Texas A&M has sued the Indianapolis Colts for unauthorized use to its 12th Man trademarks. (Merge)

[Ag_in_TX]

Gents,

 

Be aware that Randolph Duke is a Texas-Auston graduate and a certifiable psychopath. He is obessesed with Texas A&M and wanders the Intenet trying to find homes for his half-baked theories about A&M and it's ownership of the term "12th Man". Go check out www.shaggytexas.com for numerous examples of his lunacy.

 

Why does this crusade consume him? He is a failed attorney (Popnzi schemes) and failed man whose wife left him to marry an Aggie, thus planting the seeds of hatred that lead him to obssess with the Agricultural and Mechanical.

 

He's poured countless hours into these theories. And yet here we are, a few years and tens of thousands of words later, and A&M still owns the trademark. Let's see how many more years of his life he can waste on this.

[OffensivelyPC]

The problem the school seems to have is that they have been telling people their tradition dates back to 1922 when they were down to their last substitute and for his willingness to come to the team's aid that day he was celebrated as the school's "12th Man" ever since.

 

That is the fictitious version that was fabricated for the 1939 radio play that E. King Gill (the individual who came from teh stands, but nobody cared anything about at the time) explains in the 1964 Dallas Morning news article as well as during an on campus speech (linked to the hornsports.com article).

 

The reality is that Gill did come from he stands, but no one noticed and no one cared.

 

Here is the school's 1922 yearbook in which the game is talked about. While the the story mentioned "individual honors for the day were many and high" not one of them went to E. King Gill, the guy the school claims was celebrated and lauded for his contributions that day. If the school's greatest tradition in fact started on the January day in 1922, wouldn't the school's yearbook have mentioned someing, anything, aboutthe "12th Man"? The phrase isn't mentioned anywhere in the school's yearbook that year. http://bookreader.library.tamu.edu/book.php?id=yb1922&getbook=Go#page/n407/mode/2up/search/classic

 

Here is E. King Gill's 1924 senior yearbook picture where his contributions to the school's sports teams are mentioned. Yet again, not a single mention of Gill connected in any way with what the school is claiming to have been a celebrated tradition dating back years before and not a single mention of any 12th Man tradition. http://bookreader.library.tamu.edu/book.php?id=yb1924&getbook=Go#page/n363/mode/2up/search/gill

 

All this makes sense when you take Gill's own explanation that there was no 12th Man tradition that he had heard of at the school prior to the fictionalized 1939 radio play. Gill gave that explanation to an assebled audience of school alumni on the school's campus in 1964. If the school actually had a 12th Man tradition prior to 1939, why did he give some other version of events and wouldn't someone have corrected him?

 

The reality is that the school has fraudulently been promoting a false version of their tradition and how it originated. That would be ok, if the school hadn't carried those fraudulent misrepresentation over to their trademark application and sworn under oath and under penalty of perjury that the 1922 date was the date they started the tradition. There is not a single newspaper database that has any association with any 12th Man tradition, E. King Gill and the year 1922. There is no such record of any sort connecting E. King Gill to the phrase "12th Man" prior to 1939. The 1922 date is a fraudulent fabrication by the school to misrepresent their association with the phrase. And one made under oath under penalty of perjury.

 

The Colts have a great chance of fighting this lawsuit.

This will all certainly go into the legal analysis.  One of the things that you have to prove in a trademark suit is that your use of the trademark would "cause confusion among ordinary consumers as to the source, sponsorship, affiliation, or approval of the goods.".  So for instance, let's say you are hungry and stop at a building with a giant golden "M" on their building.  And under that M it simply says "Drive-thru."  Most normal people would think that is a McDonald's and stop in and order their food.  McDonald's would have a trademark infringement case - and likely would win.  The M is obviously important to McDonald's, you see it practically on every advertisement and McDonald's restaurant.  The person using that M is - intentionally or not - commercially profiting off of that trademark by getting customers interested in purchasing its food unaware of the fact they are walking into a restaurant that is not a McDonald's.

 

I'm an attorney, but I don't practice trademark/copyright infringment, so I don't know the case law on this.  That being said with what I know about the law and how it works, I just don't see how the Colt's use of 12th man in confuses anyone as to what the source, affiliation, or sponsorship of the product.  There is the possibility I suppse that the case law would support the Aggies (and admittedly, property rights cases often have some of the more bizarre rules of law because this country, since its inception, has bent over backwards as if a contortionist to protect property rights - real or intellectual).  

 

But the way I see it, when you see a Colts symbol on an advertisement to buy tickets and it says "Home of the 12th man" i'ts hard to surmise anyone confusing that with the Aggies?  One is a college team and the other is the NFL.  It's just hard to believe anyone would ever confuse the trademark in that fashion.  Maybe people know that the Aggies hold the trademark.  Even then, there's a question of whether the "ordinary" consumer even knows there is a trademark on "12th man" because it's so widely used by football teams, if not officially, then at least unofficially (i.e. at a game, the stadium announcer makes an appreciative statement of all the "12th man" for coming out to support the team).  It's just that common of a term that ordinary people don't hear or see 12th man and think of only the Aggies.

[Macae]

A few corrections and additions to make concerning the information that RandolphDuke has posted.

 

First, in answer to another poster:  Yes Randolph is a Longhorn fan who places a lot of time and focus in trying to attack Texas A&M on any message board that he can find.  Hence the motivation for his postings on this thread.

 

In response to his claim that the 12th Man story was based on a fictionalized 1939 radio play... Randolph is intentionally using incorrect wording in order to try and spin his agenda.  As stated by E. King Gill himself in a 1964 speech, "the school was asked to DRAMATIZE a football incident that would be suitable for radio."  Now Randolph himself has posted the link to this speech and is fully aware of the difference between a "fictionalization" and a "dramatization".  "All the President's Men" was also a dramatization.  That doesn't mean that the movie was based on actual facts and events.  Same thing applies here.  Randolph is simply claiming the play was fictionalized in an intentional attempt to mislead readers on this and other boards.

