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Trademark of the Week: Rally Squirrel -- The War Begins

Trademark of the Week: Rally Squirrel — The War Begins

As if you didn't get enough of the Rally Squirrel last year (I prefer the German "baum ratte," which translates to tree rat), the war over ownership of this phrase is about to begin.

During the MLB playoffs last year, a company called PBR Industries (which, unfortunately, does not appear to have anything to do with Pabst Blue Ribbon or the Professional Bull Riders) filed a trademark application for the phrase "Rally Squirrel." They did this two weeks after a squirrel darted in front of Skip Schumacher during his infamous at-bat in the playoffs. After this bizarre incident, the St. Louis Cardinals completed a historic run through the playoffs to become the World Series Champions.

Unfortunately, a lot of consumers correlate the Cardinals' playoff run with this squirrel and are willing to spend money on Rally Squirrel merchandise. Even today, almost a year after the incident, a 2012 Topps Series 1 Baseball Skip Schumaker Rally Squirrel variation still sells for over $60 on the secondary market.

So, while the phrase "Rally Squirrel" is offensive to some baseball fans (shouldn't we be celebrating the players, the team or the run, and not some trespassing rodent?), it has become worth quite a bit of money.

Well, PBR's "Rally Squirrel" filing was approved by the trademark examiner, and this opened up a 30-day window in which third parties could file an opposition against the mark.

Legal translation: This is how others can object to the mark, typically if they believe the mark is likely to confuse consumers.

The Rally Squirrel's opposition deadline was last week. Just before the opposition window closed, the St. Louis Cardinals requested an extension of time. The Trademark Office granted the extension.

Legal translation: The St. Louis Cardinals might be trying to corner the market on the rally rodent, and the Trademark Office is going to give them additional time in which to decide. The Cardinals haven't filed an opposition yet, but generally if someone asks for an extension of time, an opposition normally follows.

Although PBR Industries beat the St. Louis Cardinals to the Trademark Office (in fact, the Cardinals do not have a "Rally Squirrel" word mark filing), the Cardinals will likely win an opposition. This is because one of the first things people think about when they hear "Rally Squirrel" has to do with the St. Louis Cardinals (whether it is Skip Schumaker's at-bat when that tree rat ran across the field, or the Cardinals' ridiculous run through the World Series, etc.). Therefore, if a company which has no association with the St. Louis Cardinals uses the phrase, consumers may very well assume that company does have  some type of endorsement from, affiliation with or approval from the Cardinals.

And because of this, if the team opposes the PBR Rally Squirrel filing, I expect it'll likely win.

Legal suggestion: And hey, Cardinals, why don't you file your own trademark application on the phrase "Rally Squirrel," too?

It's worth noting that there is yet another trademark application out there, but it's for "Rally Squirrels" -- plural.

Because, although you didn't see it, Rally Rodents apparently work in teams.

This application was filed by an individual named Sean Patrick Sullivan, meaning there is yet another party interested in owning the "Rally Squirrel."

Now, had this "Rally Squirrels" application been approved by its trademark examiner (it's facing some difficulties in view of the "Rally Squirrel" application, so it has not been approved), it would likely have faced a similar opposition -- if it gets that far. In all likelihood, it won't get past PBR's "Rally Squirrel" application. Even if it does, it'll run into the St. Louis Cardinals.

Additionally, there is a hospital in St. Louis (Cardinal Glennon Children's Hospital) that is attempting to trademark the following two squirrel images:


Trademark of the Week: Rally Squirrel -- The War Begins 1

I wonder if the St. Louis Cardinals will also oppose these marks. It's different PR-wise when you go after an unknown corporation, than a children's hospital).

Of note to card collectors, the issues raised here are likely why although Topps has two Rally Squirrel cards (the 2012 Topps Series 1 Skip Schumacher variation and the David Freese Series 2 variation), neither card uses the phrase "Rally Squirrel." Obviously, if Topps did not have concerns about using the phrase "Rally Squirrel," it would have used it on these cards. And it looks like its cautious behavior towards these cards was warranted.

Although, I suspect once the trademark rights do get worked out, we'll see an actual Rally Squirrel rookie card at some point.

Hopefully, on the back will be a good recipe for squirrel pot pie. I hear it's actually really good.

The information provided in Paul Lesko's "Law of Cards" column is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered in the sports industry. This information is not intended to create any legal relationship between Paul Lesko, the Simmons Browder Gianaris Angelides & Barnerd LLC or any attorney and the user. Neither the transmission nor receipt of these website materials will create an attorney-client relationship between the author and the readers.

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Paul Lesko has litigated complex and intellectual property actions for over 18 years. Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid card collector. He's also the author of the novel Gastric Bypass, available for purchase at Amazon. Paul can be found on Twitter @Paul_Lesko and Google+.

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