By Justin Kouyoumdjian, 3L, Santa Clara Law School
Fans of the National Football League will agree that the Minnesota Vikings’ “Skol” chant has evolved into one of the most recognizable and iconic traditions in the sport.[1] Rooted in Scandinavian history, the “Skol” chant was embraced by the Minnesota Vikings in 2016 as a means to deepen fan engagement and foster team culture. Id. Before each game, a representative that embodies the culture and history of the team conducts the chant and leads attendees through a collective, rhythmic clapping choreography accompanied by the resonant roar of fans yelling “Skol.” Should the Minnesota Vikings be able to claim the exclusive rights to the commercial use of this phrase?
Likewise, followers of the Los Angeles (previously Anaheim) Angels are well-acquainted with the “Big A,” a distinctive A-frame structure adorned with a halo.[2] Built in 1966, the structure quickly became a prominent and recognizable feature of the stadium, symbolizing victory through its illumination and flashing after Angels’ wins. Id. Despite renovations, upgrades, and even a re-franchising, this architectural feature has endured, evolving into one of the most prominent symbols of Angel Stadium and a distinctive representation of the team. Id. Should the Angels be able to claim the exclusive rights to the commercial use of this physical structure?
The iconic nickname “The Frozen Tundra,” has become synonymous with the enduring spirit of Lambeau Field and the Green Bay Packers.[3] Lambeau Field’s open-roof plan in conjunction with the stadium’s northern location and unforgiving winter conditions set the stage for its historic nickname. Id. In 1967, the nickname spread after the Packers were host to one of the NFL’s most memorable games – one against the Cowboys in which temperatures hit a low of -17 degrees fahrenheit. [4] Since its inception, the nickname has been deeply associated with the Packers organization and its loyal fan base. Id. Could the Green Bay Packers claim exclusive rights to the commercial use of the “Frozen Tundra” nickname for Lambeau Field?
The stadium features alluded to above all add rich history to their organizations. However, they are also each categorically different from each other. “Skol” is a chant recited by the audience, the “Big A” – a physical structure, and “The Frozen Tundra” – a nickname. A stadium feature can be any distinctive aspect, tradition, or physical characteristic associated with a sports arena.[5] These features contribute significantly to a team’s identity and are recognizable by fans and the public.[6] Stadium features can also be both tangible and intangible. Id. Whether physical structures, fan rituals, or nicknames for stadiums, these elements collectively enrich a team’s identity and the unique ambiance of its home arena.[7] If done correctly, registering for a trademark and using a mark in commerce can allow sports teams to enhance their brand identity and improve economic strategies while preserving positive fan experiences and community engagement.[8] Along with benefits to the team, granting teams the ability to trademark these features furthers the purpose of trademark law which is to mitigate consumer confusion, ensure source identification, and prevent unfair competition. Id.
This paper examines the distinct features of some of sports’ most historic and renowned arenas, exploring the argument that these features should be protectable under trademark law. Unlike team names, logos, and player nicknames, stadium features are far less sought after marks by sports organizations. However, some of these distinct stadium features are so deeply ingrained into the history and culture of a team that they have immense potential to help a sports team grow economically and within the community.
ANALYSIS
History & Framework Under Lanham Act
Trademarks play a crucial role in safeguarding brand identity, and its history is closely tied to how businesses today operate and thrive in consumer-driven markets.[9] During a period of medieval trade, the seller-merchant relationship flourished due to the ability of producers to replicate goods.[10] Demand for such goods created a reliability on that source for continued exchanges and, naturally, continued quality. Id. To maintain confidence in an exchange, sellers during this time used unique symbols and markings which allowed buyers to attribute the quality of a product to a single producer. Id. This facilitated mutually-beneficial relationships between consumers and producers (the same way that consumers today can be confident a pair of Nike Air Force 1s will be the same quality and style of shoe the next time they purchase a pair).
Initially, in the United States, the framers of the Constitution decided to leave trademark protection largely to the states.[11] However, in an effort to align American intellectual property law with these international treaties, along with responding to the advent of global corporations and a quickly-broadening consumer market, the United States passed the Trademark Act of 1946, or the Lanham Act.[12] The Act provides for a national system of trademark registration and protects owners of federally registered marks against infringement. Id.