 

With regards to his claim that E. King Gill stated that "before 1939, he hadn't heard of any 12th Man tradition".  What E, King Gill actually stated according to the link that Randolph himself has previous provided was that prior to 1938 or 39, he hadn't "heard of it MUCH".  No one is disputing that the 12th Man concept didn't take on greater meaning once it became nationally famous following the radio play.  Which does NOT mean that it therefore wasn't already a story and tradition among the A&M student body.

 

Consider the grocery store article from 1925 that Randolph posted.  What he chose not to mention was the statement in that article that "in the rooting section there will be some 2,000 khaki clad cadets, shouting in unison as one man - the Aggie Twelfth Man."  Obviously within three years of the E.King Gill event, the student body was already referring to themselves as the "12th Man."

 

Or consider this picture http://12thman.tamu.edu/images/Band30s.jpg'>http://12thman.tamu.edu/images/Band30s.jpg which shows the Aggie Band spelling out "12th Man" from a halftime performance in the 1930s. Obviously the "12th Man" had a significance well before the stadium "Home of the 12th Man" sign or E. King Gill statue was erected.

 

Finally, Randolph wishes to claim that the A&M trademark is invalid due to his suggestion that A&M lied in their claim that the 12th Man term has been continuously used since 1922.  First, he has no evidence that the term hasn't been used since that time.  We have evidence that it was used to refer to the A&M student body as early as three years after Gill's event.  Second, even if you wish to believe Randolph and assume that the term didn't begin until 1939 or later, it does nothing to invalidate the trademark that A&M holds and therefore it becomes an entirely irrelevant issues from a legal standpoint.

 

Addendum:  It was asked why A&M didn't file for their trademark until 1989.  A lot of that has to do with changes in trademark law that would have made it difficult for A&M to go after people infringing upon the trademark prior to that time.  However changes in trademark law at that time added consideration of the damage of "dilution " of the trademark.  With that change in law, A&M gained the ability to go after teams such as the Seahawks and, yes the Colts as well.  Hence the filing by A&M.  But as previously pointed out by others, unlike a patent, a term doesn't have to be trademarked in order for you to have protection for the term.  A trademark only makes it easier to go after those who are infringing upon the phrase. 

[NoneGiven]

But the way I see it, when you see a Colts symbol on an advertisement to buy tickets and it says "Just Do It" i'ts hard to surmise anyone confusing that with the Nike

[Ag_in_TX]

All joshing aside, Texas A&M registered a trademark on the term "12th Man" in 1990.

 

http://12thman.tamu.edu/downloads/12thManRegistrations.pdf

 

A&M has defended this trademark several times in the intervening decades and has either won or settled (with opposition recognizing A&M's claim) every time, most recently with the Seattle Seahawks. The Seahawks pay for the right to use the term but are forbidden from merchandising it (per their agreement with Texas A&M).

 

As with all trademarks, if you do not defend it, you lose it. Hence, A&M defends the trademark vigorously (since they own it - and merchandise it). A&M tried to get the Indianapois Colts to stop using it or recognize A&M's ownership - the Colts chose not to - so A&M was forced to file suit. To NOT file suit would lead towards A&M losing a valuable trademark which it owns.

 

All the other commentary about what actually happened in 1922 and 1939 and newspaper articles rescued from microfiche is so much window dressing meant to obfuscate the heart of the matter - real lawyers, employed by real NFL football teams like the Seahawks, found no basis in all that and chose to recognize A&M's ownership.

[jmac_48]

Other than a matter of principle,

 

Why would anyone spend hundreds of thousands of dollars, maybe more for lawyers,

when it could be settled with a simple licensing deal at $5000.00/year?

 

I would think Irsay and his people have more important things to be concerned with???

 

(My 2-bits)

[ColtRider]

A few corrections and additions to make concerning the information that RandolphDuke has posted.

 

First, in answer to another poster:  Yes Randolph is a Longhorn fan who places a lot of time and focus in trying to attack Texas A&M on any message board that he can find.  Hence the motivation for his postings on this thread.

 

In response to his claim that the 12th Man story was based on a fictionalized 1939 radio play... Randolph is intentionally using incorrect wording in order to try and spin his agenda.  As stated by E. King Gill himself in a 1964 speech, "the school was asked to DRAMATIZE a football incident that would be suitable for radio."  Now Randolph himself has posted the link to this speech and is fully aware of the difference between a "fictionalization" and a "dramatization".  "All the President's Men" was also a dramatization.  That doesn't mean that the movie was based on actual facts and events.  Same thing applies here.  Randolph is simply claiming the play was fictionalized in an intentional attempt to mislead readers on this and other boards.

 

With regards to his claim that E. King Gill stated that "before 1939, he hadn't heard of any 12th Man tradition".  What E, King Gill actually stated according to the link that Randolph himself has previous provided was that prior to 1938 or 39, he hadn't "heard of it MUCH".  No one is disputing that the 12th Man concept didn't take on greater meaning once it became nationally famous following the radio play.  Which does NOT mean that it therefore wasn't already a story and tradition among the A&M student body.

 

Consider the grocery store article from 1925 that Randolph posted.  What he chose not to mention was the statement in that article that "in the rooting section there will be some 2,000 khaki clad cadets, shouting in unison as one man - the Aggie Twelfth Man."  Obviously within three years of the E.King Gill event, the student body was already referring to themselves as the "12th Man."

 

Or consider this picture http://12thman.tamu.edu/images/Band30s.jpg which shows the Aggie Band spelling out "12th Man" from a halftime performance in the 1930s. Obviously the "12th Man" had a significance well before the stadium "Home of the 12th Man" sign or E. King Gill statue was erected.

