Football fanatics know the ‘12th Man’ as the collective and crazed fan base present at most sporting events. While only eleven players are permitted on the field for each team, the fans serve as the twelfth, an extra piece to stimulate and support the teams. But for Texas A&M University, the ‘12th Man’ is a registered trademark. The University claims the phrase dates back to the 1920’s when E. King Gill was emphatically willing to serve the Texas football team should they need another player from the sidelines. [1] Texas A&M formally had the phrase trademarked in 1990 to cover “entertainment services, namely conducting, organizing and promoting sporting events featuring football, soccer, baseball, softball, basketball, swimming, diving, equestrian, and tennis.” [2]
In November 2015, Texas A&M University sued the Indianapolis Colts in U.S. District Court in Houston for trademark infringement over the NFL team’s use of the ‘12th Man’. [3] The complaint alleged the Colts had been infringing on the trademark since 2006 and attempts to prohibit these activities were unsuccessful. [4] Claims for unfair competition, false designation, and trademark dilution were also brought on the grounds that the Colts use is likely to cause confusion and “dilute and/or tarnish the distinctiveness and fame the school receives” from the trademark. [5] Texas A&M President Michael K. Young has also remarked, “Texas A&M University is the Home of the 12th Man which has brought our fan base national renown.” [6]
However, the Colts claimed that the ‘12th Man’ trademark is utilized for ticket sales and merchandise, and also is a hallmark on their home turf, Lucas Oil Stadium. Its use of “Join the 12th Man” in an email to sell tickets was the impetus for the current litigation. [7]
On February 17th, the parties reached a settlement, although the terms of the agreement were not readily available. [8] However, the day after, the U.S. District Judge dismissed the suit entirely, with Texas A&M agreeing to drop the lawsuit. [9]
Notably, the Seattle Seahawks have also been known to call their fans the ‘12th Man.” Prior to these proceedings, the Seahawks were sued by Texas A&M and thereafter received authorization to license the trademark. [10] The Seahawks are now legally permitted to use the phrase, although they have also developed analogous terms, such as “12,” “the 12,” and “Bring on the 12.” [11] The license is set to expire in June 2016 and an extension is uncertain at this point.
Some commentators express surprise that the University was granted the trademark in the first place, since many other schools and national teams have historically used the phrase. [12] Texas A&M may not have been the initial team to coin the term “12th Man.” [13] However, because Texas A&M now owns the federal trademark, it clearly plans to aggressively protect and pursue all potential infringement.