The Atlanta National League Baseball Club, which owns the Atlanta Braves, has filed “a formal objection” to Disney’s application to the U.S. Patent and Trademark Office to register the word BRAVE as a trademark. Disney’s Pixar division is promoting their movie Brave, which is set to be released in June 2012. The film is about a Scottish princess who must use her archery skills to save her kingdom from an evil curse. Where do the parties stand, and will anyone confuse a story about a fairytale princess with a group of baseball players in Georgia?
Disney and the Braves are currently in negotiations regarding several of the ball club’s claims, which state that “damages will occur as a result of Disney’s trademarks being approved as they [the Ball Club] have used the singular form before on merchandise,” and that there is likely to be confusion between the use of the word by Disney and the use of “Brave” by fans and media who “use the singular form when referring to a single [baseball] player…”
The test for trademark infringement is “confusion, or likelihood of confusion” between the two marks. Direct competition between the two trademark owners is not always necessary for a finding of infringement. Furthermore, actual consumer confusion between the two trademarks does not need to happen occur – the primary issue is likelihood of confusion.
The more the goods or services are in direct competition in the marketplace, the smaller the degree of similarity required to show likelihood of confusion. In this case, there is some overlap in the markets, although they are certainly not identical. Disney is primarily markets to children, and this movie in particular appears to be aimed at the largely young female audience that has embraced the Disney Princess line of products (or have had that line of products forced upon them practically at gunpoint, depending on your perspective). While baseball does have a large adult male fan base, the sport does heavily advertise to children of both genders.
The Atlanta Braves have several registered trademarks for involving the word “Braves” (here is one of their trademark registrations) in the plural form, but they do not appear to formally use the single form of the word “Brave.” However, per the court’s decision In Northam Warren Corp v. Universal Cosmetic Company, “exact similitude is not required” between two trademarks for infringement to occur. It is sufficient that the junior trademark would deceive the public “in the purchase of a protected article.” Furthermore, the Braves argue that the single form has been used for team merchandising and in reference to players.
Another issue to consider is the definition of the underlying words. The Atlanta Braves use the word in connection with an “Indian warrior.” Disney, in contrast, looks like they are using the term as an adjective – “ready to face and endure danger or pain; showing courage.” When determining whether Disney’s mark may lead to confusion, the conflicting marks will be compared with respect to “sound, sight and meaning.” If a word has different meanings in different contexts, even the use of the same word as a mark may not be likely to cause confusion. In this case, however, I doubt that distinction alone would be enough to prevent a likelihood of confusion.
Nonetheless, as a general proposition, I don’t see a lot of merit in the Ball Club’s claims. Weighing out all of the factors involved in this kind of trademark inquiry – only some of which are discussed above – it seems like a stretch to claim that consumers will be confused between an animated fairytale and products emanating from a baseball team. Disney would have to use the word “Brave” in a context that gave rise to greater likelihood of confusion – such as generating a logo that looks similar to one used by the Braves – in order for there to be a real issue here. Nonetheless, I can almost guarantee that the parties will settle this out of court and Disney’s merchandising plan will roll out without any serious impediments. There is simply too much money at stake for Disney to take any chance of finding itself in front of a judge who favors the Ball Club’s position.
Coincidentally, the Atlanta Braves spring training is held at Walt Disney World’s ESPN Wide World of Sports. On the off chance that the case lingers on, this could be an interesting spring in Florida.