 

Finally, Randolph wishes to claim that the A&M trademark is invalid due to his suggestion that A&M lied in their claim that the 12th Man term has been continuously used since 1922.  First, he has no evidence that the term hasn't been used since that time.  We have evidence that it was used to refer to the A&M student body as early as three years after Gill's event.  Second, even if you wish to believe Randolph and assume that the term didn't begin until 1939 or later, it does nothing to invalidate the trademark that A&M holds and therefore it becomes an entirely irrelevant issues from a legal standpoint.

 

Addendum:  It was asked why A&M didn't file for their trademark until 1989.  A lot of that has to do with changes in trademark law that would have made it difficult for A&M to go after people infringing upon the trademark prior to that time.  However changes in trademark law at that time added consideration of the damage of "dilution " of the trademark.  With that change in law, A&M gained the ability to go after teams such as the Seahawks and, yes the Colts as well.  Hence the filing by A&M.  But as previously pointed out by others, unlike a patent, a term doesn't have to be trademarked in order for you to have protection for the term.  A trademark only makes it easier to go after those who are infringing upon the phrase.

This will be my last post on this subject until the matter is resolved by the Colts, TAMU, and anyone else who is involved. I first posted that I was sided on the fence of TAMU using the trademark they own, "12th Man", as a money issue only. To be quite honest, after everything I've read, from several sides, I still view it that way in a watered down version. Here's the question that most people want to know the answer to ...

Why would a university of higher learning that grooms military officers for our Armed Forces be so staunchly set on charging for use of a trademark/defending lawsuits all for it's NCAA football team? That's what the American people see it as from everything I've read. Money. And, I would tend to think it would be by a good majority if given all the facts here.

JMHO!

btw ... thanks to everyone who has contributed to this ongoing saga ...

[Macae]

Why would A&M so staunchly protect its trademark?  For the same reasons that other colleges also have trademarked names, sayings, logos and school colors.

 

The $100,000 that A&M received from Seahawks wasn't the primary objective.  Nor is any money that A&M might receive from the Colts.  The objective is to obtain acknowledgement from those infringing upon the trademark that the term is indeed owned by A&M and to show that A&M is attempting to defend against unlicensed usage of the term, as required by trademark law.  This helps A&M in protecting the term from being used by clothing and merchandise companies.  This is where the big bucks are found and A&M, like any other school, wants to ensure that they get a share of those profits.

 

Along with the money issue, is a desire to protect the uniqueness of the term.  A&M takes great pride in both the history and the current traditions involving the 12th Man term.  If this term was not trademarked, it could be used by numerous college and pro teams around the nation and would no longer stand out as an A&M tradition the way it does now.  

[Randolph Duke]

This will be my last post on this subject until the matter is resolved by the Colts, TAMU, and anyone else who is involved. I first posted that I was sided on the fence of TAMU using the trademark they own, "12th Man", as a money issue only. To be quite honest, after everything I've read, from several sides, I still view it that way in a watered down version. Here's the question that most people want to know the answer to ...

Why would a university of higher learning that grooms military officers for our Armed Forces be so staunchly set on charging for use of a trademark/defending lawsuits all for it's NCAA football team? That's what the American people see it as from everything I've read. Money. And, I would tend to think it would be by a good majority if given all the facts here.

JMHO!

btw ... thanks to everyone who has contributed to this ongoing saga ...

A little bit of context might be helpful.

 

Texas A&M University was founded as the Agricultural and Mechanical College of Texas in 1876 and was decreed to be a branch of the University of Texas from the first day the college opened its door. There were attempts to terminate this relationship around 1915, but they failed and to this day TAMU, although separately managed, constitutionally remains a branch of the University. This has created a classic "little brother/big brother" rivalry.

 

I mentioned earlier that starting in the late 1950s, the Texas A&M football team entered into a program defining stretch of 16 losing seasons in 17 years. At the same time, The Texas Longhorns started on a program defining run of national prominence and multiple national championships. This reinforced the "litle brother/big brother" rivalry. 

 

By the time TAMU's football team began to revive its fortunes in the late 1970s, the alumni and administrators sought to redefine the image of the school. Again, this is when the "12th Man" statue was placed outside their stadium. By the late 1980s, the school had placed enough prominence on the 1939 radio play version of E. King Gill and the 1922 game, they installed the "Home of the 12th Man" letters in their stadium and applied for the trademark. They finally had something they believed defined their program. Today, they cling to the 1939 radio play version of events and inisit it is the true and actual version of events. To do this, they porposely avoid any discussion of the radio play and its role in the legend as well as any mention of E. King Gill's own words explaining how (and when) he became associated with the legend. They guard their trademark with unimaginable zeal because they believe it defines their school.

 

Go back and read the complaint the school filed against the Colts organization. Not a word about the 1939 radio play and not a word about Gill's comments on the tradition, although everyone who has read my postings in this thread would agree that at the very least, the existence of the 1939 fictionalized radio play and Gill's repeated explainations that the tradition actually started with the radio play in 1939 raise important questions that deserve to be answered. Why would the university's lawyers purposely leave out any mention of the 1939 radio play or Gill's words on the legend and claim the entirety of the school's claim is centered on events in 1922? The left those out because they both expose the 1922 claim to be problematic, at the very least.

 

You will find TAMU alumni quite nuanced in their defense of the legend. They rightfully explain sportswriters used the phrase in various instances at least in the late 1920s and early 1930s. But they fail to point out how the sportswriters of the school's use of the phrase after 1922 differs in any way from its use in 1921. It was, as pointed out in Ben Zimmer's 2014 Wall Street Journal article, a generic use of the phrase indistinguishable in any way from the way in which hundreds, if not thousands, of other schools were using the phrase. It was entirely generic. The school and their alumni used to fraudulently claim they originated the phrase in 1922. It was my research showing the use in 1912 by the Univ of Iowa that finally put that lie to rest. In 2012, when definitive proof the school didn't invent the phrase came to light, the most ardent Aggies comically tried to claim they invented "12th Man" and that the ordinal form was different than the numerical form that was Iowa's use of the phrase.

