Sneaky Bullies?

The United States Olympic Committee sent a cease and desist letter to Oxbow High School in Vermont asking the school to stop using OLYMPIANS as the name of its sports team.

Greg Fennel of the Valley News thinks “[t]his is a fight Oxbow most definitely should fight” because USOC is a bully picking on a “target[] they consider easiest to harass” and “sneaky” for acting on an “anonymous tip.”[1]

Oxbow Is Infringing

Mr. Fennell says there’s no infringement because the school isn’t “financially profiting from its Olympian nickname [and if it is] it’s only in a minuscule fashion.”

It’s irrelevant whether the school is benefitting financially. Because the mark OLYMPICS® is both famous and distinctive, USOC doesn’t even have to show that there’s a likelihood of confusion in order for the school to be infringing. [2]

USOC Is Not a Bully

USOC isn’t a bully. If USOC gives Oxbow a pass, then the next group that uses OLYMPIANS will be able to point to Oxbow as evidence that OLYMPICS isn’t distinctive. USOC knows it has to protect its rights or risk losing them.

Our Olympians Count on Trademark Protection

Mr. Fennel demonizes USOC because “[t]he bulk of [USOC’s] dough comes from commercial sponsorships”. He thinks USOC should spend its time dealing with its other problems instead of picking on Oxbow high school.

CocaCola® sponsors U.S. teams in exchange for the rare right to use USOC’s trademarks. It’s the exclusivity that creates the value. USOC’s problems won’t be solved by destroying its ability to fund itself.

Trademark owners protecting their rights aren’t sneaky bullies. They’re just doing their duty. I hope the school decides to listen to legal counsel instead of the local sports writer.

 

Thanks to Melissa B. for the heads up on this story.

bl_brandfooter

[1] All quotes from Mr. Fennel are taken from the article “Oxbow Should Tell USOC to Scram” in the Valley News on July 21, 2018.

[2] “[T]he owner of a famous mark that is distinctive . . . shall be entitled to an injunction against another person who . . . commences use of a mark . . . that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.” The mark is also protected by a separate statute that protects the trademarks of USOC.

The Good Old Days

In the decade of the 1880s there were 36 applications filed to register trademarks.

In the decade of the 1980s there were 592,301 applications.

In the first decade of the 21st century there were 2,612,184 applications.

Those are some pretty astonishing numbers. In fact, there has been an increase in the applications filed every decade since 1880, except for the 1930s when there was a slight decrease, presumably because of the Great Depression.

But while the number of applications has been increasing, the percentage of those applications reaching registration has been decreasing.

Every last one of the 36 applications filed in the 1880s reached registration. Wonderfully, four of them are still alive today.*

For the 1980s, only 77% of them reached registration.

And for the first decade of the 21st century, only 54% of them reached registration. Here are the data:

Screen Shot 2018-05-01 at 3.26.24 PM.png

So, what’s going on here?

I believe there are two factors at work. First, because there are so many trademark registrations, the likelihood that a new trademark is confusingly similar to an existing trademark is much higher. It’s just a lot more likely your new trademark is similar to one of the 2,366,194 live registrations now than to one of the 36 live registrations back in 1889.

Second, there are a larger percentage of applications being filed without the use of an attorney. As a result, applicants are more likely to file applications that never stood a chance.

Bottom line: It’s hard to find a trademark that’s available. Don’t waste your money** filing an application unless you think you have a good shot.

 

 

Photo of USPTO © 2018 S. Elizabeth Birnbaum, used with permission.

bl_brandfooter

 

*SAMSON®; WASHBURN’S GOLD MEDAL®; one of the registrations for BUDWEISER®; and a logo mark for beer consisting of a triangle.

**There were 1.2 million rejected applications in the first decade of the 21st century. That’s about $361 million in wasted Trademark Office fees.