Trademark Justice for Aaron Judge

By Rob Litowitz

“Here in right field, it’s important you know.
You gotta know how to catch, you gotta know how to throw.” “Right Field,” Music and lyrics by W. Welch

Aaron Judge plays right field for the New York Yankees. Last season, he hit 62 home runs, the most ever by a Yankee. That’s right. More than Maris. More than Ruth. More than Mantle. And certainly more than Horace Clarke (if you get that reference, you, like me, grew up during those dark, joyless days when the once-vaunted pinstriped squad that had accrued World Series rings like our mothers collected S&H Green Stamps had fallen on fallow times, fielding feckless teams that routinely failed to mount any feasible foray into the pennant race, a woeful state of decline that spanned over 10 years, until 1976, when the drought that began after 1964 finally ended.)

Aaron Judge has been a force of nature since he cracked the Yanks’ starting lineup back in 2017. Central casting could not have produced a more fitting figure to play the Yankees’ latest superstar. Tall, graceful at the plate and in the field. dignified, supremely gifted, humble. And, with his magical season of 62 dingers all produced without the stigma of artificial ingredients, a sports hero we not only yearned for, but one we need today during these fractious times.

You’d think that nobody in their right mind would try to obtain federal trademark registrations for slogans like “Here Comes The Judge” and “All Rise” and then claim that they weren’t trying to cash-in on Aaron Judge’s fame. But that’s exactly what one man tried to do. After filing applications to register those phrases and a logo showing a baseball-diamond with a gavel, applicant Michael P. Chisena defended himself by claiming that he cooked up these judicial themed trademarks years before Aaron Judge became a Yankee. Mr. Chisena also claimed that it was just a coincidence that he filed his trademark applications for “Here Comes the Judge” and “All Rise” the same day that Aaron Judge wowed the sports world during the 2017 MLB All Star Game.

Faced with an adversary who seemed intent on channeling the wily ethics of a spitballer, Mr. Judge and his union, the MLBPA had their hands full. Mr. Chisena tossed virtually every pitch one could dream up to put out Judge’s case. Chisena claimed, for example, that he, not Aaron Judge, was the rightful owner of “Here Comes The Judge’ and “All Rise.” Even though Chisena’s trademark application claimed the intent to use those phrases as trademarks on clothing, he argued that they weren’t trademarks when Judge and his licensees did just that. Chisena even argued that consumers wouldn’t associate Aaron Judge with baseball-themed clothing featuring those phrases.

The “ump” for the case was the Trademark Trial and Appeal Board (“TTAB”) of the United States Patent and Trademark Office. Although Major League Baseball this season adopted a pitch-clock aimed at shortening games, the TTAB didn’t get the message. It took 61 pages–one short of Aaron Judge’s Yankees home-run record of 62–to make what was an easy call–that Aaron Judge should be the one to own and register “Judge-themed” trademarks, not someone seeking to profit from the fame and marketing clout of this future Hall Of Famer.

So the jury no longer is out. Order has been restored. The final gavel has come down. And for once, Mudville (and all of baseball) can rejoice. The mighty case did not strike out.

The case is Major League Baseball Players Association and Aaron Judge v. Michael P. Chisena, Opposition Nos. 91240180 (parent) 91242556, 91243244

Quote of the day: “You may glory in a team triumphant, but you fall in love with a team in defeat.”
― Roger Kahn, The Boys of Summer


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