 

Should this litigation proceed, it will be the university's burden to show third party corroboration that the events mentioned in the 1939 radio play actually happened in 1922. As I pointed out, Jinx Tucker, the very sportswriter Gill sat next to in the press box, mentions nothing of Gill in his version of the game. No sportwriter who wrote anything about the 1922 game mentions Gill. The school's 1922 yearbook doesn't mention Gill in connection with the game. Gill's 1924 yearbook picture mentions nothing of Gill in connection with the 1922 game. No school yearbook mentions anything about Gill in connection with the game until well after the 1939 radio play. No Texas newspaper mentions any asociation between Gill and the 1922 game until well after the 1939 radio play. Gill himself says he hadn't heard of any association with his name to any such tradition until the 1939 radio play. All these facts are indisputable yet, in paragraph 7 of last week's complaint, the school's attorneys would have the court believe Gill was inextricably intertwined both with the phrase and with what was the school's greatest tradition commencing in 1922 and continuing in an unbroken fashion to this day. It just doesn't add up.

 

Any mention from any edition of the school's newspaper connecting Gill with the school's supposed tradition between 1922 and 1939 would be helpful. One would think such newspaper clips would have been produced decades ago, yet none has ever seen the light of day. Why not? Because they don't exist. Any example whatsoever of the school connecting Gill with the school's use of the "12th Man" phrase between 1922 and 1939 would be helpful. One would think such marketing or promotional materials would have been produced decades ago, yet none has ever seen the light of day. Why not? Because they don't exist. The best the university has come up with is an undated letter purportedly from "Red Thompson" that unquestionably was written after the 1939 radio play as it was typed using a font that appears not to have been invented until after 1939.

 

As for the TAMU being a university that "grooms military officers for our armed forces," without going into detail as this is not the proper forum, the TAMU corps of cadets is a wholly student organization. The overwhelming majority of the members of the TAMU corps never serve a day in the armed forces. Last I saw, only 42% of the cadets members actually enter the armed forces. That amounts to roughly 200 per year. Out of a university whose current enrollment was over 56,000.

[Nadine]

Good grief what a 

 

Let's just not be the 12th man any more

[Superman]

What the heck is going on in here???

[Dustin]

What the heck is going on in here???

Man idk, but it's very interesting/hilarious.

[Dustin]

Gents,

Be aware that Randolph Duke is a Texas-Auston graduate and a certifiable psychopath. He is obessesed with Texas A&M and wanders the Intenet trying to find homes for his half-baked theories about A&M and it's ownership of the term "12th Man". Go check out www.shaggytexas.com for numerous examples of his lunacy.

Why does this crusade consume him? He is a failed attorney (Popnzi schemes) and failed man whose wife left him to marry an Aggie, thus planting the seeds of hatred that lead him to obssess with the Agricultural and Mechanical.

He's poured countless hours into these theories. And yet here we are, a few years and tens of thousands of words later, and A&M still owns the trademark. Let's see how many more years of his life he can waste on this.

W H E W

H

E

W

[Macae]

Well Randolph did get one thing right.... A&M actively tried to update their image in the 70s.  But it wasn't because of a claimed "little brother" situation.  Instead, it was due to the drastic changes that had occurred at A&M over the decade preceding.  Women were first allowed into the University in the mid 60s and membership in the Corps of Cadets stopped being mandatory during that same time period.  As a result and in an attempt to maintain a link to the vast history of A&M, a focused effort was made to retain and carry on with so many of the unique traditions of A&M's early days. 

 

Randolph claims that A&M "clings to the 1939 radio play version of events and inisit it is the true and actual version of events."  And yet no audio file or script of that radio play is known to exist and no one even knows what was said in that play.  Randolph simply chooses to focus on the dramatization that made A&M's 12th Man more famous, while ignoring the reality that the A&M student body was already referring to itself as the 12th Man well before that radio dramatization ever took place.

 

Randolph suggests that the presentation of the radio play in 1939 has any bearing on A&M's trademark standing or with the lawsuit that was just filed with the courts.  Such simply isn't true.  The radio play and its content is entirely irrelevant to the legal status of the trademark and A&M's ownership.

 

Randolph also states that it will be the university's burden to show third party corroboration that the events mentioned in the 1939 radio play actually happened in 1922.  He is incorrect.  Neither the trademark nor the lawsuit hinge on A&M offering any such "proof".  

 

Randolph also states "they fail to point out how the sportswriters of the school's use of the phrase after 1922 differs in any way from its use in 1921."  No one is claiming that it was used differently after as opposed to before.  What is being claimed is that A&M was using that term to reference their student body and has been doing so consistently since the E. King Gill game in 1922.  And we have evidence that such is indeed the case.  Consider the letter written by Red Thompson, an Aggie Yell Leader in 1922, who explained the origin of the 12th Man:

"I was on the sidelines leading yells when Coach Bible came up to me and told me to go up in the stands and get King Gill, who was in the press box spotting plays for Jinx Tucker of the Waco newspaper.  I ran up the stands, found King and told him that the Coach wanted him and wanted him now.  When we got back to the team [Coach] told King to take off his clothes and change with Hienie Weir.

...Things got better as Sanders got back in the game and King Gill on the bench seemed to give them the strength for one more shot.  The game ended up in a 22 to 14 victory for us...

That night I was on the train going back to College Station and I was still thinking about the game and was thinking about all of the games in which the Cadet Corps have played an important part.  We were always there yelling, praying, singing and sometimes cussing.  Football, baseball, basketball, track - we were always there urging them on.  I wondered that sometime these other teams would need an extra man.  We are always ready, willing and able.  So we will be the Twelfth Man.

On Jan. 5, 1922 school started and at yell practice I put the idea up to the Cadet Corps.  Their response nearly knocked me off the YMCA steps.

