Tuesday, March 18, 2008

Broken Dreams

Imagine that you are a big fan of a presidential candidate and that you wanted to show your support for this presidential candidate. What would you do to show that you are a big supporter? Wear buttons? T-shirts? Show up at rallies? How about print t-shirts with the candidate's name on them in the fonts of various baseball teams.

There was a website set up by a Barack Obama supporter called obamaofdreams.com that did just that. On the site, various t-shirts came in the styles of Major League Baseball teams. According to the creator of the site, Morris Levin (scroll down to see the reference), “One of my underlying goals is to marry Obama with mainstream culture through baseball, and I’d like to think that everyone here can appreciate the results, regardless of your political affiliation."

The website, however, is now closed.

What happened? Quite simply, an attorney contacted Levin contending that Levin violated the league's trademarks.

Before you continue reading, please click on the last link to take you to thesmokinggun.com's article on the site (it also has a few examples of the t-shirts). Did you read it? Good.

Thesmokinggun.com brings up two different thoughts without probably realizing it: 1) distinctiveness of trademarks and 2) transformation of trademarks.

Both ideas in trademark law underscore the biggest philosophy - consumer confusion. Consumers must be able to understand the source of goods and services and the quality of those goods or services - else trademarks fail as a system.

Here, if Levin's t-shirts are so transformative that consumers can tell that one of the t-shirts does not come from a baseball team - even if the marks used are so distinct - then it can be argued that his marks do not infringe or dilute the trademarks of baseball teams. On Levin's side is that certainly, baseball teams do not routinely print t-shirts of political figures in their own fonts. On baseball's side is that the marks are so distinct that those fonts are only representative as a source of goods from a baseball team. Plus, baseball teams make t-shirts (as well as many other kinds of clothing). It's a difficult argument, but there arguments for both sides.

One other issue - is a font a trademark? Generally, I would answer that a font is not a trademark. However, many of these teams have operated for many years using the same font and the same (or similar) colors. At some point, those fonts are associated with that team and with that team only.

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