BU Law Prof: Tom Brady Fumbles Trademark Request

Hey @uspto, with all due respect to @TomBrady…There’s only one #TomTerrific to us. #LGM #Mets pic.twitter.com/CvzWY4hu7Y

— New York Mets (@Mets) June 3, 2019

Here in New England, Tom Brady can pretty much walk on Charles River water, thanks to six Super Bowl rings.

But in New York? He’ll alway be a pariah, as he was reminded this week.

On May 24, Brady’s TEB Capital Management Company filed a request with the US Patent and Trademark Office to trademark the name “Tom Terrific,” since, after all, Tom has been one pretty terrific football player for the New England Patriots. The problem is that the New York Mets long-retired legendary Hall of Fame pitcher Tom Seaver was actually nicknamed “Tom Terrific” during a lengthy career that saw him win 311 games (198 with the Mets).

Naturally, New York sports fans had one word for Brady after learning of his application: Fuhgeddaboutit. “Go back to deflating footballs, you jerk,” one fan told the New York Post. Twitter was equally unkind and even the Mets weighed in.

With so much venom directed at Brady, BU Today couldn’t resist dialing up University trademark expert Stacey Dogan, a School of Law professor of intellectual property and internet law and trademark and copyright law and associate dean for academic affairs. Before entering academia, she worked as a trademark and antitrust lawyer. So this is her game.

And in Dogan’s opinion, Brady fumbled. Big-time.

“I think it should be rejected,” she says of his request to own “Tom Terrific.”

And this is coming from an admitted, though “fairweather,” Patriots fan, she says.

“Tom Seaver, the fact that he was known as ‘Tom Terrific’ doesn’t necessarily mean he had trademark rights to the name ‘Tom Terrific,’ nor does it mean he should have applied for trademark registration for that term,” Dogan says. “But the fact that he was known as ‘Tom Terrific’ should prevent Tom Brady from having a legal right to register the term.”

Since Brady is already known as “TB12,” a nickname and brand that he has trademarked mostly for his health food and wellness products as well as his TB12 Foundation, why does he need a second trademark? According to the two trademark applications filed on his behalf, one would cover collectible trading cards, sports trading cards, and photographs and posters, while the second would cover T-shirts.

News of Brady’s application was first reported by the Gerben Law Firm in Philadelphia, which also posted an audio explanation of the filings (listen to it here).

Dogan says there are two specific sections of the federal law governing trademark registrations that apply in Brady’s case, and both of them should be obstacles in his pursuit of “Tom Terrific.”

Section 2A of the law, she says, focuses on whether a trademark would make a person think of another individual. In other words, if Tom Brady secured “Tom Terrific,” could ordinary people be confused and think that it was referring instead to Tom Seaver. “That would seem to apply in this case,” she says.

And section 2C of the law, Dogan says, “prohibits the registration of a term that consists of or comprises the name of a living person—and that also includes nicknames.”

“I was unaware of Tom Seaver’s nickname,” she says, “but given the fact that among sports fans he has been known by the name, both of those provisions would seem to apply.”

Seaver, who was the 1967 Rookie of the Year and a key cog in the Miracle Mets 1969 World Series win, is 74, and according to a recent New York Times article, suffering from dementia. (Late in Seaver’s career, he played briefly in Boston, making 16 starts for the Red Sox in 1986.)

Dogan says the request from Brady’s company surprised her because his managers may have been thinking about only the marketing angle, but ignored the legal pitfalls.

“The mark will be assigned to a trademark examiner,” she says. “Other parties that might be adversely affected can file opposition. But with or without opposition, I would think the examiner should reject the mark.
I find the whole thing perplexing, as a matter of law and of public relations.”

She’s not the only one. Several former teammates of Seaver’s have spoken out in protest of Brady’s application.

“Maybe it’s the new athlete,” former Met Ed Kranepool says. “Maybe it’s the ‘I’ generation, who can only think about himself. He’s the greatest quarterback who ever lived, and I supported him over the years and any time I’m rooting in football, I’m rooting for Tom Brady. But when you ask me about Tom Terrific and having played behind a guy like [Seaver], there’s only one guy who can be called Tom Terrific and that’s him. When you’re first in line, I think there should only be one of any kind.” Brady “is the second model.”