So the Twelfth Man was borned.  http://www.goodbullhunting.com/2014/1/27/5348976/12th-man-history-texas-am-aggies-e-king-gill-seattle-seahawks

 

What Randolph fails to understand is that E. King Gill is referred to as the original 12th Man because of the events that occurred in 1922 and his willingness to come down from the stands and play.  But the 12th Man refers to all of the A&M students in the stands and not just to E. King Gill.  That was the case back then and continues to be the case today.

[ABATTBQ11]

Wow. A very interesting read on things concerning the "12th Man". So, in addition to the University of Minnesota, we have Dartmouth, and many other schools using this phrase before 1922. And, after also. What made me a little bit bothered by all of this was TAMU's decision to charge others for its registered trademark after 1990. I think it's cool to claim the mark and own it. Actually to defend it. I have no problem with that. However, to charge for such a generic slogan as this, goes beyond my scope to defense of it. To me, at least, it then becomes a situation about money & lawsuits. That's my problem with this. Just my opinion.

As Yehoodi noted, one off occurrences don't matter much when it comes to trademarks. What really matters is continued use, so even a predating one off occurrence doesn't invalidate a trademark. What RD fails to mention, time and time again everywhere he posts this, is that Texas A&M has a long history of calling its student section the 12th Man outside of yearbooks.

 

The student section is quite often referred to as the 12th Man in school newspaper articles going back to the mid to late twenties. There is a picture from 1930 of the Aggie Band spelling out 12th Man. Lil Munnerlyn wrote "The 12th Man," a song played and sung after Aggie losses, in 1941. The 12th Man Foundation, A&M booster organization, was founded in 1950. In 1985, the student section started waving 12th Man towels. In the early 80's, Jackie Sherrill created the 12th Man kickoff team. All of this predates the trademark. If you want, as Paul Harvey would say, the rest of the story, try here. I can assure you, no team or fan base has been using the term "12th Man" as long and consistently as Texas A&M.

 

It makes sense that Gill wouldn't have heard much about the term until the 30's/40's because who went to College Station or Bryan, TX then? They were railroad stops at most. The students called themselves the 12th Man, and that was about it. Gill also wasn't likely to run into many Aggies because it was a very small military college at the time. The 12th Man tradition, like most at A&M, started off small and gained steam. Gill would have been far removed from the university and the impact of his presence on the field, so he probably wouldn't have heard anything about it.

 

As for the money, that is solely a part of defending your trademark. A&M doesn't need the money, it's just part of a sound legal strategy. If you don't defend a trademark, you start to lose the argument that it is yours to begin with. Let's say Burger King (a) runs into a mom and pop business started in 2014 called Burger King (b). It's pretty successful for a one store chain. Burger King has two options; defend their trademark, or let it go because it's a single store. Let's say they let it go, and another mom and pop place called Burger King © pops up a few states over. They're successful too, but they start a franchise. Burger King decides to move in and protect their trademark this time. Unfortunately for Burger King (a), their new competitor makes the argument that Burger King (a) knew about Burger King (b) and did nothing, therefore it is not equitable for Burger King (a) to go after Burger King (b). If you establish a behavior of letting one entity slide on infringing your trademark, it opens the door for others because you established a history of not protecting it. Now consider that Burger King (a) went after Burger King (b) originally and came to a licensing deal. When Burger King © starts up, Burger King has a history of protecting its trademark to fall back on, as well as the trademark itself. When it comes to licensing, you also can't just let it go for $1 or some trivial amount. That devalues the trademark and your ability to collect if someone continues to use it. Think about it. If the Colts licensed their logo on the cheap, and someone continually used it without permission, then the Colts have to prove how and how much they were damaged by that usage to collect. A good lawyer might come back and say, "You license your logo to everyone else for a dollar, so that's all you've really lost. In reality, we've done you a favor by expanding your brand, and you owe us. Think of all of the tickets you've sold because we push your logo and increase your presence." Now, if their logo was licensed for 20% of sales, they'd be able to argue much more about damages and what they're due. Again, if you don't adequately protect your trademark and attach some kind of meaningful value to it, then you can lose it.

 

When it comes to Texas A&M, the University has to defend the trademark everywhere, or else businesses and randos can simply start selling 12th Man whatever they want outside the stadium on game days. The university also has an interest in it because the booster association is called the 12th Man Foundation (est 1950). If the trademark is allowed to be used anywhere for anything, the 12th Man Foundation name could go up for grabs for anyone as well. Unfortunately, this is where we have come as a litigious society. I don't like it as much as anyone else, but it is what it is.

[ABATTBQ11]

 

 

As for the TAMU being a university that "grooms military officers for our armed forces," without going into detail as this is not the proper forum, the TAMU corps of cadets is a wholly student organization. The overwhelming majority of the members of the TAMU corps never serve a day in the armed forces. Last I saw, only 42% of the cadets members actually enter the armed forces. That amounts to roughly 200 per year. Out of a university whose current enrollment was over 56,000.

Also, as someone who was in the Corps, and has a lot of friends who are commissioned officers after having participated in the Corps, I take some offense at this. A&M is a senior military college, and has been for a very, very long time. Part of the legal requirements for maintaining that designation is having a full time Cadet Corps that is independent of the ROTC program at the school. Legally, it has to be a student organization, anyone pursuing a commission has to be a member, and there is no requirement that anyone else has to join.

 

Also, that 42% is a higher number than just about every other senior military college, of which there are only 6. VMI is higher because they only accept people pursuing commissions. On the whole and as a percentage, A&M's Corps of Cadets cranks out more officers than anyone else except the Academies. Yes, A&M has an enrollment of 56,000, but members of the Corps and those pursuing commissions get all of the advantages of attending an excellent public institution and AAU Tier 1 research university as well as excellent leadership experience and training. Having been in the Corps and gotten a degree from A&M, I can attest to both.

