Texas A&M blitzes Indianapolis Colts with trademark infringement lawsuit over 12th Man

By John Suayan | Nov 12, 2015

Texas A&M University has sued the Indianapolis Colts over the 12th Man Mark, recent Houston federal court records show.

TAMU’s lawsuit against the Colts, filed Nov. 12 in the Houston Division of the Southern District of Texas, accuses the NFL franchise of infringing on its United States Trademarks to the 12th Man.

“The defendant’s unauthorized use of the mark 12th Man in connection with its offering of football entertainment services and related products allows the defendant to unfairly receive and enjoy the benefits of goodwill, acceptance, and recognition that the plaintiff has acquired over an extended period in connection with its 12th Man Mark at great labor and expense,” the complaint says.

TAMU asserts it has been using the 12th Man Mark “in connection with sporting events and numerous products and services” since around 1922. School tradition dictates the 12th Man honors E. King Gill, a student who voluntarily suited up for the Aggies during a football game against Centre College.

According to the suit, TAMU registered the 12th Man under U.S. Trademark Numbers 1,612,053; 1,948,306; and 3,354,769.

“Registration No. 1,948,306 expressly covers ‘entertainment services, namely organizing and conducting intercollegiate sporting events’ and Registration No. 3,354,769 more broadly covers ‘entertainment services, namely conducting, organizing and promoting sporting events featuring football, soccer, baseball, softball, basketball, swimming, diving, equestrian, and tennis,’” the original petition says.

“Finally, Registration No. 1,612,053 covers various goods and services listed in multiple classes under the classification system used by the United States Patent and Trademark Office, specifically ‘bumper stickers; post cards and note cards; towels; hats; t-shirts; polo-type shirts; golf shirts; sweaters; shorts; athletic uniforms; and, college scholarship services.’”

The Colts are alleged to have first used the 12th Man Mark during the 2006 NFL season “inside of its stadium,” prompting TAMU to send the team a cease and desist letter a year later. Both parties, the suit explains, were in the process of working on a compromise, but the school later discovered the Colts again infringed on the mark in 2012 and the past summer.

The suit further shows the most recent instance occurred on July 1 when a College Station resident received an email from the Colts soliciting single-game tickets under the tag line “Join the 12th Man”

“The defendant’s unauthorized use of the mark 12th Man in connection with its professional football entertainment services and its various products is likely to cause confusion, or to cause mistake, or to deceive customers and potential customers as to an affiliation, approval, license, endorsement, sponsorship, or other connection with Texas A&M, when none exists,” the suit says.

“The defendant’s unauthorized use of the mark 12th Man in connection with its football entertainment services and related products is likely to dilute and/or tarnish the distinctiveness and fame enjoyed by Texas A&M in the 12th Man Mark, especially in the Houston area and elsewhere in Texas.”

The Colts are the second NFL team to have been hit with a legal complaint over the 12th Man Mark from TAMU. The school sued the Seattle Seahawks in early 2006 only to settle the dispute out of court.

TAMU consequently seeks unspecified monetary damages.

Attorneys John C. Cain, William D. Raman and Steven A. Fleckman of the law firm Fleckman & McGlynn, PLLC in Houston are representing the school.

Houston Division of the Southern District of Texas Case No. 4:15-CV-3331

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