands and stood on the sideline in case he was needed. He didn't play, but his desire to help the team was the spirit that has been embedded in A&M's 12th Man tradition, which entails students standing throughout a game.
"A&M has had this by common law ever since the 12th Man came out of the stands," said Bill Youngkin, a Bryan attorney representing A&M along with a Dallas law firm. "So even without formalizing a trademark, by common law they would have some rights."
Thursday's hearing will determine whether A&M's claim has validity, which could result in a temporary injunction against the Seahawks until another hearing to determine whether a permanent injunction is warranted. A&M contends that Football Northwest LLC - the Seattle Seahawks - has promoted for years the 12th Man phenomenon in advertisements, on its Web site and through merchandise it sells.
In its lawsuit, A&M attached examples of infringements made by the pro team, including pictures of a button with "Thanks 12th Man" below the team logo and various T-shirts that say "Seahawks 12 Man" in huge print with the team logo.
A&M sent a cease and desist letter to the Seahawks in early December 2004, contending that Seattle never removed the 12th Man references from the Web site or magazine, which it told A&M it would do in correspondence six weeks earlier.
Lance Lopes, Seattle's vice president in charge of corporate partnerships and legal affairs, acknowledged that A&M had trademark rights to the 12th Man in late December 2004, but defended his team's use of the 12th Man.
"Based upon a number of factors FNW believes it has a valid legal basis to defend its use of the 12th Man in conjunction with its activities here in Seattle," Lopes wrote in court documents. "In brief, FNW believes Texas A&M would have a difficult and expensive task of proving the essential element of confusion based upon our activities. In addition, there is the risk that the trademarked phrase could be deemed too descriptive and general in nature as to be enforceable.
"The 12th Man is often used in common parlance when referring to the fans of teams. Pursuing these defenses however, will be expensive and involve risk for both parties," Lopes wrote.
He did not return phone calls Monday.
In 2005, Seattle offered to pay A&M a $10,000 licensing fee for a "specific, narrow and limited use of the phrase" for 10 years, according to court documents.
The battle continued, and Seattle again offered $10,000 as recently as November, with Lopes reconfirming the team's position that it had a "valid legal basis to defend its use of the 12th Man in conjunction with its activities in Seattle."
The fact Seattle made it to the Super Bowl is not what prompted the lawsuit by A&M, according to Youngkin.
"[The timing] had to do with when it became evident what they were doing in utilizing the trademarks that A&M has," Youngkin said. "A&M sent them a cease and desist request letter. And they've not complied with it. A&M has had to do this in the past with other organizations."
But this is the first time A&M has had to file a temporary restraining order, officials said.
"We had similar situations with the Buffalo Bills and the Chicago Bears, and they responded quickly with our requests to stop using our 12th Man trademark," A&M director of athletics Bill Byrne said in his weekly Internet column.
When warned by A&M, the Miller Brewing Company also quit making references in advertisements about the 12th Man.
"In all instances, they complied to cease and desist letters," Youngkin said. "Seattle is the only one that has been dilatory."
Youngkin said Seattle could seek a venue change for the hearing since federal statutes, trademarks and potential copyrights are involved. Youngkin said if that happens, the Southern District of Texas in Houston would be a possibility.
FYI
Gig 'em, Aggies!
Farmers Fight!
Is this guy a local district judge or a federal judge?
If he's not a federal judge, then we have a TEXAS judge issueing a ruling that favors a TEXAS corporation.
Surprise, surprise.
Hawks could tell him to pound salt.
I'm fairly sure this judge is not a federal judge - rather a local judge.
When the Aggies become worthy of owning the #12, that's when they can have it back.
Interesting that the article even admits (and I remember) that the Hawks were using it in the mid 80's, well before they got the Trademark.
I don't know trademark law, but I would think that even if you get a trademark for something that's already in use, their use of it has to be grandfathered in.
I still think the Hawks oughta tell A&M that it'll be a cold day in hell before they EVER draft anyone from A&M. This is not a very good stunt for them to pull six days before the SB.
12th man, 12th man, 12th man...
So sue me.
A&M is hardly a Texas corporation, and the Seahawks had better not tell him to pound salt.
They can seek to have it removed to Federal Court and such a request would probably be granted, but venue is also proper in Texas district courts.
I'm inclined to disagree. The SeaHawks are not a "person" who is "subject to his jurisdiction".
And just how can a local judge issue a ruling that has to do with FEDERAL trademark law anyways?
He can't.
If you think you can only be sued in a state court where you live, you're quite mistaken.
This is a diversity of citizenship case, and as such, properly belongs in a Federal court.
It is also a federal law case, the judge DOES NOT have subject matter jurisdiction.
And I'm done arguing with you on the issue.
That's probably for the best since you've asserted an incorrect position.
Looks like a bunch of pissant 1-L students class project.
Actually the judge is a Steeler fan (we're everywhere) and is doing this just to distract the seahawks w/ a ridiculus and meaningless issue.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.