Michael Chisena, a seemingly crafty New York Yankees fan, has been attempting to register the ALL RISE trademark for use in the field of clothing- specifically, t-shirts, sweatpants, jackets, and so forth for the past year since the original application was filed in July 2017. Seeing as Chisena is from the great state of New York and automatically must be a Yankees fan (because I’m pretty sure that’s how sports works), the ALL RISE mark is most likely referring to the “All rise” catchphrase often espoused in excitement when Aaron Judge is up to bat:

//www.youtube.com/watch?v=JqiAI5EwZDI

It seems pretty natural that the MLB doesn’t want a New York native – or anyone –  to have ownership over the ALL RISE mark, especially after the release of the above spot in March 2018.

In the opposition filed by the MLB on July 23, it argues that ALL RISE is not just a catchphrase associated with Aaron Judge, but it is also “a widely-used and generally known nickname for Judge.” In sum, the MLB claims that the use of the ALL RISE mark and any other use in clothing would cause confusion among consumers as to the source of the goods.

But let’s back up – this isn’t Chisena’s first time up to bat in a game of brand battles with the MLB. Back in 2017, Chisena also filed an application for the HERE COMES THE JUDGE trademark for use in clothing. The MLB chose to oppose this mark first, citing ownership of the intellectual property rights of its member, Aaron Judge, opposed registration of the HERE COMES THE JUDGE mark on March 21, 2018.

The previous opposition filed against the HERE COMES THE JUDGE mark is relatively similar to the more recent opposition filed against the ALL RISE mark. In the March opposition against the HERE COMES THE JUDGE mark, the MLB stated that “Judge is a famous, widely known and highly regarded professional baseball player for the New York Yankees of Major League baseball who is the reigning American League,” and that “[the] name JUDGE is associated with the fame and reputation of Judge and points uniquely to Judge as a particular living individual. Accordingly, Judge has proprietary rights in his surname JUDGE, alone and with other terms.”

Chisena simply responded to the earlier opposition on April 30, 2017 with a lackluster answer denying all of the allegations and knowledge of the possibility of infringement. The MLB has requested (and was granted) an extension of time to make its next move, but how long this case goes on all depends on how badly Chisena wants to hit a home run.

While the MLB doesn’t have a registration for the JUDGE, AARON JUDGE, or any other Aaron Judge-adjacent trademarks, it cited its common law trademark rights in these oppositions. While it’s not impossible to prove that you have the right to use a mark without a registration, this makes it a bit more difficult for the MLB to prove that it has the rights to ALL RISE and HERE COMES THE JUDGE.

Essentially, the MLB has to prove that the marks in question have strong, significant meaning in the marketplace and have hence adopted common law trademark rights. Essentially, this means that the MLB must show that the ALL RISE and HERE COMES THE JUDGE marks, in the perception of the public, are naturally connected with the MLB’s ownership, sponsorship, or affiliation. While it’s much harder to prove than simply citing an existing trademark registration, it may not be too difficult for a name as big as the MLB. We’ll have to wait in the stands and see how this game plays out.

Author, Caroline Womack, is a rising 3L at Quinnipiac University School of Law and primarily studies intellectual property law, focusing on video game and internet law.