Barry Werbin, Counsel

Herrick counsel, Barry Werbin, authored an article for the International Trademark Association (INTA) Bulletin discussing the Federal Circuit's affirmation of a Trademark Trial and Appeal Board decision in favor of New York Yankees player Aaron Judge and the Major League Players Association (MLPA). The board ruled that Aaron Judge and the MLPA have priority of use in U.S. commerce for the phrases "All Rise" and "Here Comes the Judge" and for a design mark depicting a baseball diamond with a scale-of-justice overlay.

In the article, Barry notes that the "Federal Circuit affirmed the Board’s finding that the opposers had priority of use based on substantial testimony and documentation. The opposers’ evidence included officially licensed products bearing Judge’s personal indicia and judicial-related phrases or symbols going back to at least June 2017."

Further, the court rejected the argument that the marks were "merely ornamental and did not function as marks. It noted that a trademark must function as a source identifier, and a determination of whether a mark fucntions as a source identifier focuses on how the marks were used in the marketplace and how consumers perceived them." 

Read the full article in the International Trademark Association (INTA) Bulletin here.