Decisions · Opposition No. 91240180
Major League Baseball Players Association v. Michael P. Chisena
Opposition No. 91240180 · Decided 2023-04-12 · Opposition
What happened
The Board sustained the MLBPA’s opposition and refused registration of Michael Chisena’s HERE COMES THE JUDGE mark for t-shirts and other clothing, finding that MLBPA licensees sold apparel bearing that slogan — a fan- and media-coined play on New York Yankees star Aaron Judge’s surname — before Chisena’s July 14, 2017 intent-to-use filing, and that his identical-goods apparel would be confused with Judge-authorized merchandise.
The marks
Applicant
HERE COMES THE JUDGE (standard characters, Serial No. 87528440)
Clothing, namely, t-shirts, shirts, shorts, pants, sweatshirts, sweatpants, jackets, jerseys, athletic uniforms, and caps (Class 25; intent-to-use)
Opposer's mark
HERE COMES THE JUDGE and related common-law 'Judge Marks' (pleaded as JUDGE, alone and with other terms) used on licensed Aaron Judge apparel
T-shirts, baseball caps and other athletic apparel sold by MLBPA-approved licensees bearing Aaron Judge-related judicial phrases and symbols (common-law use; no registration pleaded)
How the marks compared
| Dimension | Finding | What the Board said |
|---|---|---|
| appearance | Similar | Applicant’s standard-character mark reproduces the exact wording of the licensed slogan and could be (and was) depicted in navy blue and white, the Yankees' primary colors, increasing similarity. |
| meaning | Similar | Judicial phrasing and imagery understood as a play on Aaron Judge’s judicial-sounding surname — the same connotation carried by Opposers' licensed slogans and symbols. |
| commercial impression | Similar | In the context of sports-fan purchasers and unrestricted trade channels, the Board found the commercial impression ‘unmistakable: it refers to Aaron Judge,’ conveying that the goods emanate from an MLBPA licensee sponsored or approved by Judge. |
The marks are so similar in commercial impression that persons encountering them would likely assume a connection between the parties; the first DuPont factor weighed heavily in favor of confusion.
du Pont factors that bore on the outcome
| # | Factor | Weight | What the Board found |
|---|---|---|---|
| 1 | Similarity of the marks | Dispositive | Commercial impression unmistakably refers to Aaron Judge; weighed heavily in favor of confusion, one of the two ‘key’ factors resolving the case. |
| 2 | Relatedness of the goods or services | Dispositive | Applicant’s clothing is identical in part (t-shirts, shirts, sweatshirts, jerseys, caps) and otherwise complementary to the licensed apparel; the other ‘key’ factor. |
| 3 | Similarity of trade channels | Favored Opposer | Overlapping goods create presumed overlapping channels — sports venues and sporting goods stores serving baseball fans. |
| 4 | Conditions of sale and buyer sophistication | Favored Opposer | Inexpensive casual apparel bought on impulse without great care, increasing confusion. |
| 13 | Any other established fact probative of the effect of use | Neutral | Untimely reply-brief bad-faith argument not weighed, though the record negated Applicant’s good-faith protestations. |
Why this decision is significant
Precedential decision holding that fan- and media-coined celebrity slogans used on union-licensed merchandise are common-law trademarks identifying the athlete as a secondary source, and mapping how personality-merchandising opposers prove priority against opportunistic ITU filers. Leading modern authority on failure-to-function/ornamentation defenses in athlete-merchandise disputes.
Research significance is Trademark Valet's editorial rating of how useful a decision is to practitioners. It is not a statement of precedential weight — that is the separate Precedential field, which comes from the Board.
Related decisions
Major League Baseball Players Association v. Michael P. Chisena
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The original record
Read the opinion and every filing on the Board's own docket. The summary above is our paraphrase, not a quotation from the opinion. The opinion is the authority.
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