Quarterback Tom Brady of the New England Patriots is usually attacking in the air. Now he is on the legal attack. His business entity, TEB Capital Management , which owns all of the trademarks that Tom has used and registered, is now attempting to legally protect the phrase TOM TERRIFIC by filing two federal trademark applications last month in the United States Trademark Office. The problem is that, to anyone who follows professional sports, there really is only one TOM TERRIFIC and it is definitely not Tom Brady. The TOM TERRIFIC of sports is unquestionably Tom Seaver, the great major league baseball and H all of F ame pitcher.
According to the records of the Trademark Office, the first TOM TERRIFIC trademark application filed by Tom Brady is for collectible trading cards, sports trading cards, posters, and printed photographs. The second filing that was made on the very same day is for t-shirts and shirts. These filings indicate that Tom Brady is apparently looking to launch a line of clothing called TOM TERRIFIC , as well as a line of collectible trading cards with the same name.
Tom Seaver, the iconic pitcher, who is most closely associated with the New York Mets baseball team, has for the last 50 years been known as TOM TERRIFIC to anyone who even marginally follows sports in the United States. As a Met, Tom Seaver won three Cy Young awards and helped lead the Mets to an upset victory over the heavily favored Baltimore Orioles in the 1969 World Series. And as any fan of baseball knows, Seaver was synonymous with the TOM TERRIFIC nickname way before Tom Brady was even born, much less before he ever threw a football for the New England Patriots.
This author, who was 10 years old when the Mets won the World Series in ’69, is, to say the least, not pleased. M ost Met fans , as well as all baseball fans at large , are not pleased as well. And I’m sure that Tom Seaver’s family and the New York Mets organization are also not pleased.
As an IP lawyer, I said to myself that there has to be a legal remedy here. After all, and by way of example, I cannot imagine going into a sports clothing store to buy a shirt that says, in big bold letters on the front, TOM TERRIFIC, and thinking it is associated with anyone other than Tom Seaver. Unfortunately, there is probably no conventional trademark claim here since the TOM TERRIFIC name is, to the best of my knowledge, not being used by Tom Seaver, his family or even the Mets organization in order to promote shirts, apparel in general or other consumer products. Nor do I think the filings for the TOM TERRIFIC name can be successfully attacked directly at the Trademark Office.
But I do think that a viable legal claim could perhaps be asserted for unfair competition. Section 43(a) of what is known as the United States Lanham Act provides for a federal cause of action by anyone who is injured or likely to be injured by any false designation of origin or false or misleading description or representation that is likely to cause confusion, mistake or deception. This language seems to be on point. Certainly Tom Brady using the TOM TERRIFIC name to sell product s is misleading since almost anyone who follows sports associates the phrase TOM TERRIFIC with Tom Seaver the pitcher and not Tom Brady the quarterback. Simply stated, the prospective purchaser would very likely be confused.
So as a lawyer, a baseball fan and a New Yorker, here is my advice. If Tom Brady doesn’t “pull the plug” on this debacle, if he actually tries to start using the TOM TERRIFIC name on product which he endorses and with which Tom Seaver has no connection, you, Tom Seaver, must strike back. You must demand that Tom Brady stop. If necessary, you go into court and request the Judge to order injunctive relief. You seek damages. You do legally whatever it takes.
There was only one BAMBINO, only one JOLTIN’ JOE, only one IRON HORSE, and only one MR. OCTOBER. And there still is only one TOM TERRIFIC.