Fighting for Trademark Protection Against an NFL Linebacker

October 11, 2018

If there is one person that I would not pick a fight with, it’s an NFL linebacker. Have you seen the size of these guys? They have arms as big as my entire chest, they are fast, mean, some are a little crazy, and they wear that black stuff under their eyes that looks like war paint. Their job is to tackle, and that is in and of itself a violent thing.

That’s one of the reasons why I found this story so intriguing: A man from Maryland is embroiled in a legal battle with Terrell Suggs, linebacker for the Baltimore Ravens. And he’s a good one.

In the opening minutes of NFL games, the starters on each team get a chance to say who they are and where they went to school. Most of the time they will name their college. A few get smart and name their elementary school.

During the Ravens November 6 game against the rival Pittsburgh Steelers, Suggs introduced us to his alma mater:
https://youtu.be/WDOQNGGuIz4

That’s right, “Ball So Hard University.” He actually attended Arizona State, where he set the NCAA single-season record for sacks, but that’s not the point of this piece.

What he probably meant as a joke turned into a national phenomenon. Ball So Hard University blew up on twitter. An enterprising entrepreneur in Maryland named Brian Bussells saw an opportunity and seized it. He applied for federal trademark protection for the mark “Ball So Hard” three days after this game. He set up a website and started selling merchandise with the mark. Suggs himself wore one of these shirts at a press conference a few days after the game.

But now it gets interesting. The Baltimore Sun reports that a week later, Suggs’ company filed for 5 trademarks to use his nickname “T-Sizzle” and the mark “Ball So Hard.” One of these trademarks, the one for apparel, appears to overlap with Bussell’s trademark. That is a problem.

Trademark rights begin either (1) by being the first to FILE an application for federal registration of the mark, if there is no prior user; OR (2) by being the first to USE the mark, if there is no pending application for protection. Use generally means the actual sale of a product to the public with the mark attached. Because Suggs merely named the school, but did not therein seek to profit from the name, arguably he did not use the mark within the meaning of Federal trademark law. Additionally, many legal experts believe that Bussell’s mark has precedent because he filed first.

The US Trademark Office now has the responsibility to determine who owns the mark “Ball So Hard.” Suggs may lose the filing and use argument. However, he may wind up ultimately winning this battle because he has the legal right to prevent people from benefiting financially from the use of his name, likeness, or attributes closely associated with his personal identity.

We will just have to wait and see how this develops. I imagine that Suggs will ultimately own the mark – trademarks can be bought and sold – and he’s making $3.4 million for the 2011 season. And if the money doesn’t sway Bussells, Suggs could always make Bussells an offer he can’t refuse. Suggs is an NFL linebacker after all.

-Jeromye Sartain