A letter from the lawyers

This week, when you look at the Seattle skyline, you may notice a large blue flag on top of the Space Needle. It has the number 12 on it. Similar flags and banners have popped up around the city. They were all over Qwest Field last week during the playoffs. Sports fans know what they mean.

The banners laud the 12th man – the one instrumental in Seattle Seahawks drive to the Superbowl. Sportscasters have been talking about how the support of the fans at the stadium truly gave the Seahawks the edge they needed to make it to victory. There are very few cities where the teams and media have to spend so much time telling the fans how important they are, but that's another matter.

The Seahawks have quite a tradition around the 12th man. In the old concrete Kingdome, the fans could drown out most anything. According to the Seattle Post Intelligener on 2005-01-28:
The 12th Man began in 1984, when the Seahawks retired the jersey number 12 to honor their fans. Back then, the otherwise drab Kingdome was the loudest venue in the NFL, even though the team had just two winning seasons in its first seven years after beginning play in 1976.
The league even briefly instituted a rule in the 1980s calling for a five-yard penalty on teams if their home crowds did not quiet enough for visiting teams to call plays. It was widely known as the "Kingdome rule."
[Seahawks fan Mike] Davis said "the most amazing thing I had ever seen" was the day Denver's John Elway stepped away from his center amid the din. Elway turned his palms toward the Kingdome's concrete roof and pleaded to the referee that he could not call signals. The referee eventually flagged Seattle more than once that afternoon.
"And then we got even louder," Davis said. "It was awesome."

The amazing this is, though, the Seahawks and merchandise vendors may get sued for celebrating the 12th man.

Apparently, Texas A&M has a tradition surrounding the 12th man in football, going back to the 1920s. They registered trademarks for the 12th man in 1990 and 1996. And they plan to protect their trademark. According to the Seattle Times on 2006-01-28:

[Texas A & M] Athletic Director Bill Byrne wrote on an Aggie Web site Wednesday that the university would tackle "the Seattle Seahawks' brazen use of the 12th Man theme at their home playoff games."
The university has sent a cease-and-desist letter to the Seahawks. "It's one of the dearest traditions we have," said Steve Moore, A&M's chief marketing officer.

So A&M is not happy.

I understand and respect the importance of protecting trademarks, however, it seems to me that this claim is over reaching a bit. After all, you don't want to spend the money building a brand only to lose Trademark protection if something becomes a generic term, a threat familiar to those marketing Band-Aids, Kleenex, Xerox, and potentially Coke and Starbucks.

First of all, they appear to be claiming that the use of the number 12 on banners and merchandise (much of it not developed by the Seahawks) infringes on their claim. I wasn't aware you could trademark a number.

Second, by rudimentary knowledge of trademark law (and it is very rudimentary) seems to indicate that there is no infringement unless the use of the trademarked item is likely to cause confusion for consumers.

I seriously doubt that anyone is likely to see the Seattle praise of the 12th man and think, “Huh. When did the Aggies make it to the Superbowl? I didn't know they were in the pros.” Or, “Hey – I paid $2,000 for these tickets based on the 12th man celebrations, and their for some kind of bird in Detroit? It was supposed to be A&M! I've been ripped off!”

Finally, this is a phrase that's been a part of the pop culture for decades, and has referred to fans from nearly every NFL team.

The basketball equivalent, the 6th man has been even more popular, especially since in that game, the fans are right on the court and actively attempt to manipulate the outcome through various displays and distractions during free throw attempts.
The 6th man even spawned a comedy of the same name starring Marlon Wayans, where a basketball player who dies returns as a ghost to help his brother lead the team.

Seattle doesn't get that much time to celebrate potential victory in the national spotlight. Do we really need this hassle from A&M?

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