'Giants Baseball: Torture.' Can That Phrase Be Trademarked?
It's a phrase fans have taken to in describing a low-scoring team that drove nailbiting supporters insane -- en route to 92 wins and a divisional crown. But is it a phrase Kuiper could trademark and use to turn torture into profit? An attorney SF Weekly contacted has an answer:
Owen Seitel naturally brings up the most pertinent example of a trademarked phrase in the sporting world: Former Los Angeles Lakers coach Pat Riley trademarking the phrase "three-peat" in 1988.
Of course, Seitel notes, these phrases are not one and the same. For one thing, the term "Giants baseball: Torture" has the word "Giants" in it. And you can't trademark that phrase without, say, the Giants' permission. Or, as Seitel puts it, Kuiper "may have to disclaim it or get consent from the trademark owner -- which I assume is the Giants or some entity of the Giants -- to include their mark within his mark."
Of course, someone would have to research whether Kuiper could trademark the phrase "torture" too: "There may be a manufacturer of, say, skatewear, called, like, 'torture,'" Seitel says. "They may be able to block him."
Kuiper would also have to establish that he's utilizing his trademark in connection to peddling "actual goods and services in the marketplace." Saying "Giants baseball: Torture!" after yet another 2-1 victory in which Brian Wilson loads the bases in the ninth does not count.
Of course, just because Kuiper originated the phrase doesn't mean someone else out for a buck can't swoop in and claim he or she is printing T-shirts or pennants emblazoned with the phrase and should be the sole entity permitted to do so. It warrants mentioning that Riley didn't think up the term "three-peat." His player Byron Scott did.
But if Kuiper -- or anyone else -- wanted to trademark the phrase, he or she could file with the U.S. Patent and Trademark Office anytime. Even if commerce hasn't yet commenced, the filer could include an "intent-to-use registration." The T-shirts and banners popping up at AT&T Park could then be subject to cease-and-desist orders. "Really, in order to push someone else off your mark, you need to be actually using it," says Seitel. "It's kind of a first-in-use area of law."
SF Weekly has left messages with the Giants attempting to query if Kuiper has any interest whatsoever in trademarking his popular catchphrase. So far, we haven't heard anything from the broadcaster or the team.
Finally, while it's not his field, Seitel can vouch for the accuracy of Kuiper's label. He was at the Giants game on Friday. And, yes, it was torture.