 

Personally, I was on the fence about joining the military out of HS, but my time in the Corps and ROTC convinced me that it wasn't for me. There was simply too much red tape, and I wasn't signing my life away to a bureaucracy. However, I met a lot of people who were the exact opposite. Several of my friends pursued contracts and commissions because of their exposure to the military through the Corps. Hell, my BIL is in the Corps and contracted, and he will commission as and Army LT in the next couple of years. He never even considered Texas A&M or a career in the military until he met me and saw the Corps first hand.

[Randolph Duke]

What the heck is going on in here???

Trust me, now the Texas A&M contingent has shown up, it will get quite comical. They are entertaining, if nothing else.

 

The A&M fans refuse to accept the fact their 12th Man tradition is based on a fictionalized 1939 radio play and didn't actually start after the 1922 football game as they have been told. The Colts' attorneys have the documents, weblinks and the like I posted here and they are aware of the exact same questions I have posed.

 

I hope all this is argued out in court soon. I don't see any way the Colts lose in court.

 

If anyone has any particular questions, PM me and I will respond.

[GoColts8818]

What the heck is going on in here???

a war we didn't start and can't finish...

[bluebombers87]

https://www.nfhs.org/articles/trademark-issues-with-use-of-college-names-logos-mascots/

Interesting article even though it pertains to colleges going after high schools (stay classy). A couple of things to consider when it comes to trademarking:

1 - Confusion of concept: This would be hard to believe but basically TAMU would have to prove that when Cokts fans use the phrase 12th man it's unlikely to be confused with TAMU. Considering it wasn't commonly known to be a "TAMU" thing I doubt anyone from the Midwest would be confusing it with them being this far away.

2 - Dilution of concept: This is in reference to the idea that if anyone can use it, it becomes commonplace. This is probably the strongest argument. However since they allow others to use it for a fee then I'd say it weakens their stance.

3 - Tarnishment of concept: Not likely at all. Colts would likely elevate the image if anything.

Just my two cents. For what it's worth I still think the whole thing is silly and think it's kind of a dirt ball move that universities would do this to high schools.

[Macae]

- it's kind of a dirt ball move that universities would do this to high schools. 

 

The problem is that, with current trademark law, the Universities have no choice.  If they don't defend their trademark against some groups, other groups can then use that as a defense for their own infringement of the trademark.  If universities don't defend their trademark against high schools, they run the risk that they won't be able to protect their trademark from a t-shirt company that also decides to use the trademark term without authorization.

Edited November 20, 2015 by 21isSuperman

[HOZER]

Just my two cents. For what it's worth I still think the whole thing is silly and think it's kind of a dirt ball move that universities would do this to high schools.

Funny you bring that up...one of our local county high schools, McCutcheon High, was threatened with a lawsuit by a certain university because their "Maverick" logo looked too much like their longhorn logo, can you guess who it was?

Yes, University of Texas at Austin!! Being a Texan at heart(born and raised there) and a Longhorn fan, I was absolutely embarrassed and disgusted by their threat.

[jet1968]

Texas A&M football plays Vanderbilt this weekend. I hope Vanderbilt wins. Next weekend they play LSU. I hope LSU embarrasses them.

[Nadine]

I am copyrighting FAN

 

Any team that wants to use that word to refer to the people who cheer them on can pay me

 

[NFLfan]

Finally, Randolph wishes to claim that the A&M trademark is invalid due to his suggestion that A&M lied in their claim that the 12th Man term has been continuously used since 1922. First, he has no evidence that the term hasn't been used since that time. We have evidence that it was used to refer to the A&M student body as early as three years after Gill's event. Second, even if you wish to believe Randolph and assume that the term didn't begin until 1939 or later, it does nothing to invalidate the trademark that A&M holds and therefore it becomes an entirely irrelevant issues from a legal standpoint.

This thread has been interesting to read. I have learned a lot.

When Randolph was going on and on about this, the one question that I kept asking was "How is that relevant?" Whether Texas A&M started using the term in 1922, 1939 or twenty years later, it does not matter. They were smart enough to trademark the term.

As for this being about money, what else is new! Institutions of higher learning are paying head football coaches millions more than they pay the professors who are preparing men and women for the future in more important fields than a football field. They invest more in their stadiums and athletic departments than they do their libraries, labs, etc. So, this is business as usual.

(I am a Stanford fan -- not a fan of any Texas team.)

[ColtRider]

Why would A&M so staunchly protect its trademark?  For the same reasons that other colleges also have trademarked names, sayings, logos and school colors.

 

The $100,000 that A&M received from Seahawks wasn't the primary objective.  Nor is any money that A&M might receive from the Colts.  The objective is to obtain acknowledgement from those infringing upon the trademark that the term is indeed owned by A&M and to show that A&M is attempting to defend against unlicensed usage of the term, as required by trademark law.  This helps A&M in protecting the term from being used by clothing and merchandise companies.  This is where the big bucks are found and A&M, like any other school, wants to ensure that they get a share of those profits.

 

Along with the money issue, is a desire to protect the uniqueness of the term.  A&M takes great pride in both the history and the current traditions involving the 12th Man term.  If this term was not trademarked, it could be used by numerous college and pro teams around the nation and would no longer stand out as an A&M tradition the way it does now.

I know that I stated there would be no more posts from me on this subject. However, for some reason, can't let this go without making one more point here & a question.

Why wouldn't TAMU release the trademark to other pro & sports teams with permission to manufacture and acquire the big money?

It benefits everyone that way. Teams get the slogan & make money. Manufacturers make their money. TAMU makes their HUGE money, and gets to retain & also claim their rights to the trademark while retaining public perception to it. That's the win, win situation in my opinion.

There's no reason why TAMU, other teams (pro & whoever), and manufacturers cannot come to an agreement/contract in order to satisfy everyone.

Has this ever been proposed by the university/teams/manufacturers besides just charging a flat fee to use it? If the ultimate goal is to make money, and more of it, why wouldn't TAMU consider this? Maybe I'm missing something here. Am I way off base with this?

