As a Philadelphia-area law firm, we can’t resist talking about Philadelphia Eagles-related trademarks. Most Eagles fans and anybody who’s watched a Philadelphia Eagles game are familiar with the “brotherly shove” play. You’re not a football fan, let us explain.
What Is the Brotherly Shove Play?
The “Brotherly Shove” football play — also referred to as the “tush push” — is essentially a re-engineered quarterback sneak when, in short-yardage situations (typically 1-2 yards needed on third or fourth down), the offensive linemen tightly pack themselves at the line of scrimmage. When the ball is snapped, the center and guards push forward against the opposing defenders with the quarterback following closely behind. Two players set up behind the quarterback and charge forward giving the quarterback an extra shove to help propel him over the line of scrimmage.
Trademark Applications for “Brotherly Shove” and “Tush Push”
The Eagles have been so successful using this play that the term “Brotherly Shove,” referring to its version of the quarterback sneak, has become part of the football lexicon at least with respect to the Philadelphia Eagles. Hoping to monetize the popularity of the term, on October 10, 2023, the Philadelphia Eagles filed a trademark application for BROTHERLY SHOVE, which identifies “men’s, women’s and children’s clothing, namely, shirts, shorts, jackets, sweatshirts, jerseys, hats, and caps being headwear.” The Eagles filed a similar application for TUSH PUSH on December 14, 2023, also identifying clothing.
Trademark Filing Challenges and Disputes
All well and good, but a trademark search of the USPTO database turns up other BROTHERLY SHOVE trademark applications:
- BROTHERLY SHOVE (ser. no. 98229504) for baseball caps and hats, filed 10/18/2023
- CITY OF BROTHERLY SHOVE (ser. no. 98258911) for imprinting messages on t-shirts, filed 11/07/2023
- PHILLY BROTHERLY SHOVE (ser. no. 98316502) for hats, shirts, t-shirts, etc., filed 12/15/2023
In the case of TUSH PUSH, another applicant filed the mark on November 24, 2023, also identifying clothing (t-shirts).
How Trademark Rights Are Determined
This is a familiar pattern whenever a phrase becomes popular. Everybody wants to cash in and prevent others from using the trademark. Typically, people file applications without performing a clearance search or understanding the nuances of the trademark application process. We’ve written about other examples of this pattern for BOOMERS, TACO TUESDAY, EVERYBODY VS. RACISM, and other trademarks.
So, do all the BROTHERLY SHOVE applicants obtain registrations? Highly unlikely. In the United States, trademark rights are obtained through “use.” So, the first to use a trademark in the U.S. obtains priority over any person or entity that attempts to use the same or similar trademark later in time. But with respect to trademark registrations, applications filed first with the USPTO have priority over those that were filed later in time. If there is a dispute over which trademark owner used the trademark first, that must be adjudicated by the Trademark Trial and Appeal Board or a federal court. To put it simply, trademark rights are determined by “first use,” whereas trademark applications are examined on a “first-to-file” basis.
Will the Eagles Win the Trademark Battle?
All of the trademark applications for BROTHERLY SHOVE mentioned above were for the same or related goods, i.e., clothing or services related to clothing. The Eagles’ filing is the earliest and, therefore, the others are likely to be rejected and the Eagles win. The Eagles claim that it used the BROTHERLY SHOVE trademark as early as 10/03/2023; the others claim later dates or haven’t used it at all (intent-to-use applications). As to TUSH PUSH, the Eagles arrived late to the game and filed after another applicant filed its application on 11/24/2023. There is no indication that the Eagles used it before that date so the Eagles may be out of luck, assuming that earlier filed trademark application passes examination.
What About Generic Use?
Then there is the issue of enforcement. A Google search reveals dozens of t-shirt vendors selling shirts emblazoned with “Brotherly Shove,” referring to the Eagles. Trademark owners are obligated to pursue infringers because registered trademarks are worthless if everybody is using the trademark, which in turn raises the question of whether “Brotherly Shove” has become genericized. If a Trademark Examiner concludes that the terms are generic, no one can register the trademark.
GO EAGLES!!
–Adam G. Garson, Esq.
