Football season is upon us, and fans of the Seattle Seahawks were no doubt celebrating the thrilling 12-10 victory over the Miami Dolphins during their first game of the season on Sunday, September 11, 2016. Seattle fans, who have been referred to as "The 12th Man" since the 1980s, can also celebrate the team's ability to continue using the term for another five years.
The Seahawks' deal
The Seahawks have reached a new trademark licensing deal with Texas A&M University, the owner of a federal trademark registration for "12th Man," and have reportedly agreed to pay $140,000 to use the mark for five years in the Pacific Northwest. The deal includes an $18,000 annual royalty and a $10,000 annual payment to help with A&M's enforcement and policing efforts surrounding the trademark. The Seahawks will also stop using the 12th Man mark on their Ring of Honor and have agreed not to use the term on social media.
The deal arises out of a 2005 trademark infringement lawsuit that A&M brought against the NFL team for its use of the 12th Man mark. At the time, the parties settled the suit with the Seahawks paying an initial lump sum of $100,000 and annual payments of $5,000, with the contract renewed in 2011 for another five years.
Previous "12th Man" licensing deals
The Seahawks, however, are not the only team to have faced A&M's objections over the mark. Both the Chicago Bears and Buffalo Bills were reportedly asked to stop using the "12th Man" mark, with the Bills ultimately negotiating a license to use the mark on their stadium for a one-time fee of $5,000. A&M most recently filed a lawsuit against the Indianapolis Colts in 2015 that was settled after the Colts agreed to stop using the mark. The Aggies also report addressing more than 550 cases of infringement since they obtained their trademark registration in 1990.
The story behind the university's nickname for its fans, however, dates back much earlier to 1922, when the Aggies were facing off against the favored Centre College Praying Colonels and were losing player after player to injuries on the field. Worried about his shrinking bench of players, Coach Dana Bible summoned E. King Gill, a squad player and the first "12th Man," from the stands to suit up under the bleachers, wearing the uniform of one of the players injured in the first quarter. Gill never played in the game, and the Aggies wound up winning 22-14, but it was the image of Gill, the last man standing on the sidelines, ready to play, that produced the story and legend of the 12th Man at Kyle Field.
It is easy to see the appeal of the mark for football teams. In fact, in Canada, where 12 players are allowed on the field, the fans are commonly referred to as "the 13th Man," and in Australia, they are "the 19th Man," with 18 players on the field. (In the U.S., both professional and college football teams have 11 players on the field.)
The stricter terms of the Seahawks' latest deal, however, reflect A&M's mounting efforts to develop brand recognition and enforce their rights to the mark, at least in the U.S. In 2014 alone, the university changed its athletics program website from aggieathletics.com to 12thman.com, erected a 12-foot-tall statue of Gill at the stadium, registered @12thMan on Twitter and Instagram, and began flying a "12th Man" flag as part of the university's pre-game activities.
The Seahawks, meanwhile, have transitioned to using "12" and "12s," obtaining trademark registrations for "12," "The 12s," "Spirit of 12," and "We Are 12," among others.
The Seahawks' licensing deal with A&M raises interesting questions about the realistic applications of a geographic limitation on a member of the National Football League, and also whether licensing a trademark to different football teams upholds the policy rationale of protecting trademarks as a source indicator or badge of origin for consumers. But these questions may soon become moot altogether if the Seahawks' latest deal is any indicator of the Aggies' growing brand protection efforts and a trend of third-party movement away from the mark.
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