[bluebombers87]

- it's kind of a dirt ball move that universities would do this to high schools.

The problem is that, with current trademark law, the Universities have no choice. If they don't defend their trademark against some groups, other groups can then use that as a defense for their own infringement of the trademark. If universities don't defend their trademark against high schools, they run the risk that they won't be able to protect their trademark from a t-shirt company that also decides to use the trademark term without authorization.

Simple solution. Any team using a trademarked term from any College signs a document stating that college was the original blah blah blah. And you do it immediately not decades down the road.

Everyone wins.

[bluebombers87]

Gents,

Be aware that Randolph Duke is a Texas-Auston graduate and a certifiable psychopath. He is obessesed with Texas A&M and wanders the Intenet trying to find homes for his half-baked theories about A&M and it's ownership of the term "12th Man". Go check out www.shaggytexas.com for numerous examples of his lunacy.

Why does this crusade consume him? He is a failed attorney (Popnzi schemes) and failed man whose wife left him to marry an Aggie, thus planting the seeds of hatred that lead him to obssess with the Agricultural and Mechanical.

He's poured countless hours into these theories. And yet here we are, a few years and tens of thousands of words later, and A&M still owns the trademark. Let's see how many more years of his life he can waste on this.

And how many hours have you wasted following him around?

Right or wrong, he came stating his opinion on the matter (again, right or wrong) on a forum where the topic was already being discussed.

Then you come here and say some pretty disparaging words about the individual in what appears an attempt to discredit him.

Randolph's comments were simply a different interpretation of history (right or wrong). Yours were kind of petty and unnecessary.

[ÅÐØNϧ 1]

BREAKING: Texas A&M has sued the Indianapolis Colts for unauthorized use to its 12th Man trademarks.

— Darren Rovell (@darrenrovell)

November 12, 2015

LOL

 

 

ambulance chasers & Texas A& M   University a marriage made in heaven sneaky & greedy maybe there mascot should be Bernie Madoff.

[ÅÐØNϧ 1]

A little bit of context might be helpful.

 

Texas A&M University was founded as the Agricultural and Mechanical College of Texas in 1876 and was decreed to be a branch of the University of Texas from the first day the college opened its door. There were attempts to terminate this relationship around 1915, but they failed and to this day TAMU, although separately managed, constitutionally remains a branch of the University. This has created a classic "little brother/big brother" rivalry.

 

I mentioned earlier that starting in the late 1950s, the Texas A&M football team entered into a program defining stretch of 16 losing seasons in 17 years. At the same time, The Texas Longhorns started on a program defining run of national prominence and multiple national championships. This reinforced the "litle brother/big brother" rivalry. 

 

By the time TAMU's football team began to revive its fortunes in the late 1970s, the alumni and administrators sought to redefine the image of the school. Again, this is when the "12th Man" statue was placed outside their stadium. By the late 1980s, the school had placed enough prominence on the 1939 radio play version of E. King Gill and the 1922 game, they installed the "Home of the 12th Man" letters in their stadium and applied for the trademark. They finally had something they believed defined their program. Today, they cling to the 1939 radio play version of events and inisit it is the true and actual version of events. To do this, they porposely avoid any discussion of the radio play and its role in the legend as well as any mention of E. King Gill's own words explaining how (and when) he became associated with the legend. They guard their trademark with unimaginable zeal because they believe it defines their school.

 

Go back and read the complaint the school filed against the Colts organization. Not a word about the 1939 radio play and not a word about Gill's comments on the tradition, although everyone who has read my postings in this thread would agree that at the very least, the existence of the 1939 fictionalized radio play and Gill's repeated explainations that the tradition actually started with the radio play in 1939 raise important questions that deserve to be answered. Why would the university's lawyers purposely leave out any mention of the 1939 radio play or Gill's words on the legend and claim the entirety of the school's claim is centered on events in 1922? The left those out because they both expose the 1922 claim to be problematic, at the very least.

 

You will find TAMU alumni quite nuanced in their defense of the legend. They rightfully explain sportswriters used the phrase in various instances at least in the late 1920s and early 1930s. But they fail to point out how the sportswriters of the school's use of the phrase after 1922 differs in any way from its use in 1921. It was, as pointed out in Ben Zimmer's 2014 Wall Street Journal article, a generic use of the phrase indistinguishable in any way from the way in which hundreds, if not thousands, of other schools were using the phrase. It was entirely generic. The school and their alumni used to fraudulently claim they originated the phrase in 1922. It was my research showing the use in 1912 by the Univ of Iowa that finally put that lie to rest. In 2012, when definitive proof the school didn't invent the phrase came to light, the most ardent Aggies comically tried to claim they invented "12th Man" and that the ordinal form was different than the numerical form that was Iowa's use of the phrase.

 

Should this litigation proceed, it will be the university's burden to show third party corroboration that the events mentioned in the 1939 radio play actually happened in 1922. As I pointed out, Jinx Tucker, the very sportswriter Gill sat next to in the press box, mentions nothing of Gill in his version of the game. No sportwriter who wrote anything about the 1922 game mentions Gill. The school's 1922 yearbook doesn't mention Gill in connection with the game. Gill's 1924 yearbook picture mentions nothing of Gill in connection with the 1922 game. No school yearbook mentions anything about Gill in connection with the game until well after the 1939 radio play. No Texas newspaper mentions any asociation between Gill and the 1922 game until well after the 1939 radio play. Gill himself says he hadn't heard of any association with his name to any such tradition until the 1939 radio play. All these facts are indisputable yet, in paragraph 7 of last week's complaint, the school's attorneys would have the court believe Gill was inextricably intertwined both with the phrase and with what was the school's greatest tradition commencing in 1922 and continuing in an unbroken fashion to this day. It just doesn't add up.

