re: Aggies Sue Indy Colts over use of "12th man"...

If you want a serious answer about the 12th Man trademark, here it is.

The main difference between the dispute with Seattle and the dispute with Indianapolis is that at the time of the Seattle dispute A&M had been lax about policing the 12th Man trademark for quite some time, and failure to police is a valid grounds for a court ruling that the trademark has lost its distinctiveness and therefore the holder loses the rights. The Buffalo Bills, Chicago Bears, Seattle Seahawks, and Indianapolis Colts all used the term during the 1990's.

A term you need to know in this discussion is "Genericide". Essentially it means when a trademark becomes so commonly used throughout the market segment that it loses it's distinctiveness. Products like Thermos, aspirin, and Cellophane used to be trademarked brand names, but became so commonly used as terms to describe their respective products that the trademarks were lost and the terms became public domain. Even a trademark that has been granted "incontestable" status can be lost to genericide.

We are in an era where the 12th Man moniker seems to be making a comeback, lots of teams are trying to use it to grow their brands, as a result, A&M's trademark is at risk of genericide. Circa 2005 when A&M finally sued Seattle after Seattle had ignored dozens of cease and desist requests, since so many other teams were trying to use it, and A&M hadn't been effectively policing, there is a good chance that a court would have ruled that the term had become generic, especially if the other NFL teams using it like Buffalo and Indy had joined Seattle in the fight against A&M.

By striking the deal with Seattle for the $5,000 licensing fee, there was precedent of an NFL franchise worth hundreds of millions of dollars recognizing that A&M owned the trademark, and paying A&M for the right to use it. That made it much more difficult for other teams to challenge A&M's ownership.

The value wasn't in the money, it was in the recognition. Seattle paying A&M essentially proved A&M's ownership of a distinct mark, and gave A&M the ability to now enforce the trademark much more zealously knowing that their ownership is strongly recognized. In return, Seattle got the be the only team in the NFL with permission to use the term, but only in the Pacific Northwest. A&M actually further strengthened ownership of the mark by exerting control over Seattle's use, avoiding the issue of "Naked Licensing" where the licensee can do whatever they want with the trademark so long as they pay the fee. So from a legal standpoint, the licensing agreement with Seattle was actually a pretty huge power play by A&M at a time when their backs were against the wall and they were at risk of losing the mark altogether.

The downside for Seattle comes now, when the licensing agreement expires, and A&M looks unlikely to grant them another one. And they'll have a hard time explaining to a court why they should be able to use mark without A&M's permission now, seeing as how they officially recognized A&M's ownership just 10 years ago, and have been paying A&M for it ever since.

Bottom line is that A&M licensing the trademark to Seattle for the past 10 years, and controlling how and where Seattle can use it, is essentially what gives A&M the ability to enforce its ownership against challengers like the Colts today.