By: Mark R. Malek

I know that this is breaking news to many, but I am a die-hard Jets fan.  I am still in a period of morning now that the Super Bowl has come and gone.  Worse yet, my N.C. State Wolfpack is not giving me much hope for a decent March, so I am relegated to watching spring training games and, every now and again, I will turn on the NASCAR race.  That is pretty short lived though.  Generally, my three year old will make his way into the room and the conversation will go a bit like this:

Jacob: “What are you watching Daddy?”
Mark: “NASCAR son!”  (please try to imagine pretend southern accent)
Jacob:  “The cars are going fast Daddy.”
Mark: “’’Bout 200 miles per hour boy.” (another fake accent)
Jacob:  “Can we watch Fireman Sam?”
Mark: “Of course.” (accent is gone, just a weak Daddy at this point)

Those of you who are unfamiliar, Fireman Sam is a British cartoon about – you guessed it – a Fireman named Sam.  The story takes place on Pontypandy Island, which is populated by 10 idiots that seem to find their way into trouble every waking minute of the day!

Back to the trademark issue at hand.  One of the proudest days of my life as a Jets fan was when the Jets beat the Patriots and the evil Tom Brady to reach the AFC Championship game.  I went to the local Jets tavern to watch the game with my neighbor, a Pittsburgh Steelers fan (who eventually talked me into going to Pittsburgh to watch the AFC Championship game – see my article about my wonderful experience in Pittsburgh here).  I was absolutely shocked when the Jets pulled out a victory.  I guess Bart Scott, the NY Jets powerful linebacker had something to prove.  He gave the following interview right after the game:

If you did not giggle after that interview, something is seriously wrong with you.  I had just about forgotten the interview until I walked into a restaurant in Pittsburgh and saw some fellow Jets fans.  We all got together, made some noise, and then they looked at some Pittsburgh fans and yelled “CAN’T WAIT!”  That little saying became the mantra of the entire weekend.  Everywhere you saw a Jets fan, you heard “CAN’T WAIT!”  I started searching high and low for a t-shirt or a hat or something that had the now famous interview saying on it.  How could someone miss out on the opportunity to make a few bucks on that?  Put me in line with the rest of the suckers that would have ponied up some cash for that apparel.

According to this article on Yahoo Sports, Bart Scott has filed a trademark application for “Can’t Wait” in connection with “men’s, women’s and children’s apparel.”  This is an “intent to use” application, so my hopes of getting a t-shirt anytime soon should remain minimal.  Below is a copy of the application as filed with the Trademark Office:

Undoubtedly, this application will be rejected.  The reason for the rejection, however, will be because the description of goods and services is way too broad.  The trademark Examiner will likely require an amendment to the description of goods to specify the type of apparel that the mark will be used in connection with.  The next question, however, is will it be enforceable.  Please permit me to provide the typical lawyer answer – maybe!  The law was a bit of a tough transition from engineering from me.  As a civil engineer, the bridge falls or the bridge stands.  Everything is pretty much black and white.  In the legal system, however, we only deal in shades of gray.

Doug Farrar, the author of the article, is a sports writer – and a damn fine one.  With that in mind, however, I really wish he got a technical read of his article before posting it.  The article is riddled with intellectual property inconsistencies.  For example, Doug notes that Scott had trademarked the “Can’t Wait” phrase – actually he has only applied for it.  He has a long way to go before he gets it.  Then Doug notes that NFL Properties would somehow be involved in enforcement.  I do not see why they would unless Scott assigned his rights to them, or if Scott insisted on putting the NFL logo on the shirts.  Lastly, and this one just about killed me – Doug interchangeably uses “copyright” and “trademark.”  These are two distinctly different types of intellectual property.  Copyrights are meant to protect works of art, i.e., novels, sculptures, paintings, music, etc.  Trademarks are meant to be source identifiers, i.e., McDonald’s brand hamburgers, Nike brand shoes, Kleenex brand tissue (yes they still somehow have a trademark).

Here’s the best part about this whole thing.  Just because Bart Scott said it, does not necessarily give him rights to the term “Can’t Wait!” with respect to apparel.  I could have just as easily started selling green t-shirts with the words “Can’t Wait” on them…and nothing else, i.e., no Jets symbol, no NFL logo.  I think that Bart Scott would have been hard pressed to stop me.  His best strategy, and one that would most certainly work, would be to out spend me on litigation….it wouldn’t take much.  Don’t worry Bart, I would have never done that to you.  I sure do hope to see those shirts soon.  Please feel free to send me a case of them.  I’ll wear one to next year’s Super Bowl and cheer my Jets on to a championship!