 

Any mention from any edition of the school's newspaper connecting Gill with the school's supposed tradition between 1922 and 1939 would be helpful. One would think such newspaper clips would have been produced decades ago, yet none has ever seen the light of day. Why not? Because they don't exist. Any example whatsoever of the school connecting Gill with the school's use of the "12th Man" phrase between 1922 and 1939 would be helpful. One would think such marketing or promotional materials would have been produced decades ago, yet none has ever seen the light of day. Why not? Because they don't exist. The best the university has come up with is an undated letter purportedly from "Red Thompson" that unquestionably was written after the 1939 radio play as it was typed using a font that appears not to have been invented until after 1939.

 

As for the TAMU being a university that "grooms military officers for our armed forces," without going into detail as this is not the proper forum, the TAMU corps of cadets is a wholly student organization. The overwhelming majority of the members of the TAMU corps never serve a day in the armed forces. Last I saw, only 42% of the cadets members actually enter the armed forces. That amounts to roughly 200 per year. Out of a university whose current enrollment was over 56,000.

 

Texas is used to losing to the Colts & all the long winded posts won't change that . 

 

Go Colts

[Macae]

Why wouldn't TAMU release the trademark to other pro & sports teams with permission to manufacture and acquire the big money?

 If the ultimate goal is to make money, and more of it, why wouldn't TAMU consider this? Maybe I'm missing something here. Am I way off base with this?

The ultimate goal is NOT to make money.  The ultimate goal is to protect the uniqueness of the Aggie 12th Man.  Now the school certainly wants to make as much money as possible from those who are selling Aggie merchandise with the 12th Man phrase on it.  In those situations, the school can make money AND promote the Aggie use of the term.  But if they were to simply license the term to any other sports franchises that wanted it.... Yes A&M would make more money, but the phrase would quickly lose its uniqueness and become quite diluted.

 

A&M licensed the term to the Seahawks, not to make money, but as a legal strategy to strengthen their legal claims to the term.  Now that such has been achieved, A&M apparently is not renewing the licensing contract and the Seahawks are being forced to use the "12s" rather than "12th Man".  A&M doesn't want to ever license anyone to sell non-Aggie 12th Man merchandise.  When they choose to do so, it is only going to be for legal reasons, rather than financial ones.

[RomanianColtsFan]

Unbelievable debate about this subject, what a wealth of knowledge!. Wake me up when it's been resolved.

[ABATTBQ11]

This thread has been interesting to read. I have learned a lot.

When Randolph was going on and on about this, the one question that I kept asking was "How is that relevant?" Whether Texas A&M started using the term in 1922, 1939 or twenty years later, it does not matter. They were smart enough to trademark the term.

As for this being about money, what else is new! Institutions of higher learning are paying head football coaches millions more than they pay the professors who are preparing men and women for the future in more important fields than a football field. They invest more in their stadiums and athletic departments than they do their libraries, labs, etc. So, this is business as usual.

(I am a Stanford fan -- not a fan of any Texas team.)

It's not about the money. As stated earlier, it's about maintaining the uniqueness to Texas A&M. If A&M wanted to make money off of it, they would. If they were smart enough to trademark it 25 years ago, you'd think they'd be smart enough to negotiate what would be lucrative licensing deals too. We don't need the money, but we want the tradition of being the 12th Man to be our own.

 

 

As for the investment in Athletic Dept's, that mostly isn't school money when you look at the high level Div I schools. Most of the money put into the Athletic Dept comes from wealthy alumni and endowments, as well as ticket sales and TV revenue from the revenue generating sports. Face value tickets start at around $70 for home games, and with 100,000 seats, an A&M home game brings in at least $7 million. Now, there are a lot of tickets that cost a lot more, so that number is likely somewhere between $8 and $10 million. With 6 home games per year, that's anywhere from $50 to $60 million in revenues from football tickets alone. The SECN also provides somewhere north of $20 million per year in TV revenues for Tier II and Tier III rights. Tier I brings in additional revenues. There are also bowl payouts and merchandise sales, as well as concessions. All told, many AD's brings in a lot of money on their own and pretty much break even when everything is said and done. A&M football actually makes a ton of money that gets used to support other sports, like track and field, swimming, soccer, etc.

[grmasterb]

Update:

 

Check out @markalesia's Tweet: https://twitter.com/markalesia/status/700400685033123841

[RollerColt]

<sarcasm>Welp. I guess we all just got removed from the ring of honor then...</sarcasm.

[SilentHill]

39 minutes ago, grmasterb said:

Update:

 

Check out @markalesia's Tweet: https://twitter.com/markalesia/status/700400685033123841

 

What we can't honor Texas A&M in our ring of honor?

[csmopar]

4 hours ago, grmasterb said:

Update:

 

Check out @markalesia's Tweet: https://twitter.com/markalesia/status/700400685033123841

Can we take the afc championship finalist banner down too please

[grmasterb]

1 hour ago, csmopar said:

Can we take the afc championship finalist banner down too please

Banners. There's two more of those up there (1995 & 2003).

 

I don't care for the division championship banners either. The SB Championship and AFC Championship banners can stay. The other achievements need to be recognized in another way. I might throw up a Super Bowl V banner just to dig at the Baltimore folks, though.

[Blue Swagger]

Our 12th man is better!

[2006Coltsbestever]

2 hours ago, csmopar said:

Can we take the afc championship finalist banner down too please

I personally have no problem with the 2014 AFC Finalist banner because DeflateGate was involved. It's just a reminder of what went down. Other than that I am just for hanging SB Title banners and Conference Title banners. I really don't care about Division banners at all. It's about what a team does in the Playoffs. I would rather be a WildCard team and make the AFC Title Game then win my Division and lose in the 1st Round but yet hanging a Division Title banner is fine with everyone in that case? Making the AFC Title Game is a much better accomplishment IMO.

[2006Coltsbestever]

I'll say this also, nobody will even talk about the 2015 Texans and they won the Division but had they went to the AFC Title Game they would be remembered as a Very Good team that just came short and some people would've even pick them to go the SB next season like they did us this past season.