Can a league trademark a broadcaster's call? MLB is about to find out
When Freddie Freeman's grand slam ended Game 1 of the World Series in historic fashion, the online fashion engine got to work practically before he had touched home plate.
Soon after Fox Sports broadcaster Joe Davis declared "Gibby meet Freddie!" — a reference to Kirk Gibson's home run in Game 1 of the 1988 World Series, at the same hour and minute, in the same region of the same ballpark — you could buy this, this, this and this.
The next business day was Monday, Oct. 28. That's the day when Major League Baseball filed a trademark application for Davis' call ("Gibby, meet Freddie!"). According to information on the U.S. Patent and Trademark Office website, as reported by Sportico, the trademark would be used for everything from headwear and shirts to aprons, infant wear, and undergarments.
Davis told The Big Lead he isn't aware of any of his on-air calls being the subject of trademarks — not by him, not by anyone.
Josh Gerben, a trademark attorney and the founder of Gerben IP, said this was rare from his experience, too.
"You don’t see it happen often," Gerben told The Big Lead. "It’s unusual to have something like this, that a league runs out to protect. I think it comes back to how historic it was, and is."
The more interesting question is whether this sets a precedent — and if so, how it affects the parties involved.
Consider first the players, Kirk Gibson and Freddie Freeman. MLB already has consent to use players' names on all sorts of merchandise — typically, jerseys — but how revenue from licensed merchandise sales gets distributed is determined via bargaining with the players' union. A spokesperson for the MLB Players' Association declined comment for this story.
Gerben said the U.S. Patent and Trademark office requires that any party requesting a trademark obtain consent to reference a living individual. Gibson and Freeman are both very much alive, so in theory both would have to provide consent before the trademark is approved. MLB's trademark application does not mention Gibson or Freeman by name.
MLB (which has thus far declined comment in published reports) is not powerless in the interim. Gerben said Amazon’s brand registry allows entities that file for trademark protection to block certain types of goods from being sold on the online platform.
"Just file the application and a lot of online platforms allow (the entity that applied for the trademark) to police the market for anything that runs afoul" even before the trademark is approved, Gerben added. "That actually does happen a lot with smaller websites."
For independent online retailers seeking to capitalize on Davis' famous phrase, it's reasonable to expect a "cease and desist" letter if one hasn't landed already. Perhaps this will be the rule, rather than the exception, in the future.
Given the historic nature of Freeman's homer, there could be big money at stake. According to cllct.com, boxing announcer Michael Buffer trademarked his signature phrase "Let's get ready to rumble!" in 1992, resulting in $400 million in revenue licensing the phrase for music, video games and merchandise as of 2009.
According to the PTO, trademark applications typically require 12 to 18 moonths to approve.
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