MLBPA Files Opposition at TTAB over ‘Here Comes the Judge’ Trademark Application

Over the last year and a half, one of the biggest stories in the sport of baseball has been the play of New York Yankees outfielder Aaron Judge. In his August 2016 debut, Judge was only one of two rookies on the Yankees roster to hit their first home runs at their first Major League Baseball career at-bats. In 2017, Judge would become the first MLB rookie to ever win the Home Run Derby outright and broke Mark McGwire’s record for most home runs by a player in his rookie season. On April 16th of this year, Judge became the fastest player in MLB history to reach 60 career home runs, doing so in his 197th career MLB game.

The meteoric rise of Aaron Judge as a young superstar in the MLB has also led to the creation of some interesting catchphrases which reference the judicial nature of the player’s name. “All Rise” and “Here Comes the Judge” are two such references made by announcers and fans alike when Aaron Judge steps up to the batter’s box. The use of this language in connection with Judge has even been incorporated into ESPN’s well-known “This Is SportsCenter” ad campaign.

On March 21st, the Major League Baseball Players Association (MLBPA) filed a formal notice of opposition at the Trademark Trial and Appeal Board (TTAB) to challenge a federal trademark application filed by Michael P. Chisena of Garden City, NY. The trademark application, U.S. Trademark Application No. 87528440, seeks to protect the use of the standard character mark “HERE COMES THE JUDGE” in commerce on clothing including T-shirts, jerseys, athletic uniforms and caps.

The formal opposition filed by the MLBPA challenges the ‘440 trademark application on multiple grounds under Trademark Act including grounds for priority and likelihood of confusion, dilution by blurring, false suggestion of connection with a person, and consisting of a person’s name without written consent from that person. MLBPA’s opposition notes that there’s no issue of priority as any date of first use upon which Chisena can rely is after the date that the MLBPA and Judge first used and acquired rights in the Judge name as a mark.

On February 21st, a month before the MLBPA filed its formal notice of opposition with the TTAB on the “HERE COMES THE JUDGE” mark, the TTAB granted a request to extend the MLBPA’s time to oppose another trademark application filed by Chisena through May 23rd of this year. This opposition targets U.S. Trademark Application No. 87528414, which would protect the use of the standard character mark “ALL RISE” in commerce on similar styles of clothing. Interestingly, the TTAB has also granted extensions of time to oppose this mark to a Patricia Judge, that extension also extending to May 23rd. Although there’s no identifying information in the official extension issued by the TTAB, Patricia is the name of Aaron Judge’s mother and this party is being represented by counsel headquartered in California a few hours away from the city where Judge was born and spent his childhood.

Given the value of merchandise sales related to Aaron Judge, it’s no wonder why the MLBPA would be policing these trademarks closely. After his win in the 2017 Home Run Derby, sales of Aaron Judge’s All-Star Game practice jersey doubled; these jerseys retailed for nearly $130 each. By the end of the 2017 MLB season, Aaron Judge jersey sales broke the record for most sales of any jersey during that player’s rookie year, besting rookie jersey sales for Kris Bryant and Anthony Rizzo, both of the Chicago Cubs. Economic analysis published by Forbes indicates that Judge is literally the most valuable player in baseball, driving the most revenue for his team among all MLB players when analyzing revenues generated through on-field performance, off-field performance (including TV ratings and merchandise) and the player’s ability to generate earned media time.

Trademark enforcement is no small matter for professional sports teams, especially among the MLB’s most valuable franchises. In September 2016, MLB and the Chicago Cubs filed a complaint in district court seeking ex parte seizure orders for law enforcement to seize counterfeit merchandise being sold outside of Wrigley Stadium. That year, the same one in which the Cubs finally won the World Series after a 108-year drought, the Cubs filed 49 formal notices of opposition at the TTAB from the beginning of 2016 through the month of October.