Time was that unless you were at the Trademark Expo run by the United States Patent and Trademark Office each year in Washington, it was unlikely you would bump into costumed mascots representing a range of famous trademarks. But today, it seems that even a trip to Wrigley Field will force you to be confronted – quite literally – by a trademark problem.
Rogue mascots are everywhere, and the Cubs have had enough of a dressed-up figure called “Billy Cub.” Because they believe their fans thought that Billy was a sponsored mascot, his actions reflected badly on the Cubs. They have tried to address this in federal court by suing for trademark infringement, unfair competition, dilution and tarnishment of their rights and other grounds.
According to the complaint, Billy (an identity used by several characters allegedly doing the same acts) hangs around the perimeter of 100 year-old Wrigley Field and makes “rude, profane and derogatory remarks and gesticulations to patrons, ticketholders, fans, or other individuals.” These acts “tarnish the Cubs reputation and goodwill.” The Cubs claim that use of a Cubs logo on Billy’s uniform is likely to cause confusion, and if that weren’t bad enough, will make people believe that Billy is actually the Cubs’ official mascot Clark the Cub. (The complaint points out that “unlike Clark the Cub…Billy charges fans ‘tips’ for [photo taking] service”).
Wrigley Field (Photo credit: Wikipedia)
Back on the East Coast, Times Square in Manhattan has been inundated for the last couple years with characters ranging from Elmo to Spider-Man to Dora the Explorer, all of whom make a living by cozying up to roaming tourists and charging for pictures. This has been a topic of great concern to the Times Square businesses, as well as the City of New York. On the one hand, the ACLU is saying that these people are merely conducting lawful First Amendment activity when they dress up in costume and pad about town. The City of New York does not necessarily appear ready to dispute that legal position, but is worried that people walking around anonymously, and in full disguise, especially when there are reports of assaults, need to register themselves to conduct their “business.” A recent report by the Broadway Theater alliance says that New York-area theatergoers are shying away from Broadway because they don’t like the harassment of these characters, though apparently out-of-town tourists are still flocking to the area more than ever.
One difference between the Cubs situation and the Times Square characters is that the Cubs mascot wears a clearly defined team logo. Their actions are also happening outside of the Cubs’ own stadium, where attending baseball fans would be likely to presume an association with the Chicago Cubs baseball team. If the Times Square costumes are purchased from legitimate businesses who license then manufacture, it is very hard — from a trademark standpoint — to say that the characters cannot walk around town and have pictures taken. It would be different if Spider-Man were standing around having photos taken in front of a Broadway theater where a Spider-Man play is being staged. Otherwise, the legal claim will rest on the fact that these costumes are widely recognized trademarks, and that the person in the street will believe these are licensed or authorized by their owners. When that happens, activities performed by the costumed characters will be confused with or attributed to their legal owners.
One of the problems in acting against Times Square characters is a practical one. When you file a lawsuit, do you go around and serve the papers on every individual character you can find crisscrossing Seventh Avenue? The answer may be “yes.” But as we often see when trying to sue street vendors for counterfeiting, good luck ever having them show up in court. And with the only identification being “upon information and belief, defendant appears to look like superhero known as Batman,” there are some challenges.
From a practical standpoint, there’s no question that the Times Square costumed characters know exactly what they’re doing. They are using these characters to draw in the confidence of tourists and after having exploited that goodwill, sell the “right” to take their photographs.
In this morning’s papers, the Cubs are in last place in the NL Central, 16 games under .500, 13 ½ games behind the first-place Brewers. The Cubs have shown some promise this season. Despite their current struggles, the Cubs have been in the playoffs at least three times in the last decade. But in attacking rogue mascots, the Cubs, right now, are alone in first place.
This article originally appeared on Forbes