Will Eagles Experience a Brotherly Shove Attempt at the Trademark Office?
Will a Battle Ensue Over Brotherly Shove Trademark Rights?
The Philadelphia Eagles have become known for their successful attempts at a game play they call the “Brotherly Shove” to get touchdown wins from essentially a dogpile shove/push to the end zone. So, naturally, they are attempting to trademark the phrase for use in connection with the sale of merchandise, and sports teams can make quite a bit of revenue selling merchandise that features a trendy name or slogan that consumers recognize. But, will they be opposed by another’s prior rights?
Can “Brotherly Shove” Even Be Trademarked?
A word, letters, slogan, or design can be registered as a trademark only if it is seen as a source identifier of specific goods or services. Although the words Brotherly Shove refer to a specific game formation that the Eagles use in game play, the phrase is becoming synonymous with the Eagles – their fans hear the phrase and think of the sports team. The same type of game formation is used by many other teams and called by other names, but since the home of the Eagles is Philadelphia, known as “The City of Brotherly Love,” they adopted “Brotherly Shove” as the name for their play. Makes sense and a nice play on words.
The Eagles now seek to cash in on the popularity of the phrase via intellectual property rights. They filed for US federal trademark protection of BROTHERLY SHOVE on October 10, 2023 claiming an intent to use the mark in connection with offering “men’s, women’s and children’s clothing, namely, shirts, shorts, jackets, sweatshirts, jerseys, hats, and caps being headwear.” This will require the Eagles to show use of the mark in selling such merchandise before a trademark registration can be granted. The use will need to be the mark used as a source identifier of the goods, and proper use of the mark will need to be in the form of labels, hang tags, product packaging, or point of sale display showing the mark prominently displayed. While use of the mark slapped across a t-shirt front or on a cap is often something a consumer would want, such use is often considered merely ornamental, and more is often necessary. Think about the Nike® swish design on a breast pocket or sleeve. When seen by the public, it automatically lets consumers know it is a Nike® product. Use of a trademark on clothing needs to conjure to consumers the source of the goods. It shouldn’t be too hard for the Eagles, since their fans already think of the phrase in a “brand name” manner related to their successful sports play.
Third-Party Claims to BROTHERLY SHOVE Mark
Only eight days after the Eagles filed its trademark application, a company listed in the United Stated Patent and Trademark Office (“USPTO”) records as Inspired Synergy, LLC filed for a design mark for BROTHERLY SHOVE Stylized Design claiming use of the mark as of the date of the filing, October 18, 2023. The company claims use with “baseball caps and hats.” However, the specimen of use in commerce appears to have flaws – the type of use would likely be considered merely ornamental, and the “use” doesn’t appear to be actual use in commerce (as defined by the USPTO manual of examining procedure), but that will all be reviewed and determined during the examination process of the application.
How will this third-party application affect the Eagles’ application? The United States is a “first to use” trademark jurisdiction meaning that use in commerce is necessary to obtain a registration. However, the USPTO gives priority of review to applications filed earliest. Since the Inspired Synergy application was filed eight days after the Eagles’ application, it will be suspended from review until final disposition of the earlier filed application by the Eagles. So, getting a trademark filed early, even if you do not have use yet, is important to get priority of review. This doesn’t mean Inspired Synergy doesn’t have any remedy at hand. It can send a cease and desist to the Eagles if valid prior rights exist, file a Letter of Protest with the USPTO, or wait until the Eagles’ application is Published for Opposition and oppose the application on the basis of prior use rights.
What To Do With Two Brotherly Shove Trademark Applications
Although the USPTO examination process will provide each of the parties with the ability to preserve its own rights, the examination process is long and the time from filing an application to substantive review is currently taking about nine months. When parties are aware of each other’s claims to confusingly similar marks, it is often in their best interest to take action sooner rather than later to help find a resolution and avoid unnecessary time delays and expenses.
The Eagles may even already have trademark use that hasn’t been claimed, as an applicant can file an intent-to-use application in a rush to get on file and later amend the application with claims of use. Whatever the case may be, the Eagles have some advantages: (1) priority in review of the application, (2) its application filing date provides constructive knowledge to third parties of the Eagles’ claim in the mark, and (3) it could also opt to send its own cease and desist to Inspired Synergy as well as numerous other options for addressing the claims being made by Inspired Synergy via its own trademark application.
For more information about trademark enforcement, see our Trademark Services and Industry Focused Legal Solutions pages.
This article has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company. © 2023 Klemchuk PLLC