Here's how trademarks work: you apply for one, if nobody in the general public knows that you've applied for one and objects to your ownership rights over a word, phrase or symbol, and the trademark examiners don't find a competing mark, you get it. Later, you have to hassle people in order to keep it. Very rarely, your catchphrase is deemed too racist to own.
That's how Texas A&M was able to trademark the term "12th Man." In 1990, the school applied to trademark the phrase. Nobody stopped them, probably because nobody knew what the hell they were up to, and boom, the people at College Station now own a particular way of expressing fan support.
To keep it, they have to "protect" it, which means they have to dutifully inform people who use the term that they own the mark. Don't hate the player here, hate the game. The way they law works requires Texas A&M to keep on top of its mark.
But they don't have to be assholes about it. Charles Sonntag co-founded 12thManThunder.com, a website for people who wanted to keep the Bills in Buffalo. The Aggies are threatening to sue Sonntag for infringing on the "12th Man."
Legally, it's an open question as to whether Sonntag's website actually infringes on A&M's mark. There's almost no likelihood of confusion between 12thManThunder in Buffalo and the College Station fan base.
If you watched the Super Bowl, you might have noticed a much more clear cut case of 12th Man infringement by the Seattle Seahawks. They have a 12th Man, they sell jerseys with #12 on them, they do the whole thing. Back in 2006, A&M filed a lawsuit against the Seahawks. But instead of going toe-to-toe and playing legal hardball with the powerful NFL, A&M and the Seahawks were able to reach a settlement. The Seahawks paid A&M $100,000 and pay a $5,000 annual licensing fee for use of the mark. There are also regional protections in the deal; you probably won't see 12th Man Seahawks gear sold in College Station... which you know, makes sense.
The Buffalo Bills — the actual NFL football team — ALSO have a deal with A&M to use the phrase.
So it's not like A&M objects in principle to other people in far off places using the 12th Man. It's that they object to people using it without paying them a pound of flesh.
However, Charles Sonntag just happens to be a double amputee, cancer survivor who suffers from Albright's disease. He can't afford attorneys who can litigate this case — and he does have some kind of defense that his use does not infringe on A&M's mark — and he can't afford to pay A&M whatever it wants in "leave me alone" money.
Sonntag capitulated and agreed to change the name. Was the bully satisfied? Not in the least. The Buffalo News reports:
Texas A&M spokesman Shane Hinckley said the website's owners have been too slow to respond.
"We have been negotiating about a turnover date for several weeks. When it became apparent they would not make that change, we gave them a deadline of last Friday to respond. The domain name still needs to be transferred from their ownership. It is still redirecting to their website. Their use of social media is still in question," Hinckley said.
A&M wants all the 12thManThunder posters taken down (some are posted at area bars), and they want the Facebook group named changed. Did I mention that Sonntag is a double amputee? HE HAS ONE ARM AND ONE LEG! Could we give him a minute to deal with all of this?
Texas A&M is picking on this man, not because they think he's seriously diluting their trademark, but because he's not wealthy enough to stop them. I guess it's easy enough for the 12th Man to rattle Rice and then congratulate themselves for the effort.