Brave: Pixar’s Ode to Atlanta Baseball
A couple weeks ago, Disney’s news blog Stitch Kingdom reported on trademark trouble Disney has with the Atlanta National League Baseball Club (“ANLBC”), owners of the Atlanta Braves. Apparently ANLBC feels the name of Disney and Pixar’s upcoming movie “Brave” is similar enough to the name of the Atlanta Braves that consumers will confuse the two. Stitch Kingdom reported some reasons for why ANLBC feels this way, but you can’t help but come away from this article thinking about how ridiculous this trademark claim would be. Disney and Pixar’s movie looks to be about a young Scotswoman’s courage to break a village curse and gender stereotypes to boot, but the Atlanta Braves very much isn’t about that at all. This distinction of similarly named products being very different from each other is important in trademark law, because consumers can’t confuse two products if they are so different that they don’t compete with each other.
Oftentimes consumers like you or me wouldn’t be confused by similarities between different trademark names, but that doesn’t necessarily mean there wouldn’t be a legal likelihood of confusion. In fact, actual consumer confusion is just a non-determinative factor in AMF, Inc. v. Sleekcraft Boat’s multi-factor test for determining whether there’s a legal likelihood of confusion between similar trademarks. This broader ground of legal likelihood of confusion can lead to seemingly incredulous results (and good news headlines), but there is usually good reason to justify it. I don’t want to get into that too much, but I can imagine a large store full of trinkets, and a grandmother looking to buy gifts but really not knowing whether her grandchildren wanted memorabilia from the Atlanta Braves or Disney and Pixar’s Brave movie.
What’s more interesting than a likelihood of confusion analysis is how the trouble here is stemming from the ANLBC filing a complaint with the Patent and Trademark Office, objecting to Disney registering the “Brave” trademark. Towards the bottom of Stitch Kingdom’s report, they mention that owners of trademarks must “take all reasonable action” to prevent abandoning them and letting them fall into the public domain. This stems from the definition of “abandoned” in 15 U.S.C. § 1127, and it means that if the ANLBC doesn’t “take all reasonable action” to protect its trademark, it would lose the trademark and wouldn’t be able to bring claims against those who infringe upon it.
Could objecting to Disney and Pixar’s trademark registration just be a part of “all reasonable action?” It’s one thing to assert trademark protection over the word “brave” and bring a full-on lawsuit against someone, but it’s another entirely to merely file an objection to a trademark registration. Filing an objection must not be nearly as expensive or time consuming as a full-on lawsuit, so maybe the ANLBC has no intention of going through with this and is only doing this to preempt the idea that it abandoned its trademark. If this truly is the ANLBC’s motivation for objecting, you still have to wonder if it would be enough. Maybe “all reasonable action” requires more and they actually would have to bring a lawsuit. Stitch Kingdom reports that Disney and ANLBC are in negotiations to resolve the trouble, but in all honesty, I wouldn’t be surprised if the “negotiations” were just the ANLBC going through the motions necessary to not abandon its trademark.