Decisions · Opposition No. 91242556
Major League Baseball Players Association v. Michael P. Chisena
Opposition No. 91242556 · Decided 2023-04-12 · Opposition
What happened
The Board sustained the MLBPA’s opposition and refused registration of Michael Chisena’s ALL RISE mark for t-shirts and other clothing, finding that MLBPA licensees sold ALL RISE apparel referencing New York Yankees star Aaron Judge from June 2017 — 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
ALL RISE (standard characters, Serial No. 87528414)
Clothing, namely, t-shirts, shirts, shorts, pants, sweatshirts, sweatpants, jackets, jerseys, athletic uniforms, and caps (Class 25; intent-to-use)
Opposer's mark
ALL RISE and related common-law 'Judge Marks' (pleaded as ALL RISE, 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
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…
Opposition No. 91240180 · 2023-04-12 · HERE COMES THE JUDGE (standard characters, Serial No. 87528440) v. HERE COMES THE JUDGE and related common-law 'Judge Marks' (pleaded as JUDGE, alone and with other terms) used on licensed Aaron Judge apparel
Major League Baseball Players Association and Aaron Judge v. Michael P. Chisena
The Board sustained the MLBPA’s and Aaron Judge’s joint opposition and refused registration of Michael Chisena’s gavel-and-scales-of-justice-over-baseball-field design mark for t-shirts and…
Opposition No. 91243244 · 2023-04-12 · Design mark: a gavel and the scales of justice, each end supporting a baseball, superimposed over the outline of a baseball field (Serial No. 87643089) v. Common-law judicial symbols and terminology -- gavel, courthouse and scales-of-justice designs with JUDGE, HERE COMES THE JUDGE and ALL RISE -- used on licensed Aaron Judge apparel
Made in Nature, LLC v. Pharmavite LLC
The Board sustained Made in Nature’s opposition and refused registration of Pharmavite’s NATURE MADE mark for Class 30 foods such as cereal bars, grain-based food bars, crackers, bakery…
Opposition No. 91223352 · 2022-06-15 · NATURE MADE (standard characters) v. MADE IN NATURE (standard characters and design forms); ORGANIC MADE IN NATURE (13 registrations, plus common-law MADE IN NATURE rights)
Made in Nature, LLC v. Pharmavite LLC
The Board sustained Made in Nature’s opposition and refused registration of Pharmavite’s NATURE MADE mark for Class 29 foods such as soy-based food bars, fruit-based meal replacement bars…
Opposition No. 91223683 · 2022-06-15 · NATURE MADE (standard characters) v. MADE IN NATURE (standard characters and design forms); ORGANIC MADE IN NATURE (13 registrations, plus common-law MADE IN NATURE rights)
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.
Who checked this
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