For those of you that haven’t been paying attention to the NCAA Men’s College Basketball tournament this year, the University of Kentucky is, like, really good. The team, which entered the tournament without a loss on its record is attempting to become the first undefeated champion in several decades, the last occurring when Bobby Knight took a break from throwing chairs across the court to win it all for Indiana in 1976. They are currently two games away from achieving the first forty-and-zero season in college basketball history.
But they’re already fighting trademark battles over a perfect season they have yet to attain. The school recently sent a cease and desist letter to one David Son, who has been using the “40-0” mark since 2013 and filed for a trademark back in October of that year.
That’s the same time he filed for his company, 40-0 LLC, to be incorporated in the state of Kentucky before dissolving in August 2014. Records with the state show that on March 9 of this year, Son applied and was approved to have the company be reinstated and activated again.
“My client took all the steps he needed to take to establish ownership of 40-0,” Son’s lawyer, Brian McGraw, said. “There’s no evidence that the University of Kentucky owns any rights to 40-0.”
It strains credulity to suggest that the timing for the reinstatement and the potential run by the Kentucky basketball team is coincidental, and I’m unclear as to why the reinstatement of the company should be an argument over the previous abandonment of the mark. That said, two years isn’t a particularly long stretch of time and, assuming Son’s lawyer has done his homework, Kentucky’s lack of claim to any mark makes a cease and desist overreach to say the least. Perhaps more interesting would be how this all works if Kentucky can point to some kind of trademark filing, given that the mark would consist both of an attainment the school can’t yet lay claim to and that, should Kentucky indeed go 40-0, the numeric record seems to be factual information, likely undeserving of a mark in any case. As the ESPN article notes, opposition to Son’s mark would seem to be the more logical reaction from the school, rather than a C&D letter.
What’s strange is the accompanying remarks from Kentucky’s legal team.
“We are well aware of third parties attempting to capitalize on the historic season of the University of Kentucky men’s basketball team,” said Jim Aronowitz, general counsel for Fermata Partners. “As the University’s licensing agent, we are working to vigorously protect UK’s trademark rights in the marketplace from those that use the institution’s indicia without permission.”
Except the history hasn’t been made yet, counselor. Not that such prospective hubris is without precedent. The New England Patriots wanted to trademark “19-0” even after they failed to run the NFL table several years back. Is this a simple matter of trademark “squatting,” with Son, who lives in Kentucky and is a self-admitted Kentucky basketball fan, realizing the likely outcome here? Sure, probably, though that claim is made more problematic given the years-old history of Son’s mark. Still, factual information is factual information.
The two easiest ways to resolve this? Well, the school can file an opposition to the mark instead of sending off threat letters, or they could simply lose one of these next two games. Then there would be nothing to fight over.