Along with several other benefits, federal trademark registration creates rights throughout the entire United States and its territories rather than simply where the use in commerce occurs.[13] It also creates a presumption of validity in defending the mark in enforcement actions and provides for nationwide priority over all others who might seek to adopt the registration. Id.
The Lanham Act
Codified in 15 U.S.C. §§1051, the Lanham Act is the legal framework governing trademarks and trade dress in the United States.[14] The term “trademark” is defined under the Lanham Act as “any work, name, symbol, or device or any combination thereof used by any person to identify and distinguish their goods from those manufactured or sold by others, and to indicate the source of the goods.”[15] Trade dress refers to the distinctive, non-functional elements and overall appearance of a product or service that represents its source.[16] This can include the design, packaging, and even the ambiance of a business. Id. Both trademark and trade dress protection seek to prevent consumer confusion by preserving the distinctiveness of a product’s or service’s presentation in the marketplace.[17]
To qualify for trademark protection under the Lanham Act, a mark must be (1) used in commerce and (2) distinctive.[18] Distinctiveness is classified into four types: arbitrary or fanciful, suggestive, descriptive, and generic.[19] Generic terms are not eligible for trademark protection because they include words or symbols that communicate the product or service being offered. For instance, the terms “email” or “modem” would be generic.[20] Granting their exclusive use to a single producer would seriously hinder competition in that market by preventing competitors from adequately describing their product. Id. Word marks that are arbitrary, fanciful, or suggestive are held to be inherently distinctive.[21] Fanciful marks are the strongest marks because they are entirely made-up terms. Id. Well-known examples of fanciful marks include “Exxon,” “Kodak,” “Pepsi,” and “Clorox.” Id. These terms are clearly inherently distinctive because they were adopted for the purpose of functioning as a trademark. Id. Similarly, arbitrary marks use common words in uncommon ways.[22] These marks are inherently distinctive because they use words in a way that has no connection to the definition of the words themselves. Id. For example, the trademark for the name “Apple” for personal computers or “Camel” in connection with cigarettes fit this category. While “Apple” could not be registered as a trademark in the agricultural sector, it does not describe any aspect of computers and therefore qualifies as an arbitrary mark. Id.
Moreover, suggestive marks subtly hint at the nature of the product or service, requiring consumers to use their imagination to connect the mark to the good. Id. For example, consider “Airbus” or the sunscreen brand “Coppertone.” By suggesting, and not directly describing, to a consumer that use of this product will help facilitate a tan, the mark qualifies as a suggestive one and is treated as inherently distinctive. Id.
Rather than alluding to the goods or services provided like suggestive marks do, descriptive marks are not deemed to have inherent distinctiveness because they immediately give the consumer an idea of what the goods or services are. Id. These types of marks require secondary acquired meaning. Only when an appreciable number of consumers associate the mark with a single source can descriptive marks satisfy the distinctiveness requirement of trademark qualification. Id.
The difference between suggestive and descriptive marks can be slight, and is a common topic of litigation in trademark infringement actions. In Zatarain’s Inc. v. Oak Grove Smokehouse, Inc., Zatarain’s alleged that Oak Grove infringed its trademark: “Fish Fri.”[23] Zatarain’s maintained that their use was suggestive.[24] However, Oak Grove defended their use of the term by alleging that “fish fry” is a merely descriptive term identifying a class of food used to fry fish.[25] The court agreed with Oak Grove’s interpretation of the marks as descriptive and required a showing of secondary meaning. After weighing several factors to determine whether the descriptive marks had acquired secondary meaning – such as the amount and manner of advertising, volume of sales, and length and manner of use – the court found that the promotional effectiveness in altering the meaning of the terms to the consuming public was met.[26] The Court focused on Zatarain’s presentation of consumer surveys showing that local consumers associated the term “Fish Fri” with Zatarain’s brand. Id. The court focused not on the extent of the promotional efforts, but their effectiveness in altering the meaning of the term to the consuming public. Id. While the court held that Oak Grove was not enjoined from using the term fish fry in its purely descriptive sense, it held that the mark “Fish Fri” had acquired distinctiveness through secondary meaning and was a valid trademark. Id.
