THE TRADEMARK TROLL SAYS: I LOVE MAJOR LEAGUE BASEBALL BUT IT SURE SMACKS OF TRADEMARK EXTORTION

Today is officially the first day of Spring. But the REAL first day of Spring is opening day - of the new major league baseball season. For many folks opening day means another year of heartache as they root for their Cubbies. The Trademark Troll is a die hard Tribe fan. Though he would rather that the Cleveland Indians abandon Chief Wahoo as a trademark. But that is a story for a different day.

The blog site www.thesmokinggun.com reports( March 18th) that lawyers for Major League Baseball have forced a Barak Obama supporter to shut down his website. At this site he was selling baseball styled jerseys emblazoned with the word OBAMA. The jerseys displayed the colors of several major league teams. And the word OBABA appeared on each jersey in typeface quite similar to the typeface used by the major league teams. Some of the jerseys also included a graphic element. In sum: the jerseys evoked the themes of certain major league teams.
Shameful you say? Perfectly legal I might counter. Would anyone seeing these jerseys assume that they were sponsored by MLB? Doubtful. Is this a form of speech protected by the First Amendment? Likely. Under current dilution doctrine are the MLB names, colors and graphic elements famous? Doubtful.

So what do we have here? Yet another example of a brand owner using muscle when the legal doctrine is unclear? Perhaps. But I see it as part of a phenomenon that is causing a backlash against patent law, copyright law AND trademark law. With good reason.

Historically, ideas have been free for all to use. The law would intervene to protect certain expressions of those ideas- technical expressions artistic expressions, or commercial expressions. But the ideas were part of the common good.

Then came the Internet. Wikis, mashups, file sharing, digital sampling, business method patents, Second Life. The line between idea and expression gets ever harder to draw. And rights holders too often succumb to the temptation to control ideas and all expressions of those ideas.
And society responds. With anger and frustration.
So an enterprising entrepreneur folds. A clever means of expressing one's political beliefs is curtailed. And MLB appears to be overreaching.

And when their rights are cut back the rights holders will need to examine their own conduct quite carefully.