Trademarking Phrases: SDSU's Aztec Shops Laying Claim To 'I Believe That We Will Win!'

ALISON ST. JOHN: You're listening to KPBS Midday Edition, I am Alison St. John, in for Maureen Cavanaugh. You may be familiar with the chant: [ CROWD CHANTING: "I Believe that we will win!"! ] ALISON ST. JOHN: That is "I Believe that we will win!". That chant is about to be possibly trademarked. Aztec shops, a nonprofit corporation at San Diego State University has filed two trademarked the phrase which it has printed on T-shirts, caps, sweatshirts, and other items for sale. The only problem is, a lot of other people use this phrase. It was heard worldwide during the World Cup, and in fact the Aztecs ask about team fans were not the first use it. The chant originated in the Naval Academy in the 1990s. Here to talk about the copyright, and whether SDSU has a good chance of actually trademarking this phrase is Art Neill, professor at California Western School of Law. He founded the new media rights program, which provides free legal assistance and advice about intellectual property law. Thank you so much for joining us. ART NEILL: Glad to be here, Alison. ALISON ST. JOHN: It seems like a long shot two trademarked this chant, but Nike, after all trademarked "Just Do It." How do you think a phrase like this is trademarked, or protectable? ART NEILL: It may seem like a long shot, but we are at the very last stages. The trademark is going to go on the official Gazette, which means that it will be within thirty days of July 22, it will be owned by Aztec Limited unless it is opposed at the trademark office. What is important here, is the phrase "I Believe that we will win!" is to be specifically associated with the source. The trademark office right now is saying that it might be specifically associated with Aztec Limited, and specifically associated with the Aztecs. But there are some big question marks, as you mentioned. This phrase has become ubiquitous. I have been out there watching the World Cup games and I think a lot of people I have connected with also know the phrase as the cheer for the US men's national team this year. When a phrase becomes so ubiquitous, so generic even, can it be appropriated by a private entity? ALISON ST. JOHN: You heard this, what was your reaction? Did you think it would be a long shot, or did you think it would work? ART NEILL: I thought it would be a long shot. The more I looked into it, the more I thought it was a long shot for two reasons. Number one, it is a ubiquitous cheer. The other part, the hallmark of a trademarked is that it is a word, a phrase, a slogan, a logo. It is specifically identified with the source. When you think about brown fizzy water, specifically from Coca-Cola, you associate that brown fizzy water with Coca-Cola, not necessarily with Pepsi-Cola. My question with this, the people necessarily associate "I Believe that we will win!" with Aztecs specifically? I think that is the big question mark here. If the Aztecs Limited Shop wanted to simply publish the phrase with the Aztec logo, which they have the sole rights to, they could absolutely do that. But there are other teams, not just the Navy where it seems to originated with a cheerleader named Jay Rodriguez, in the 1990s, is also Utah state, there are stories about Harvard, and a lot of other professional teams that have used the phrase as well. ALISON ST. JOHN: And I right in thinking that they had asked for a trademark with the logo, that would have been a stronger application? ART NEILL: Well, they could simply use the phrase with what they already have as a logo. The chant itself, it is important to note that the chant itself "I believe", "we will win" is not what is being trademarked, it is just the slogan ""I Believe that we will win!"." And so, in many ways, everybody feel strongly about their team. Everybody wants their team to win, but is that phrase anything more than a simple feeling of the fan that they want their team to win? Is it something more, somehow associated specifically with the Aztecs? ALISON ST. JOHN: Will it actually go into effect if no one challenges it? So far it has been in the media for a few days, one of the chances no one will challenge it? ART NEILL: The chances that no one will challenge it is low. It looks like eight days ago another entity out of Illinois trying to trademark the entire chant. There are also two other trademark phrases that they are trying to register, "I believe that you will lose," and the "I believe that we have one." I think you might see an entity challenge the Aztecs, but you have to remember even if it is issued and nobody opposes it, down the road it may be difficult to enforce. ALISON ST. JOHN: The real battle comes after July 22, when you start seeing lawsuits with people saying wait a minute. ART NEILL: There will be thirty days after July 22, at the trademark office. There is a pretty broad range of people who can oppose. If you simply want to use the trademark in the generic sense, that is in it sense as a chant it want impinge on your rights to use the trademark in its generic meaning, then you can challenge the trademark. Beyond the thirty days, it could take a variety of forms. SDSU could try to challenge someone's use of the trademark and then a court might actually have to decide whether the trademark is protectable, whether the other party's use is protectable, and it might be a suit by SDSU. Or, it might be a cancellation suit by another party such as the Navy or someone else who believes that they are a prior user. ALISON ST. JOHN: How much is this worth? ART NEILL: That is a good point, there is