Like descriptive word marks, geographical terms, which are typically not trademarkable, can become protectable under the Lanham Act if they acquire secondary meaning – or when the public readily associates the name with a brand, rather than the location.[27] For instance, “Philadelphia Cream Cheese” is an example of a geographically descriptive trademark that has become distinctive through secondary meaning.” Id. While Philadelphia is not on its own trademarkable, the mark has been used so widely and for such a long time that the public has grown to attribute it to cream cheese. Id. Because of its acquired distinctiveness through secondary meaning, the word Philadelphia has been adopted by the USPTO on its principal register.[28]
Like trademarks, to qualify for trade dress protection under the Lanham Act the trade dress must be used in commerce, distinctive, but also non-functional.[29] For a trade dress to be inherently distinctive, it must have an “unusual and memorable nature” that is “conceptually separate from the product of services.”[30] However, a trade dress that does not fit this definition can qualify under federal law if it has acquired secondary meaning in the public mind.[31] The test is whether the primary feature of the product in the eyes of the public is to identify the source of the product. Id. In Conopco, INC. v. Cosmair, Inc., 49 F. Supp. 2d 242, 257 (S.D.N.Y. 1999), a lawsuit involving Calvin Klein’s “Eternity” perfume, Calvin Klein sought federal trademark registration on a line of perfume bottles.[32] In a suit seeking injunctive relief to prevent a Cosmair from infringing its trade dress, the court held that the Eternity line of perfume had not acquired the sufficient level of secondary meaning in the public mind. Id. The court balanced the weight of the evidence which showed that the bottle’s trade dress was quite similar to others on the market and not particularly distinctive in the fragrance industry.[33] Further, the court took into consideration weak survey-results demonstrating that only twenty-one percent of participants were able to correctly associate the bottle with Calvin Kline. Id. While Calvin Klein ultimately was ultimately unable to make a showing of secondary meaning, sports teams around the world have significant and recognizable stadium features that would qualify under this court’s test.
Trademarks in the Context of Sports
Similar to companies like Zatarain’s, Apple, Coppertone, and countless others, sports teams and entities have long recognized the value of trademark protection by strategically employing trademarks to safeguard and profit off iconic logos and team names.[34] Trademarking team names and logos is commonplace in the realm of sports. Id. For instance, the “Golden State Warriors” acts as a trademarked business name and serves as an identifying feature of the services they provide.[35] Like “Philadelphia Cream Cheese,” the Golden State Warriors, and essentially every other sports team, are permitted to trademark their geographically-tied names because the public has grown to attribute the name with the source – the team. Id. Likewise, sports organizations have long sought trademark protection for their team logos. For instance, the “NY” logo, synonymous with the New York Yankees, is one of the most iconic symbols in baseball.[36] The symbol is not merely a combination of letters; rather, it symbolizes the complex history and prestige associated with the Yankees’ brand.[37] With the exclusive right to the commercial use of these marks, it is clear to see the value trademarks provide sports teams. Not only can organizations profit off of the sale of their marks, trademarks like these also play a pivotal role in cultivating a team’s identity and fostering a connection with fans. While qualification for these types of trademarks (team names and logos) is typically a very straightforward process,[38] and almost every team has taken advantage of this right, attaining the exclusive commercial right to elements like chants, physical structures, and business nicknames is much less common.[39]
Chants, Physical Structures, and Nicknames
A chant is typically a rhythmic and repetitive vocalization used in a group setting. Chants are commonly associated with events, protests, sports, or cultural activities where a collective group of people express a shared sentiment or message.[40] Moreover, chants are often participatory, with individuals joining in the repetition of specific words or phrases.[41] These features distinguish chants from slogans, which are widely recognized as trademarkable – if they qualify under the use in commerce and distinctiveness requirements explained above – due to their concise and memorable phrases used in marketing a specific brand.[42] However, a chant can also obtain trademark protection if it is used as a distinctive identifier associated with a single source. Id. While the lyrics and fixed performance of a chant may only be eligible under copyright law, chants with identifiable titles can achieve trademark protection if the term has acquired secondary meaning in the minds of the public – associating the title of the chant to the brand, product, or service.[43] For instance, in 2008, Barack Obama’s presidential campaign trademarked the chant “Yes We Can.”[44] While it began as a rallying cry from proponents of President Obama and his campaign, it acquired distinctiveness and became a recognizable feature of President Obama’s political campaign. Id. Moreover, the campaign committee sought to protect the title of the chant in a commercial setting, including merchandise such as T-shirts and posters.[45] The chant satisfied the use in commerce and distinctiveness prongs for qualification as a trademark and it demonstrates how fan generated chants can be used by the subjects of those chants to obtain economic advantages and build a shared culture amongst supporters. Id.
