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Every once in a while, something happens that is truly stranger than fiction.  The Seattle Seahawks’ efforts to be granted a Federal trademark registration for the number ’12’ definitely fits the bill.  That’s right, Seattle wants a trademark for ’12.’  No qualifiers.  No adjectives.  Just ’12.’

The Seahawks, an NFL Football franchise, have apparently been on quite the all-out blitz to reap the benefit of the team’s greatly increased brand recognition in the national public eye, due to its success in recent years that includes a Super Bowl Championship in 2014 (along with appearing in this year’s Super Bowl), by seeking Federal trademark registration for words and phrases that have become popularly associated with the team.  To date, the Seahawks have filed 24 trademark applications in the past 15 months.  For comparisons sake, the Green Bay Packers have filed just 36 applications over the last 40 years and the New England Patriots, Seattle’s opponent in this year’s upcoming Super Bowl, have applied for just two trademarks in the same time span.  Besides the number ’12,’ the Seahawks have also submitted trademark applications for the phrase ‘Go Hawks’ and the word ‘Boom’ (the Seahawks already have a registered trademark for ‘Legion of Boom,’ the moniker bestowed upon their dominant defensive backfield).  The franchise’s desire to trademark ’12’ undoubtedly arises out of their rowdy, boisterous fanbase (whose ability to generate noise at home games is already legendary) being nicknamed ‘the 12th Man’ and sometimes ‘the 12s.’

The Seahawks’ campaign to gain control of various words and phrases that have been associated with its brand has not been limited to merely submitting trademark registrations, but also has included aggressive attempts to quell any other use of these words and phrases, including use of ’12.’  Enter the ‘Hunger Games’ franchise.  When Lions Gate Entertainment, the company that has produced the ‘Hunger Games’ films, filed a trademark application for ‘District 12,’ the Seahawks petitioned the USPTO for a stay in order to gain time to formally oppose the filing.

Instead of the standard 'Cease and Desist' Letter, the Seahawks send Richard Sherman.

Instead of the standard ‘Cease and Desist’ Letter, the Seahawks send Richard Sherman.

For those of you who have been living under a rock for the last several years (or just don’t like movie franchises based off popular young adult dystopian science fiction novels), the ‘Hunger Games’ novel and films is set in the fictional country of Panem, which is subdivided into districts, with District 12 being the home of Katniss Everdeen (or is it Can’t-Miss???), the franchise’s protagonist.  So to sum up, District 12 is a fictional location with nothing to do with football, football fans, or the Seahawks themselves (unless you want to argue that the actual ‘Hunger Games’ themselves qualify as a sporting contest. . .or that the Seahawks see themselves as the Mockingjay). Nevertheless, the attempt to trademark this use of the number ’12’ from a work of fiction was apparently too much for the Seahawks to tolerate as they seek total trademark control of a numeral.

Multi-Million Dollar Media Franchises are not the only ones that have come into conflict with the Seahawks as a result of its trademark strategy.  The Seahawks have also battled their own fans, local businesses and even a former player:

-Former Seahawks kicker Norm Johnson and his son, Jordan, filed a trademark request for “12 Nation” which Jordan claims he came up with as a brand idea to represent area fans.  The Seahawks filed a formal opposition to the idea, which caused a surprised Jordan to withdraw his application since he didn’t have the financial resources to battle the Seahawks’ legal team

-Chris Johnson, longtime Seahawks fan and former vice president of publicity of the team’s booster club, had filed a state trademark registration in Washington for use of the term ’12’s’ (which he claimed he coined 8 years ago), which he uses to sell t-shirts and other products.  The Seahawks’ federal registration of the same term would arguably supersede his own trademark and he has filed for time to challenge it.

-Heritage Distilling Company, located just across the bay from Seattle in Gig Harbor, sought to trademark the name ‘Batch No. 12’ which they produce whiskey and vodka under (the label uses a font and color-scheme not too dissimilar from what the Seahawks have used).  The Seahawks have challenged it, claiming that consumers will mistakenly associate the alcohol products with the team.  The owners claim used the name ‘Batch No. 12’ because it took 12 attempts to perfect the recipes.

-The Seahawks have also challenged trademark applications for “Beware of Hawks,” “Lady 12s” and “Legion of 12.”

However, despite the apparent “David and Goliath” nature of these disputes, the Seahawks have also run up against their own fair share of opposition and criticism due to their aggressive strategy:

-Back in 2006 when the Seahawks first started using the term “12th Man” as a moniker for its fans, the team was sued by Texas A&M University, who has long owned a trademark for the same phrase to describe its fans.  Both sides ended up settling, with the Seahawks agreeing to pay an annual $5000 license fees to use the “12 man” in  pretty limited circumstances. The Seahawks are forbidden from selling any merchandise featuring the term, but are still allowed to raise a flag at the beginning of each home game and call it the “12th Man” flag, but the flag can only have the number ’12.’  This setback explains why the team has been relentless in pursuit of a trademark for the number ’12.’

