• Megan Parent

The Green Monster Trademark Feud

“Pahk tha cah in tha hahvid yahd”

If you’re from Boston, Massachusetts, you know what that means. You don’t need a translator, a dictionary, Google ® , nothing! There’s no need to explain that the infamous Bostonian accent has been a staple to our city’s history for as long as we can remember. Everyone in New England that adopted some form of the “No R” lifestyle has a certain swagger about them, because let’s face it, we’re the bomb! If we’re on the topic of things that make Boston great, who can forget to mention the Boston Red Sox?! From Lansdowne Street to Yawkey Way, this city was truly blessed with a high-energy team to keep the spirit of Boston alive. Just a few days ago, Brock Holt, famous Red Sox second baseman, became the first to hit for a cycle in any MLB postseason game during a 16-1 lead at Yankee Stadium. While we’re at it, why don’t we talk about the fact that they won Game Two in the ALCS against the Houston Astros last night. Are you kidding me?! THAT, my friends, is Boston sports. Between “Fenway Franks” and the “Green Monster”, Fenway has found many ways to brand their franchise to make it more memorable and cozy.

Considering everything they’ve already accomplished, could the Red Sox be venturing into the condiments business? After this case, I don’t think so. The Boston Red Sox Baseball Club Limited Partnership filed an opposition against a small business for their use of the phrase “Green Monstah” in “Hazel’s Green Monstah Relish”, a relish named specifically after the large green stand in Fenway’s left field. The team asked the Trademark Trial and Appeal Board (TTAB) to block the two small business owners, Charles and Whitney Conroy, from registering the trademark, arguing that the potential “Green Monstah” trademark would cause damage to their already existing “Green Monster” trademark citing a likelihood of confusion. The team says that the version in the applicant’s name is a phonetic spelling in the style of the famous Bostonian accent and does not constitute any real difference from their trademark.

Currently, the Boston Red Sox own the rights to the following trademarks: GREEN MONSTER, WALLY THE GREEN MONSTER and MONSTER. The protection extends to things like baseball games, the Red Sox’s famous outfield wall, mascot services, as well as food and beverages, specifically those in concession stands and hot dogs. On the other hand, the Conroy’s would like to use their registered trademark for the sale and use of just relish. The key question here is whether consumers will be confused about who is associated with the relish. Will they believe it is affiliated with the Boston Red Sox, or will they know Charles and Whitney Conroy make that relish?

When looking at this issue from a legal perspective there are several factors the court will consider. A discussion of some of these factors and how it may or may not come into play in the case at hand, is below:

1.The similarity or dissimilarity of the appearance of the marks; this could also include sound, connotation and commercial impression. Because these two trademarks sound phonetically the same, this may be a big contributor for why they would not allow the Conroy’s to register the mark. Additionally, consumers, particularly those in Boston, will equate “Monstah” as being the same exact thing as “Monster.”

2. The nature of the goods or services as described in an application or registration or in connection with which a prior mark is in use. In other words, how similar is relish to the food and beverage category that their trademark covers? Since the Boston Red Sox “Green Monster” trademark includes the realm of food and beverages, as stated before, this may be another reason why the Conroy’s are unable to register the mark. The Boston Red Sox have marks for food and beverages, specifically food that would be found at concession stands and hot dogs. Clearly relish can be found at concession stands and nearly everyone puts relish on their hotdogs. The closeness in the nature of the goods may be what actually prevents “Green Monstah” from being registered.

3. Whether the goods are sold in the same trade channels; This is the way a product gets in the hands of the consumer (ie. wholesalers, retailers, distributors and even the internet.). Here, relish is bound to go through the same distribution chains as the other food and beverages that may be sold by the Red Sox, simply because of the nature of the item.

4. The conditions of buyers to whom sales are made, i.e. “impulse” versus careful, sophisticated purchasing; This brings up the possibility that, because relish is a daily food item that regular people buy, the average person might not be “sophisticated” enough to discern the difference between the two brands. One might just associate “Green Monstah” relish with the actual Boston Red Sox “Green Monster”.

5. The fame of the prior mark (sales, advertising, and length of use); The Red Sox have successfully branded themselves and their franchise by utilizing terms such as the “Green Monster”. Generally speaking, The Boston Red Sox and all of its marks associated with it, including “Green Monster” are known worldwide. Furthermore, the history of the Boston Red Sox makes it a famous and historical sports team, loved and hated all over.

Trademark law says that one of the main reasons for creating regulation on trademarks in the first place, is to limit the likelihood of confusion between products or brands. Whoever owns a trademark is allowed to use it, of course, but as soon as an outside party comes and uses it, even in a rather indirect way such as here, with the use of “green monstah”, it can be opposed. Trademarks are supposed to identify the source of goods and distinguish them from others. In my opinion, the likelihood of confusion caused by the Conroy’s decision to include “Green Monstah” is substantial. The consumers, in this case, may not be sophisticated enough to discern the difference between the two brands.

Most likely the main concern of the Boston Red Sox is the potential of dilution of their marks. Dilution becomes an issue when you have a famous mark, which we definitely do have a famous mark in question: the Green Monster. Everyone knows that the Green Monster is associated with the Boston Red Sox and Fenway Park --that’s what makes it famous. Dilution can occur in the form of the unauthorized use of a famous mark by a third party, which causes the consumer to be confused as to the source of the goods. In this case, there is a very high likelihood that consumers will become confused as to who makes the relish. Consumers may believe it's just another product made by the Red Sox and this would be untrue. Since the Red Sox have marks on hot dogs and other food and beverages that are at concession stands, the “Green Monstah” relish would definitely be included in this category. This is not allowed because essentially the Conroy’s would be benefitting monetarily from the fame and history of the Red Sox and the Green Monster trademarks when they have absolutely no relation to the Red Sox, at all. This is exactly what trademark law was intended to prevent.

To sum it all up, both sides would have a plausible argument. The Conroy’s are not explicitly using the Red Sox’ trademark as it is under debate whether the spelling difference actually creates an entirely different mark, or if the marks are so similar that it will cause the average consumer to become confused. There is a lot on the line for the Boston Red Sox, here because if the Conroy’s are allowed to register their mark, the Red Sox may suffer harm to their finances and reputation.

I do believe the Conroy’s were only doing this all in good fun, because who wouldn’t want to rep Boston in any way they could? However, we have to be careful not to encroach on the rights of others, no matter how enthusiastic we are about the subject. Boston is an amazing place and the home of some FANTASTIC sports teams. We don’t take no for an answer and this case, I believe the Red Sox are embodying that by trying to prove a point and stand their ground. We will keep you updated on any changes to this case, stay tuned!

GO SOX!!!!!!!!!!!!!!!!!!!

Hashtags: #BostonLawyer #BlackAttorney #TrademarkLaw #IntellectualPropertyLaw #TrademarkInfringement #GreenMonster #BostonRedSox #FenwayPark

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