Another less common feature protectable under trade dress standards are physical structures. Typically, businesses seeking to qualify elements under trade dress standards outlined in the Lanham Act look to protect elements like product packaging, color schemes, or overall design aesthetics.[46] However, nothing in the Lanham Act prevents businesses from qualifying non-functional, distinctive physical structures that serve as an identifier of the source of the goods or services. In fact, several businesses have done just that. For example, McDonald’s successfully argued that their iconic golden arches were distinctive and non-functional, serving to identify and distinguish its restaurants from its competitors.[47] McDonalds sought protection of these physical structures to protect its overall brand image and identity and prevent competitors from mimicking their distinctive elements in a way that could potentially confuse consumers about the source of the goods or services. Id. This showcases that, while less common than seeking trade dress protection for elements of a business-like color scheme or architectural layout or design, physical structures that fit the qualification standards under the Lanham Act can qualify as valid trade dress.
Moreover, a nickname can be protectable as a trademark.[48] A nickname, when used consistently and extensively in commerce, can acquire distinctiveness and become strongly associated with a particular brand, product, or service. Id. While it is common to see individuals seek trademark protection for the nicknames they are presented by fans – e.g. Taylor Swift’s acquisition of trademark protection over “Swifties” to refer to her fan base allowing her to control the commercial use of the term in connection with various goods and services[49] – it is much less common for businesses themselves to seek trademark qualification of informal or affectionate nicknames for their brands. However, it does occur. One notable example again comes from McDonalds, which has successfully trademarked the colloquial nickname ‘MickyDs,’ ensuring the exclusive rights to this moniker.[50] In a similar vein, Starbucks had sought federal trademark protection for the nickname ‘Starbies.’[51] While this attempt was eventually abandoned by the company, it highlights the importance of securing exclusive rights to these identifiers. Id. Doing so allows brands to build closer connections with their consumers while preventing competitors from capitalizing on the familiarity and positive associations built by these catchy nicknames.
APPLICATION
As demonstrated above, less common trademarked features like chants, physical structures, and nicknames have been recognized as qualifying under the Lanham Act outside the context of sports. Following the lead of the business who have capitalized on the opportunity to trademark these less popular modes of trademark and trade dress, sports teams can and should seek protection for their unique stadium features. By applying three distinct examples to the Lanham Act’s use in commerce and distinctiveness requirements, it becomes clear that chants, like the Minnesota Vikings’ “Skol;” physical structures, like the Los Angeles Angels “Big A;” and fan generated nicknames like Green Bay’s “Frozen Tundra” are valid forms of trademark and trade dress under the Lanham Act.
The “Skol” Chant
The “Skol” chant of the Minnesota Vikings not only fulfills the use in commerce requirement under the Lanham Act but also exhibits fanciful and arbitrary distinctiveness. The rhythmic clapping choreography and the unique title “Skol” demonstrate the chant’s fanciful quality, as it is entirely invented and has no inherent connection to football or the Minnesota Vikings. Because there is a built association between the fanciful title “Skol” and the Minnesota Vikings organization, the title for the Viking’s iconic chant qualifies as inherently distinctive. Further, commercially, the chant is already incorporated in a myriad of team-related merchandise, promotional materials, and broadcasts. Moreover, the Vikings’ decision to trademark the “Skol” chant aligns with the broader trend seen in non-sports contexts. Much like Obama’s iconic campaign slogan “Yes We Can,” the “Skol” chant encapsulates the spirit and identity of the Vikings. Trademarking the chant not only safeguards it against unauthorized use but it also allows the team to control its commercial exploitation. Like President Obama’s trademark of his popular chant helped engage his supporters and build his campaign, the Vikings can leverage the trademarked chant to solidify fan loyalty and enhance their brand identity.
