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Monday, October 5, 2020

Spiders, Speculation and Trademarks — What's Next in the Cleveland Indians' Search for a New Franchise Name

Posted By on Mon, Oct 5, 2020 at 3:42 PM

click to enlarge CLEVELAND SPIDERS CONCEPT BY BEN PETERS SUBMITTED TO SCENE'S REDESIGN THE TRIBE CONTEST
  • Cleveland Spiders concept by Ben Peters submitted to Scene's Redesign the Tribe contest

(Note: Confirming what was a foregone conclusion, the Cleveland baseball team will announce this week that it will no longer be called the Indians. Here's our look from October at what awaits the team in terms of trademarks as the search for a new identity continues.)

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Last week's Wild Card series sweep at the hands of the New York Yankees marked the definitive end to Cleveland's 2020 season and the possible end of Francisco Lindor's tenure in town.



As far as conclusions go, it also could have been the the last time the city's MLB franchise takes the field under the Indians' moniker.

Tribe ownership committed in early July, amid a summer of much-needed discussion regarding minorities in America and an announcement by Washington's NFL team that it would ditch the Redskins name, to a full exploration of a new name for the team that has been called the Indians since 1915 and which used the Red Sambo Chief Wahoo mascot until the 2019 season.

But there have been no firm announcements by the team regarding a timeline.

In an August City Club event, Indians' Senior VP of Public Affairs Bob Dibiasio cautioned that there would be no headlines anytime soon. "People will have to be patient," he said. "This is not something we're going to rush to a decision on."

The Indians are still in the process of conducting listening interviews with local Native Americans, minorities and advocacy groups, which is just one small part of the monumental task of rebranding a professional sports organization from top to bottom: There's the name itself, the attendant logo, the focus groups, the league approval, and an estimated 185 other things that we haven't even considered.

There are obvious hurdles though, and one of them is trademark rights.

Washington's path to clear that obstacle is both similar and different than the one awaiting Cleveland. In their case, a man named Martin McCaulay has spent years and thousands of dollars amassing trademarks on possible names. While he's previously said he'd want owner Dan Snyder to pony up a payment for one of them, McCaulay has changed his tune as of late, saying he'd be happy to transfer the trademark to the billionaire if one of the trademarked names ends up being the one Washington wants to move forward with.

In Cleveland, the intellectual property land-grab started much more recently.

The team's early July announcement led to a flurry of speculative trademark applications filed for names that could conceivably be under consideration by the Dolans.

Applications for "Cleveland Tribe" were filed by a Jeremy Hume from Columbus, a David Conrow from Houston and a Matthew Silver from California in a span of 24 hours between July 13 and July 14.

Silver also filed an application for "Cleveland Rockers" in August.

"Cleveland Guardians" was the target for applications filed by Tim Halcomb of Texas and Elie Mishaan of New York.

The "Cleveland Buckeyes"? Ohio resident Susan O'Haimhirgin filed an application on the name this summer.

Andrew Steen of Georgia has an application out on the "Cleveland Baseball Team" and EKR Brands, an LLC in Westlake, has one out on the "Cleveland Baseball Club."

As for the Cleveland Spiders, a popular favorite among fans, Arlen Love filed an application on the name days after the Indians' July statement.

"Whether I get the trademark or not, I think the Spiders would be cool," Love told Scene this week about his application.

The Cleveland Heights native who moved out West a decade ago is still very much a Tribe fan, and very much in agreement that Chief Wahoo and the Indians name had to go.

"I was actually just looking it up, to see if anyone had the Spiders trademark," he said of how the application started. "I saw that it was available, and I thought it'd be cool to go back to the original team, a shoutout to the past, and I thought I'm going to do this and will it into existence. And if they do or don't [go with Spiders], I can always make merchandise later."

Merchandise is a key part of most trademark applications, and here it's worth explaining the application process a bit.

To start, it's a minimum $225 one-time government fee.

The initial process includes a review by the United States Patent and Trademark Office (“USPTO”).

This takes, on average, three to four months.

Next, if it's given a green light, there's a 30-day period of public opposition, where folks who might have competing claims can argue an application infringes on their rights, etc.

Finally, to be granted a registered trademark, the office is going to look for you to be using the name or phrase for the actual purpose expressed on your application, not just parking on it like a lottery ticket.

"Let's say you have a good faith application, if you're not doing it just to try to make a quick buck hoping the Indians will write you a check, you might set up an informational website about Cleveland or Cleveland sports and print t-shirts," says Suzann Moskowitz, a trademark attorney in Cleveland.

So far, the applications filed don't appear to have any of that. Which makes getting approval for the trademark hard, and that's even before the idea of the Indians possibly maybe wanting the name and inquiring about it.

"If you can prove ‘bona fide’ use in commerce — shirts, mugs, a website — you might be able to get a trademark in a year, if no one challenges it, but if you don't prove use, and are willing to pay extension fees, it could go years," says Moskowitz. "And anyone who actually thinks they're going to make money holding up the Cleveland Indians from picking a new name..."

They could get a fight from the team, she says, or they could get a cordial inquiry about what it might take to get them to relinquish the application. (Arlen Love has not heard from the team, if you were wondering.) But it's more likely that one of three other things happen: a) People who've applied so far don't get their applications approved and the Indians simply make their own for one of them, or they apply concurrently with the active applications, but in either case that situation would prove to be a lengthy process; b) The Indians pick a name for which no one else has sought a trademark; or c) The Indians simply go with something they already have secure registered trademark rights to.

There are four options on that count.

Cleveland already owns the rights to the Cleveland Naps, Cleveland Bronchos and Cleveland Blues. (These were all registered in 2010 for merchandise reasons and renewed in 2020.) The team also has two trademarks on "Tribe," which makes it unlikely the government would grant the "Cleveland Tribe" trademark to anyone else.

In all four of those cases, prior use and registrations would likely mean a quick and relatively easy process with the USPTO, Moskowitz says.

Which, if the Indians want to have a new name for the 2021 season, would be the most cautious and realistic option, given the timeline of the initial review and the fact that it's already October, she says. Otherwise, something entirely new would mean Cleveland might be waiting until 2022, at the earliest, to meet the new squad.

The franchise is in the same boat as any other business out there in many ways.

"At this point, it's so saturated out there when it comes to naming," says Moskowitz. "A lot of times it’s a matter of timing and the willingness to get creative."

It's tough to secure not only trademarks but the domain names and social handles that go along with business.

ClevelandGuardians.com, for example, is used by a local roller derby team. ClevelandBlues.com hasn't been updated since 2013, but it's home to a site for a local girls soccer league. Others — ClevelandSpiders.com, ClevelandTribe.com — are claimed, though most times by folks who've redacted ownership information, and simply advertised as domains up for resale.

On the social media front, the Indians are in a chicken or egg situation.

"Most social media companies have procedures to enable owners to file a trademark infringement report as the first step to recover an account name or handle," says Moskowitz. "But you generally need a registered trademark first, and, in most cases, the registration is going to take awhile.” But it’s even more complicated than that, she explains, as “getting the handle is not guaranteed because it’s not always clear that someone is acting in bad faith as a speculator. They may have grabbed the handle for some other purpose, long before it was clear that the team might choose that name – or they might at least have a plausible argument about their alleged good faith.”

In that case, a friendly phone call or offer would probably follow.

"Because these formal takedown procedures (like USPTO oppositions) can take so long" she says. "they can do it informally, which is probably what's going to happen here (and which we may never hear about due to promises of confidentiality)."

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