Seattle Football and The Twelfth Man Trademark

EDITORIAL NOTE: Long time readers of IPWatchdog.com will remember Beth Hutchens. Between September 2010 and April 2013, Beth wrote a month for us. Other commitments took her away for a while, but now she is back. We look forward to publishing more of her entertaining, witty and informative writings in the months to come. Welcome back Beth!

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I was never terribly “into” football. I didn’t hate the sport or anything, I just never really cared enough about it to have an opinion either way.   Then I moved to Seattle and everything changed. I now live squarely in “12th Man territory,” and I can assure you, Seahawks’ football is no joke.   If its football season and you are not wearing blue and green at brunch, you’re not quite a pariah, but you’re definitely a weirdo.

I am admittedly a “newbie” to the whole football thing, and though I’m still learning, I’ve spent the last few Sundays with nine of my closest friends yelling and cheering like a mad fool while stopping intermittently to ask questions that I can only assume range from completely stupid to slightly annoying (did I mention that my nearest and dearest are also very patient?). Knowing that I am an intellectual property attorney, every time there is something that even smells like an issue (which is often because, hey — it’s the NFL), they ask me about it, and I am more than happy to discuss it. They learn intellectual property, I understand the difference between a punt and a kick, and everybody’s happy.

Recently, after teaching me about the onside kick, one of the nearest and dearest remarked, “Hey Beth, did you know that Texas A&M owns “12th Man,” and not the Seahawks?”

“Oh?”

“Yeah. But Seattle is, like, ALL 12th Man and everybody knows it. How does that work?”

So with many thanks to my friend for the idea, permit me to ‘splain the 12th Man trademark.

While it may be common knowledge that Texas A&M (“TAMU”) owns the mark, what may not be so clear is how and why this came about. Most people know that the 12th Man, as a concept, refers to a football team’s fans. There are 11 players on the field with the extra, or twelfth “player” being in the stands. Let’s talk a little history for a minute. For the record, I am not a sports historian, but it is kind of a cool story. Very briefly, in 1922, TAMU’s beloved Aggies were struggling against the dreaded Centre College. It was a dramatic game fraught with injury to the point that the Aggies wouldn’t have enough players if one more person got hurt. The coach recruited a young man from the stands and told him to suit up. The young man did not play, but stood by ready to jump in if he was needed, thus becoming the 12th player for the team. The Aggies went on to win the day with that remarkable “12th Man” standing on the sidelines. Aggie fans have called themselves the 12th Man ever since. Eventually, though, other teams began using the term to refer to their own fans, both at the collegiate and professional level, and the phrase is now commonly defined as a term for any fan of an American football team.

Tabling the generic or descriptive arguments for just a bit, we need to talk about what happened next. The answer is nothing much until the 1980’s and 1990’s when TAMU applied for, and received, a series of federal registrations for the 12th MAN trademark. Shortly thereafter, it began enforcing its mark by sending cease and desist letters to teams who were using it without permission. Most teams complied. Then, in 2005, when the Seahawks started to gain some national attention, TAMU requested that the team stop using “12th MAN.” The Seahawks did not comply. Hilarity ensued, litigation followed, a settlement occurred shortly thereafter, and the 12th Man licensing agreement was born.

As an aside, while TAMU has arguably been using the term “12th Man” since that fateful day in 1922, one may argue that the term has become merely descriptive or even generic at this point thanks to social media. The license was negotiated when Twitter wasn’t even a thing yet, and recent events have certainly shown that Seattle fans, if anything else, show their team lots of love online. If one fires up the ol’ Google Machine, it is common to see several different references to the term, including a Wikipedia page, that use the term generically to refer to football fans. In other circumstances, then, couldn’t one argue that the marks are no longer valid? In other circumstances, sure, but even if the marks weren’t incontestable (they are), and even if someone somewhere somehow could successfully argue that the mark no longer has any source indicating power, Seattle can’t and won’t. The settlement agreement and resultant license forbids it from making any kind of validity challenge to the mark. So there you have it. Let’s move on.

As part of the settlement agreement, Seattle can use the number 12, and whatever rendition of 12 it wishes, so long as it sufficiently distinguishes whatever mark it comes up with from “12th MAN”. They can use “12th MAN” in advertising and promotional items provided proper notice is used but they may not, however, use “12th MAN” on merchandise, including the flag. Ever notice that the “12th Man Flag” at CenturyLink Field is just the number 12? Now you know why. The Seahawks can refer to it as the “12th Man” flag, but can’t put the word “man” anywhere near the number 12. The agreement also requires Seattle to cooperate with TAMU’s enforcement rights against alleged infringers. The license term is set to expire in 2016, which means that, unless something happens, Seattle will no longer be permitted to use “12th Man” or any phonetically equivalent rendition whatsoever (which may or may not include the word “fan”, but that is another argument for another day).

Impending expiration notwithstanding, I’d be surprised if renewal negotiations aren’t already taking place. TAMU can ask for a bit more money, Seattle can pay up, and we can all return to our regularly scheduled programming. But what would happen if neither TAMU nor Seattle want to (hyuk hyuk) play ball? That would mean that Seahawks could no longer use “12th Man,” but I’m not sure that would be a catastrophe. Seattle fans may refer to themselves as the 12th man, but they rather frequently simply say “The 12’s” or “We are 12” (insert Borg joke here). While I doubt the casual observer would even notice – much less care about – the distinction of “12” versus “12th MAN,” it’s an important distinction as far as the license goes. For what it’s worth, I smell a rebrand and a slow shift to getting rid of the use of 12th MAN entirely. Currently, Football Northwest (the company who owns the Seahawks’ IP) has several pending trademark applications for “12’s,” “We are 12,” “The 12’s,” and other 12-type concepts. It also currently owns the stylized mark “12.” Is it too much of a stretch to think that part of the strategy will be to politely decline to relicense “12th MAN” and move toward something else? The Seahawks don’t have to raise the “12th Man” flag, they can simply call it the “12 Flag” or the “We Are 12,” or any other flavor of 12 that doesn’t use the word “man.” Granted, the 12th man “thing” is important to the Seahawks franchise and its fans, but is it really THAT important?

While I would like to predict that 2016 will show us something a bit more exciting than an amicably negotiated license and a quiet rebranding protocol, my Magic 8 Ball won’t let me. But then again, we’ve all seen the tragic results of my Magic 8 Ball’s predictions, and after that fake field goal touchdown against the Packers, I’ve seen enough Seahawks football to know that anything can happen.