Tuesday, November 13, 2012

WYHA? MLB Strikes Out in Appeal from 2(e)(1) Refusal of HONORARY BAT GIRL for Charity Contest Services

The Board affirmed a Section 2(e)(1) refusal to register the mark HONORARY BAT GIRL, in standard character form, finding it merely descriptive of "conducting a contest relating to cancer awareness." Dictionary definitions, third-party uses, and MLB's own specimen of use convinced the Board that "consumers are accustomed to contests that award winners with the opportunity to be recognized as 'honorary bat girls/boys' and would understand the term HONORARY BAT GIRL to refer to the contest prize awarded by applicant." Would you have appealed? In re Major League Baseball Properties, Inc., Serial No. 77876203 (November 8, 2012) [not precedential].


At 11:15 AM, Anonymous Anonymous said...

I think this is a good decision and the USPTO examiner was smart to maintain this refusal. Because by maintaining this refusal, Little League and other independent professional, nonprofessional and children's baseball and softball leagues should maintain the ability to use the HONORARY BAT GIRL wording to refer to similar contests they may conduct. Had this mark been approved and allowed to register, this wording could become like "SUPERBOWL," "MARCH MADNESS," "ALL STAR GAME," etc. with MLB sending a c&d letter to each league that attempts to offer a charity promotion and uses this wording. I'm not sure this will stop any enforcement efforts by MLB to disallow others from using this wording because MLB may claim the mark has acquired distinctiveness or might rely on common law rights and its unlimited financial resources but this should make enforcement efforts more difficult for MLB and the USPTO can't do anything about MLB's enforcement efforts.


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