The “Big A”
Likewise, the “Big A” at the Los Angeles Angels’ stadium satisfies the Lanham Act’s use in commerce, distinctiveness, and non-functional prerequisites. By being a consistent feature in merchandise, advertising, and various other commercial contexts, the use in commerce requirement is met. As a form of trade dress, its distinctiveness lies in the secondary meaning it has acquired. Unlike in Conopco, INC. v. Cosmair, in which the court determined Calvin Klien’s trades dress had not acquired secondary meaning in the public eye, the iconic A-frame, adorned with a halo, symbolizes victories and serves as a visual representation of the Angels. Over time, this distinctive visual element has become synonymous with the team in the minds of the public, achieving secondary meaning. By seeking trade dress protection of the “Big A,” the Angels can maintain control over its exclusive use in commercial ventures, reinforcing its unique and recognizable status as a symbol of the team’s identity. This strategic move would mirror iconic brands like McDonald’s, which protected its distinctive arches through trade dress. Similar to how the arches are inseparable from the McDonald’s brand, the “Big A” has become an integral symbol for the Angels, with both entities relying on distinctiveness through secondary meaning and non-functionality. By protecting this non-functional, ornamental symbol, the “Big A” not only reinforces the connection between the team and its iconic structure but showcases the broader applicability of trade dress protection in safeguarding the non-functional and distinctive elements that hold significant brand value.
“The Frozen Tundra”
Finally, Green Bay’s nickname for Lambeau Field exhibits descriptive distinctiveness, and therefore requires secondary meaning to qualify for protection under the Lanham Act, as it directly reflects the stadium’s open-roof plan and harsh winter conditions. Through the extensive use and association with the team, the nickname has acquired secondary meaning. Fans and the public now exclusively associate the “Frozen Tundra” with Lambeau Field and the Green Bay Packers. Commercially, the nickname is incorporated into various team-related merchandise, broadcasts, and promotional material. By seeking trademark protection, the Green Bay Packers can solidify their exclusive rights to the commercial use of “Frozen Tundra,” preserving its unique association with the team and leveraging its marketability as a distinctive stadium feature. This strategic move parallels the protection of other fan-generated nicknames like “Swifties” for Taylor Swift’s fan base. By trademarking the nickname, the Packers not only prevent unauthorized commercial use but also enhance the marketability of “Frozen Tundra.” Much like Taylor Swift embraced the term “Swifties” to create a sense of community among her fans, the Packers can capitalize on the marketability of “Frozen Tundra” to strengthen the bond with their fan base and create a unique identity in the sports landscape.
RECOMMENDATIONS
Registering a mark under the Lanham Act and obtaining national recognition of a mark gives a business the exclusive right to profit off of the commercial use of the mark.[52] With this privilege, businesses need to carefully manage their enforcement strategies and commercial implementations of their marks to ensure the exclusive rights are benefiting their business. While there are many ways companies can ensure they are getting the most out of their trademarks, these three strategies can be useful to consider for a team that has recently acquired the mark to a stadium feature.
Strategic Enforcement and Community Building
Strategic enforcement of trademarks requires a delicate balance between protecting intellectual property and fostering community engagement. Continuing with the examples illustrated above, the Minnesota Vikings’ trademarked “Skol” chant serves as a case study for this delicate balancing act. While a large organization’s monopoly over the commercial use of a shared cultural phrase can sometimes create animosity within the community, the Vikings could avoid this conflict by strategically collaborating with local businesses to create a symbiotic relationship, allowing these entities to incorporate the chant into their products or promotions. This approach not only generates goodwill within the community but also amplifies the reach of the mark, leaning into the shared cultural significance of the chant.
For instance, consider a scenario where the Vikings decided to license the “Skol” chant to local breweries. This collaboration could take the form of a licensing agreement, allowing these breweries to create specialty beers named after the chant. By licensing the “Skol” chant, the Vikings not only extend their brand into the local craft beer scene but also foster a sense of community pride as fans enjoy the chant-inspired beverages. This collaborative approach transforms the trademark into a cultural touchstone, reinforcing the team’s connection with its fan base while strategically expanding its presence in diverse commercial contexts.
This multifaceted strategy exemplifies the potential of creating licensing arrangements as a tool for strategic enforcement and community building. It goes beyond traditional enforcement strategies, such as cease-and-desist letters, by actively fostering positive relationships with local businesses. This approach not only protects the trademark, but also transforms it into a dynamic, community-driven asset that contributes to both the team’s identity and the local economy.
In contrast to this hypothetical approach by the Vikings, consider the case of Starbucks, who in the early 2000s earned a reputation for taking legal action against small, locally owned coffee shops that used names or terms similar to those trademarked by Starbucks.[53] While Starbucks aimed to protect its brand from potential dilution and consumer confusion, this approach generated negative sentiment in some communities. Id. While the Starbucks brand persisted, this aggressive enforcement strategy led to accusations of corporate bullying and sparked public outcry. Id. This backlash illustrates the delicate balance businesses must strike between protecting their intellectual property and maintaining positive community relations.
