The Poison Pen

SPARTA, NJ, APRIL 7, 2006 — So it begins. Our trademark battle with the famed New York Yankees started with a list of questions. The first set of inquiries was delivered in document form: they pushed paper at us; we answered the questions; and then pushed the papers back. In so many words, the Yankees have essentially asked: “What were you thinking when you started this business?”

Good question. The truth is, we were thinking about having fun. About making people laugh. About trying to even the score with our friends who support Big George and his evil band of mercenaries. This playfully antagonistic spirit has always existed between the fans of sports rivals. Does this fan “spirit”–and all the great cheers, rally devices, and commentary that is borne out of it–necessarily become the property of MLB and its teams? Or do we, as fans, get to keep a little for ourselves? These are the questions that lie at the center of our trademark dispute with the famed New York Yankees.

Here’s what I do know: In 2004, after Red Sox pitcher Pedro Martinez identified the Yankees as his “Daddy” after a frustrating loss, the Yankee fans created a “Who’s Your Daddy?” chant that MLB quickly spun onto a t-shirt. The t-shirt, which depicted a pacifier with a Red Sox “B” on the handle, was later pulled off the market after a popular Boston fan site launched an embarassing protest that gave new meaning to the term “thin skinned.” The “Daddy” t-shirt was an example of MLB: (1) instantly packaging for sale something that the fans created in the stands; and (2) using merchandise to take a shot at Boston, to the amusement of the Yankees fan base. MLB recently sanctioned a “Welcome to New York” t-shirt in honor of Johnny Damon’s arrival in the Bronx. The t-shirt exploits the New York fans’ fixation with Boston’s 86-year championship drought; on the back of the item it is suggested that Damon will enjoy playing in a city “where winning happens more than once in 86 years.” Naturally, I don’t care for the shirt myself. Though it certainly appears to be within the bounds of fair play. Until you consider, however, that MLB (to my knowledge) has NEVER sanctioned an item that points fun at the Yankees’ expense. This is the case despite the fact that the Yankees are, by far, the most despised team in sports (not to mention the most-beloved). All this is relevant from a legal standpoint.

The demand for anti-fan gear should have been blatantly obvious to the Yankees and MLB for years. But ownership of this business space does not, in our opinion, automatically belong to the targeted party (example: the Pedro and Damon shirts came from the NYY and MLB factions). For starters, the anti-fan sentiment is created by the fans. Its essence is incapable of being owned by anyone. Sure, there may be trademark-able ways to express the anti-fan sentiment, such as a clever logo or a snappy phrase. But you have to enter that space to grab a share. The Yankees haven’t entered the self-deprecating space. So others have rightfully moved in. Like us.

And we did it right. Luck helped. Though we originally had parody in our mind when we developed the “YH with Horns” logo, Curt Schilling inadvertently made the public well aware of the difference between a YH logo and a NYY logo. This all happened before we had sold a single cap. Within less than 24 hours from the running of the Schilling photo, we had sold thousands of caps. Trust us: the purchasers were not confused Yankee fans suddenly eager to buy a hometown cap through a fledgling internet business. The emphatic remarks that customers included with the cap orders (many of which cannot be published here)made it clear: there is no confusion between our products, and theirs.

Yet, “confusion” lies at the center of this trademark dispute. The Yankees will have you believe that the public is wildly confused about our YH caps. Their legal documents claim that we’re tricking people into thinking that our YH caps were sanctioned by the Yankees or MLB. Or, funnier still, that the public has been buying YH caps under the mistaken belief that they are NYY caps. Seriously. That’s what they are claiming.

Here’s another noteworthy point: there’s an MLB insignia on the back of the same DVD that includes about six minutes worth of footage of David Ortiz wearing our YH cap. The name of the DVD is “Faith Rewarded” (It’s a well-done recap of the Sox 2004 championship season). You can buy a copy right now at MLB.com. So here it is: MLB trafficked our logo to millions of paying fans, and are now saying that WE perpetuated a mistaken belief in the minds of the public that our YH caps are a MLB-licensed product. Classic.

Here’s what’s really going on. The Bronx Bombers & MLB are either trying to rid the planet of all anti-Yankee sentiment, a clueless position which should be offensive to all those fans who have stoked this tremendous rivalry over the years. Or, they are trying to move in on a valuable and famous logo that we spent years promoting, knowing that it could reap multi-million dollar rewards with their channels of distribution. We don’t like either of those results. But upstart apparel maker Bygone Sports (which thought to trademark the name “Washington Nationals” in 2002, a thought that somehow didn’t occur to MLB’s own attorneys) proved that it is possible to grapple with the big boys and prevail (rumor has it that Bygone Sports received a large settlement; this occurred after MLB attorney Ethan Orlinsky insisted for months that MLB would prevail or else change the name of the team).

Frankly, we proposed a partnership with MLB back in 2004 after the YH products made a much bigger splash than we could have expected. Still waiting for a response to that proposal. Unless, of course, you want to count the legal papers that have now been filed in the trademark dispute.

STAY TUNED FOR MORE…

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