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Blue in Boise – an update on one of my favorite trademarks

Posted by ipelton on: August 26th, 2011

Readers of this blog will likely know that Boise State’s blue football field is one of my favorite registered trademarks. It was innovative in the game of football at the time it was launched in the 1980’s, and it demonstrates that almost anything can serve as a trademark provided it is unique and it identifies a product or service. It falls within the category of “non-traditional” trademarks such as sounds, textures, smells, lighting arrangements, building and store designs, costumes, and more that I find fascinating. I admit it has many detractors. It certainly breaks with tradition. Imagine if a team painted its baseball field orange!?

But this summer, the blue turf has been in the news for a few reasons lately, and none of them good:

  • The athletic director who was behind development of the blue field has been fired by the school after 30 years there.
  • Boise State recently switched athletic conferences and joined the Mountain West. Apparently, as part of joining the league, the school has agreed not use use its blue uniforms on its home blue turf. “Coaches and players have complained for years that Boise State has an unfair competitive advantage when it wears all blue on its signature blue turf. ” ESPN: No all blue for Boise State home MWC games.

 Boise State is not the only blue field in the country. There are several others now.

Does Boise State have a potential infringement claim against other schools or teams using blue turf? Have they ever sought to enforce their registered trademark? A high school in Texas just unveiled a blue turf field as well this summer, reportedly the first at the high school level.

Tip: The owner of a registered trademark is responsive for enforcing it against infringers. If Boise State continues to let others use blue fields despite its trademark registration, the trademark may not be enforceable for a variety of reasons including acquiescence, lack of enforcement, and considerable third party use. One option for Boise State, if it believes any of these other blue fields are infringing, is to try to work out a license arrangement with the others – that way they would maintain sole ownership of the trademark rights and retain the ability to enforce the trademark against future infringers – but they could avoid looking like a bully forcing other schools to change after the investments they already made in their turf.

USPTO Records for Registration No. 3707623:

Image:

Services: presentation of intercollegiate sporting events and sports exhibitions rendered in a stadium, etc.

Description of Mark: The mark consists of the color blue used on the artifical turf in the stadium. The matter shown in broken lines on the drawing shows positioning of the mark and is not claimed as a feature of the mark.

Owner: Boise State University

 

UPDATE: Boise State apparently did object to the recent high school unveiling a blue field. However, they did not object to use of the color blue, only to use of the phrase “Blue Turf.” According to this article published yesterday, the school is now careful to say “True Blue Turf”, “Oxford Blue Turf” or “Navy Blue Turf.”

I think this type of enforcement strategy by Boise State is mis-guided. The wording “blue turf” is arguably very descriptive if you have a field that is blue. Having a field that is blue is what Boise State protected and uses as a brand. If they wish to stay unique and retain protectable rights, I hope they are focusing on more than just the wording “blue turf.”

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