By embracing a community-centric strategy, the Vikings, and other sports teams, can position their trademarked stadium features as a unifying force, reinforcing fan loyalty while strategically enforcing trademark rights when necessary to protect against misuse that could dilute the mark’s distinctiveness.
Regular Trademark Audits and Monitoring
Additionally, establishing internal protocols for regular trademark audits and monitoring is a crucial practice for sports teams aiming to safeguard their trade dress or trademarks, such as distinctive stadium features. This involves systematic reviews and assessments to ensure continuous commercial use, identify potential threats or misuse, and promptly address any issues that may arise. By using the Los Angeles Angels’ “Big A” as an example for how this would operate in practice, the importance of implementing these protocols becomes evident.
For the Los Angeles Angels, monitoring efforts would involve scrutinizing the marketplace to detect any unauthorized use or potential dilution of the mark. Instituting these procedures enables the team to proactively manage its trade dress, ensuring the iconic “Big A” remains a protected and exclusive symbol of the Angels’ brand identity. Conducting oversight meetings with internal officials within sports organizations can ensure the team is on the same page, or cognizant of their approach to handling misappropriation. While monitoring for unauthorized use is paramount, sports teams must also balance the pros and cons of enforcing against small, local businesses.
Regular organizational meetings with officers of sports teams allows for the team’s decision makers to discuss and foresee an economic utilization of the trademark in commerce. By carefully considering the context and impact, teams can make informed decisions on when and how to enforce their trademark rights (if they choose to), fostering a harmonious relationship with the community while safeguarding their valuable trade dress. Regular organizational meetings and trademark monitoring thus not only protect against infringement but also enable teams to navigate the complex landscape of enforcing trademarks within their local spheres.
Preventing Abandonment Through Discontinued Use
Abandonment through discontinued use is a significant occurrence in trademark law, referring to a trademark owner’s loss of exclusive rights when the owner ceases using the mark without any intention of resuming[54]. Analyzing real-world examples provides deeper insights into the risks and consequences associated with discontinued use. Moreover, doing so acts as a cautionary tale to sports teams who do not wish to lose protection and allows them to take affirmative actions to ensure abandonment of their marks does not occur.
Consider the case of the “Bud Bowl,” a marketing phenomenon during the 1980s and 1990s where Anheuser-Busch featured bottles of Budweiser and Bud Light playing a football game in Super Bowl commercials.[55] As time went on, Anheuser-Busch made the strategic decision to discontinue the Bud Bowl campaign. In trademark law, the principle of continuous and active use is vital for maintaining a mark’s protected status. The Bud Bowl, although once a cultural touchstone, lost its relevance and distinctiveness over time due to discontinued use. This abandonment highlights the need for sports organizations, like the teams using distinctive chants, physical structures, or fan-generated nicknames, to actively and consistently promote their marks in the marketplace. Without such ongoing efforts, brands risk losing their protected status, potentially leading to unintended consequences for the brand’s identity and cultural significance.
For sports teams seeking to maintain the strength and recognition of their trademarks, implementing proactive strategies is essential. One effective approach involves consistent and diverse marketing efforts to ensure ongoing commercial use of the mark. Take, for instance, the Green Bay Packers and their “Frozen Tundra” nickname. As established in the earlier section, the nickname is trademarkable. However, the team should employ a comprehensive marketing strategy, including merchandise integration, promotional materials, and broadcasts, to continuously showcase the mark in various contexts. This approach not only reinforces the association between the mark and the team but also strengthens its distinctiveness in the competitive sports landscape.
Moreover, engaging with the fan base directly through social media campaigns, events, and interactive experiences like using the trademark on the jumbotron during games enhances fan loyalty while ensuring continuous use and recognition. This strategy, combining commercial visibility and fan engagement, is a powerful tool for sports teams aiming to fortify their trademarks and ensure they remain qualified under the Lanham Act and do not become abandoned.
