4th and Long: Tom Brady Fumbles Attempt to Trademark TOM TERRIFIC

September 18, 2019 | Michael C. Cannata | Frank M. Misiti | Intellectual Property

There are many men named Tom. But only one of those Toms is “terrific” – Tom Seaver. The 12-time All-Star, three-time Cy Young Award winner and first-ballot Hall of Famer’s iconic performance in Game four of the 1969 World Series forever changed the course of the New York Mets franchise and, undoubtedly, played a pivotal role in cementing his legacy as “Tom Terrific.”

There was no reason for surprise at the overwhelming public outcry when another Tom – namely, New England Patriots quarterback Tom Brady – recently attempted to secure federal trademark protection for the name TOM TERRIFIC. To be sure, the vitriol directed at Brady for this legal maneuver was immediate, unrelenting and best summarized by one individual who was quoted in the Washington Post as saying that Brady should “Go back to Boston and get [his] own f_ _ _ _ _ _ name . . . .”

Brady’s response to this criticism, however, raises a question as to whether he actually intended to use the TOM TERRIFIC mark. Specifically, Brady was quoted as saying:

I was actually trying to do something because I didn’t like the nickname and I wanted to make sure no one used it because some people wanted to use it . . . . I was trying to keep people from using it, and then it got spun around to something different than what it was. Good lesson learned, and I’ll try to do things a little different in the future.

It is, understandably, difficult to square Brady’s comments with his representation to the U.S. Patent and Trademark Office (USPTO) in his trademark applications that he had “a bona fide intention to use the mark in commerce.” Why would Brady ever want to use a trademark he “didn’t like?” Your guess is as good as ours.

Regardless, it appears that even if Brady actually intended to use the TOM TERRIFIC mark, the USPTO is not going to facilitate such usage through the grant of federal trademark protection. Last month, after considering a substantial letter of protest, the USPTO sacked Brady’s trademark applications on the basis that the mark suggests a false connection with New York Mets legend Tom Seaver and concluded that “the nickname TOM TERRIFIC points uniquely and unmistakably to Tom Seaver. . . ”

Any “Hail Mary” that Brady attempts in response to this rejection must be filed with the USPTO early next year. However, the better game plan –  consistent with his comments to the media –  may be to take a knee with respect to his efforts to trademark TOM TERRIFIC.

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