-The USPTO has already turned down two of the Seahawks’ applications for the number ’12’ in general.  One was because it was similar to a previous trademark owned by a NASCAR team, the other was due to another trademark owned by a hotel.  Eyebrows have also been raised about the team’s application to trademark ’12’ in the team’s jeresy font, which is pretty similar to those of other NFL jerseys (including the one worn by New England Patriots QB Tom Brady).

-The team’s attempt to receive a trademark for “Go Hawks” has been halted due to opposition filings from the NBA’s Atlanta Hawks and the NHL’s Chicago Blackhawks.  It also has drawn the ire of University of Iowa, whose sports teams play as the Hawkeyes, with University President Sally Mason remarking, “Our fans were yelling ‘Go Hawks’ before the Seahawks even existed!”

-The Seahawks’ application to trademark ‘boom’ was suspended last month by the USPTO due to concerns that it might be confused with other brand names.

-The Seahawks have also received a fair amount of public derision, especially for trying to trademark ’12’ and ‘boom,’  with several news outlets publishing articles on the topic (including VICE Sports under the title The Seattle Seahawks Want to Trademark The Number 12, Let’s Laugh At Them).  Mark Cuban, the often-spoken owner of the Dallas Mavericks, posted one such article on Twitter with the one-word scoff “Seriously?”

So, while it appears that the Seahawks are bound and determined to trademark as many of the elements that have become associated with their team in recent years as possible, regardless if they have to do so through registration or intimidation of other potential contrary rights-holders, they will not be able to do so unopposed.

But do they have a chance of succeeding, especially in regards to trademarking the number ’12?’  The answer, which will be undoubtedly surprising to some, is yes.  Remember, potentially anything can be a trademark, be it a logo, word, phrase, or even a sound.  Additionally, the Seahawks are hardly trademark pioneers, as numerous numbers (if you’ll pardon the pun) have already been registered as trademarks by the USPTO, including 747 by Boeing and 501 by Levi Strauss (a non-comprehensive list of other recognizable numbers that are registered as trademarks can be found here).

That’s not to say the Seahawks being granted a trademark for ’12’ is unavoidable.  Numerous other businesses and individuals are already using marks that make use of ’12,’  (more than what is detailed above) and likely will try to oppose the team’s application.  Furthermore, the USPTO will be taking a serious look at how granting a trademark for ’12’ may cause confusion or be similar to other pre-existing trademarks.

Finally, the Seahawks will still need to show that they’ve fulfilled the necessary distinctiveness requirements for a trademark.  While we haven’t discussed it in detail on this blog (yet), a trademark needs to meet a certain threshold of distinctiveness in order to be protected under law.  Generally, when the USPTO or the courts consider whether a mark is distinctive, it tries to place it in one of four categories (in order from least distinctive to most): generic, descriptive, suggestive, and arbitrary.  ‘Generic’ marks are never trademark-able, ‘descriptive’ marks require secondary meaning before it can be granted trademark status (i.e. proof that the mark is associated in the minds of consumers in the target market with your brand), while ‘suggestive’ and ‘arbitrary’ marks are always distinctive enough to receive trademark status.  If I had to venture a guess, the Seahawks’ use of ’12’ to as a mark for their football team and fans of it would probably fall between being deemed ‘descriptive’ or ‘suggestive’ with probably a heavy lean towards being descriptive, given that their application is just for ’12’ itself, without any modifiers.  If that’s the case, the Seahawks will have to show that their use of 12 has secondary meaning within the marketplace that causes consumers to associate ’12’ with the Seahawks.  That probably won’t be that high of hurdle to clear.  There has already been plenty of press about how the Seahawks fans call themselves ’12’s’ and the other ways the team has honored its fanbase (such as hoisting the ’12’ flag), to the extent that many non-Seahawks fans are familiar with and aware of the term.

Shocking as it may seem that someone would actually try to trademark ‘boom’ and ’12,’ it is easy to understand why the Seahawks have been so active.  Trademarks are valuable assets of any business, as well as a potential source of revenue in their own right (it’s no surprise that some fans have tried to gain a trademark in certain phrases associated with the Seahawks just so they can sell t-shirts).  The Seahawks are clearly aware of this, and want to make sure that they are exclusively able to control and profit from their brand.  Ironically, given how trademarks can serve to capture and embody consumer good will, the Seahawks may be willing to give up part of that good will since they’ve shown qualms about confronting fans, local businesses or even former players (not to mention book/film franchises) and even endure public mockery in their quest to broaden their trademark portfolio.

P.S. It would appear that the Seahawks’ ‘trademark mania’ has also caught on with its current players. Star Running Back Marshawn Lynch already owns a trademark for “Beast Mode” and starting Quarterback Russell Wilson has submitted applications for “Dangeruss Wilson,” “Why Not You,” “No Time 2 Sleep” and other phrases. Marshawn clearly had the better choice.  No word yet whether the New England Patriots will attempt to trademark ‘Deflategate.’

P.P.S. It’s also worth noting that Seattle’s hated divisional rival, the San Francisco 49ers (not to be confused with this team), also own several trademarks that are numbers, for obvious reasons.