CONCLUSION
This paper illustrates that safeguarding distinctive stadium features is permitted under the Lanham Act. From the “Skol” chant to the “Big A” and the fan-generated “Frozen Tundra,” these features embody protectable trademarks and trade dress elements. As sports teams embark on the journey of trademark protection, considerations like strategic enforcement, community engagement, economic considerations, and preventative measures against abandonment become pivotal. By embracing these recommendations, teams can not only fortify their legal standing but also cultivate connections with their communities, elevating the significance of these distinctive features in a rich sports culture.
[1] Anthony Broome, What’s the ‘Skol’ chant? Origins of the newest Vikings tradition (2018).
[2] Rhett Bollinger, Big A still standing proud, 55 years later (MLB 2021).
[3] Albert R. Hunt, How Green Bay Got Its ‘Frozen Tundra’ (Bloomberg 2014).
[4] Robert Lewis, Lambeau Field (Britannica 2023).
[5] Lev Zetlin, Stadium (Britannica 2023).
[6] Sport Trademarks: Everything You Need to Know (Upcounsel 2020).
[7] Stadium Development: The Importance of Fan Experience (NIFTY 2023).
[8] Igor Demcak, The Role of Trademarks in Sports: How athletes and teams protect their brands (trama 2023).
[9] Deven R. Desai, From Trademarks to Brands, 64 Fla. L. Rev. 981, 986 (2012).
[10] A History of Trademarks: From the Ancient World to the 19th Century (World Intellectual Property Organization).
[11] Zvi S. Rosen, Federal Trademark Law: From Its Beginnings (ABA 2019).
[12] 15 U.S.C. §§ 1051 et. seq.
[13] USPTO, Why register your trademark?
[14] 15 U.S.C. §§ 1051 et. seq.
[15] 15 U.S.C. §1127
[16] 15 U.S.C. §1125(a)
[17] Trade Dress: Everything You Need to Know (Upcounsel 2020).
[18] 15 U.S.C. 1052
[19] Trademark Strength (International Trademark Association 2020).
[20] Generic Terms Legally Excluded From Trademark Protection (Justia).
[21] Distinctive Trademark (Legal Information Institute).
[22] Trademark Strength (International Trademark Association 2020).
[23] Zatarains, Inc. v. Oak Grove Smokehouse, Inc. 698 F.2d 786, 788 (5th Cir. 1983).
[24] Zatarains, Inc., at 790
[25] Id. at 788
[26] Id. at 795
[27] Robert Brauneis, Geographic Trademarks and the Protection of Competitor Communication, 96 TMR 1, 28 (2006).
[28] Id. at 29
[29] 15 U.S.C. §1125(a).
[30] Trade Dress Under the Law: what inherently distinctive means (Justia).
[31] Trade Dress Under the Law: how to show secondary meaning in trade dress (Justia).
[32] Id. at 245
[33] Id. at 250
[34] Igor Demcak, The Role of Trademarks in Sports: How athletes and teams protect their brands (2023).
[35] Golden State Warriors Trademarks (Gerben IP 2023).
[36] William C. Bishop, The New York Yankees as an American Cultural Icon, 1940-1970 (2014).
[37] Id. at 129
[38] USPTO, Trademark Process: An overview of a trademark application and maintenance process.
[39] USPTO, Trademark Scope of Protection.
[40] Gemma Perry, Rhythmic Chanting and Mystical States across Traditions 3 (PubMed 2021).
[41] Id. at 2
[42] Trademark a Slogan: Everything You Need to Know (Upcounsel 2020).
[43] See Conopco, INC. v. Cosmair, Inc. 49 F. Supp. 2d 242, 257 (S.D.N.Y. 1999).
[44] Adam Hodges, ‘Yes, We Can’: The Social Life of a Political Slogan 359 (Carnegie Mellon University 2014).
[45] Id. at 362
[46] Trade Dress Under the Law (Justia).
[47] McDonald’s Trademarks (Gerben IP 2023).
[48] Steve Vondran, Can You Trademark Your Sports Nickname? (2014).
[49] Brittany Hodak, Taylor Swift’s New Trademarks: What They Mean (And Don’t Mean) For #Swifties (2017).
[50] Mickey D’s Trademark Details Status Registered and Renewed (Justia).
[51] Starbies Trademark Detains Status Abandones (Justia).
[52] 15 U.S.C. § 1051
[53] Ryan Gile, Starbucks suing another small coffee shop over logo (2007).
[54] 15 U.S.C. §1127
[55] David Bourne, Closing Shot: Bud’s big game (Sports Business Journal 2019).
