TTAB Rejects “All Rise”, “Here Comes the Judge” and Design Mark On Opposition by Aaron Judge and MLBPA
TTAB rejected an application to register ALL RISE, HERE COMES THE JUDGE and a design mark, finding that MLBPA and Aaron Judge had priority of use of the marks. The 61 page opinion is replete with examples of prior use by Judge, who then exclusively licensed the MLBPA to promote the use.
Applicant, Michael P. Chisena, sought registration of the standard character marks ALL RISE and HERE COMES THE JUDGE, as well as the design mark , all for “clothing, namely, t-shirts, shirts, shorts, pants, sweatshirts, sweatpants, jackets, jerseys, athletic uniforms, and caps” in International Class 25. Opposer Major League Baseball Players Association (the “MLBPA”) filed Notices of Opposition challenging registration of Applicant’s three marks. Judge jointly opposed registration of the design mark. Opposers’ claims are for likelihood of confusion under Section 2(d) of the Lanham Act, false suggestion of connection under Section 2(a), use of a particular living individual’s name without his consent under Section 2(c), and likelihood of dilution by blurring under Section 43(c).
Opposers presented extensive evidence of third-party licensees that paid royalties to use words and designs referring to Judge since August 2016, pre-dating applicants first use in July and October 2017, the board noted. Applicant argued that the prior use did not function as source-indicating trademarks. The TTAB rejected that argument, citing its prior decision in In re: Lizzo LLC, noting that there, although evidence showed that the phrase was used mostly ornamentally, it often referenced references Lizzo and her own music. Similarly, here, the TTAB found "that the consuming public recognizes the subject slogans and symbols carrying judicial connotations as pointing to only one baseball player on one major league team."
The full decsision is at https://ttabvue.uspto.gov/ttabvue/vpno=91240180&pty=OPP&eno=115