some precedent here. When I was looking at it, it looks like Texas A&M, there a lot of fun and bizarre trademarks in the world. It looks like Texas A&M has a trademark for the twelfth man. From what I understand, the Seattle Seahawks have gone ahead and licensed that from Texas A&M. ALISON ST. JOHN: Did they have to pay for it? ART NEILL: Seattle is paying, I am not sure how much they are paying, but there are other entities such as a Buffalo Bill's fan website that have actually been pursued by Texas A&M. There is a fifty-five-year-old cancer survivor who runs the website that has been fighting the lawsuit from Texas A&M. There are precedents where universities and entities that are officially licensed merchandisers for universities are being paid by other teams. ALISON ST. JOHN: So it may be worth it for Aztec shops to have the trademark so they can actually allow the people to use it at a cost. ART NEILL: Right, I think part of this is a strategic decision not only to get licensing, but also because with this entity in Illinois, obviously there will be other entities that will try to appropriate this phrase. ALISON ST. JOHN: Are there other presidents you can cite that will give a sense of this? Is this par for the course? Is this out of the ordinary? Is Aztec shops kind of taking a risk here? ART NEILL: As far as the sports world, this is not out of the ordinary. There are strange trademarks in the sports world. You can think of Boise State trying to enforce its trademark on a blue field, where you can think of Anthony Davis, the NBA player trying to enforce his trademark not on a unibrow specifically, but on the "fear the brow" trademark. There has been the patriots eighteen in one season a few years ago, that was a trademark for a time. ALISON ST. JOHN: It could just be for a limited time, and then they decide they can no longer afford to defend it? ART NEILL: Typically a trademark, if you do get it issued, it can last forever. There are ways to meet canceled, challenged, or abandoned. ALISON ST. JOHN: What does trademarking actually mean in terms of protection as a technical term? What does this give them the right to? ART NEILL: In a way, as I said, you could argue that it is limited, in a way. It is really only about the use of the phrase commercially on products. They have only asked for protection on hats, T-shirts, sweatshirts, shirts, a variety of clothing. It is limited in that sense to just clothing. ALISON ST. JOHN: And if you did it, but you did not use the exclamation mark at the end, because I believe the thing that they are actually filing for does have the exclamation mark at the end. How specific does it have to be, before it violates the trademark? ART NEILL: That all depends when you get in front of a court. What they are looking for is a likelihood of confusion. What that means, they will look at did you use the exact same trademark, or did you change it in some way? Even if you change it in some way, they will look at survey evidence, or any other evidence they concede to get the consumers impression, or if they were confused about the source of those goods. ALISON ST. JOHN: It sounds like it is going to be a really difficult one to parse out. Do you think when SDSU shops filed for this originally in 2011, they had no idea that it would become such a big issue. The World Cup has definitely popularized it. perhaps they thought this would be a simple trademark filing. ART NEILL: If you follow the history of this chat back to the 1990s, it is really cool the way it has organically grown and bit picked up, taking out West, and it appears first in Utah state, even. It has organically picked up steam. I think it's really interesting that it has sort of been picked up and passed around the country. To that extent, it is becoming a ubiquitous phrase. This could be very difficult for the Aztecs to enforce their ALISON ST. JOHN: Do you think the Navy's going to come forward as one of the primary challengers? ART NEILL: The Navy could challenge it. There could be some folks who try to challenge it. I think the key thing that undermines this claim is probably how ubiquitous the phrase is, and how commonly used, in many ways it is simply a sentiment, I want my team to win or I believe that my team will win. ALISON ST. JOHN: That is right. It seems like, perhaps if you are at SDSU shops, do you think that they should be gearing up for a big legal battle at this point? ART NEILL: I think at this point the value has grown and grown, and whenever there is value to any kind of intellectual property like this trademark, there will be folks arguing over ownership of the phrase. ALISON ST. JOHN: What is the next thing that we should be watching for? Will there be anything definitive on July 22? ART NEILL: I think it will be that thirty days between July 22 and late August, there will be a chance for members of the public that might be affected, other entities that might have a claim, as what is called a prior user, someone who used the trademark before SDSU. That is the moment where folks might file that opposition and it may take quite a bit longer to sort itself out. ALISON ST. JOHN: In the meantime, we can still chant it with impunity, correct? ART NEILL: Absolutely. My hope is, I think it is a neat chant, and it probably deserves to be in the realm of the public. In a way, it seems to have a organically sprung up from the fans at a Navy game in the 90s. If you want to call it property of anybody, frankly, I would call it the property of the fence. ALISON ST. JOHN: Okay, thank you for filling us in on this one. Thank you. ART NEILL: Thank you so much.