Yankee Hater Logo, Trademark Law, and Corporate Paranoia

ESPN's Darren Rovell has a great piece on Mike Moorby, a 38-year old financial advisor from New Jersey who created a side business devoted to all things hating the New York Yankees. (Rovell, "The Yankee Hater Biz," ESPN.com, 3/22/2006). I know what you're thinking: Why hasn't anyone come up with this concept before? After-all, who could possibly like the New York Yankees? But I digress. Moorby is a diehard Red Sox fan who thought it would be fun to create a Yankee Hater ("YH") logo.

Moorby's business, Rebel Forces LLP, took off in 2004 when such Red Sox players as Curt Schilling and Kevin Millar started wearing hats with the YH logo. But the fun stopped when Major League Baseball sent him a cease-and-desist letter, and when the Yankees filed an opposition to his trademark application. A hearing before the Trademark Trial and Appeal Board could occur in the coming months. The Yankees claim that consumers are confused by the similarity in logos (even though the logo and colors seem obviously different):

Rovell interviewed two persons for the story, including me. Needless to say, this is a story that I loved being interviewed about:

Two legal experts contacted by ESPN.com, however, say that it's possible Moorby can defeat the almighty Yankees. Winning a trademark case, they say, requires proving either that a certain brand has been compromised or that there is confusion about who is selling the product.

"The Yankees aren't hurt by this," says Marty Schwimmer of Schwimmer Mitchell, a trademark law firm in New York. "Add to that the fact that sports owners have accepted the degradation of their names and logos as part of 'good-natured' tarnishment. It's all part of the game." As evidence, Schwimmer cites colleges that routinely make licensing royalties by allowing their mascot to be demeaned by an opposing school's mascot on merchandise, as, for example, the University of Alabama does when it contracts with a merchandising company in Auburn, Ala., that prints T-shirts featuring 'Aubie' spanking little Alabama elephants.

"This is the classic case of corporate paranoia," says Michael McCann, an assistant professor at the Mississippi College School of Law. "If they try to make the case that consumers are confused as to what is being sold here, that's absurd. You don't even have to be a baseball fan to recognize the difference between a Yankee Hater logo and a Yankees logo."

You'd think the Yankees would have other things to worry about, like their aging pitching staff or how their brand new (yet 32-year old) $50 million center fielder is already hurting, but I guess not.

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