A right answer in the Cascadia Cup trademark registration kerfuffle

It's okay to talk about sports on Counselor @ Law because this story is really about intellectual property.

Check that. The story is about where intellectual property meets cultural property.

Some background: Seattle, Vancouver and Portland have soccer clubs that, of late, play in the professional league known as MLS.

But before any of Seattle, Vancouver and Portland joined MLS, the three were in other leagues, and over years a rivalry developed.

Cascadia cup

Fans put a name to the rivalry and to the trophy awarded to the yearly champion: the Cascadia Cup.

(Side note: "Cascadia" has connotations difficult for people who don't live along the Vancouver/Seattle/Portland corridor to understand. It is a transnational (maybe even a secessionist) concept. These subversive connotations are fitting for the soccer rivalry insofar as they suggest that loyalty to the sport runs deeper than national identity.)

Comes now the MLS, looking to capitalize on the goodwill associated with regional rivalries among member MLS teams. According to this story from the AP:

"The MLS has . . . applied to trademark other rivalries, including the Rocky Mountain Cup, the Brimstone Cup between the Chicago Fire and FC Dallas, and the California Clasico between the San Jose Earthquakes and the L.A. Galaxy."

The MLS wants to treat "Cascadia Cup" as MLS IP as well, but a consortium of Seattle, Vancouver and Portland soccer fan clubs have organized to assert their own, prior rights in the trademark. See this assessment of the clash from Michael Atkins, who also links to the trademark applications at issue.

On the most recent Nos Audietis podcast, former soccer player and current TV soccer commentator Alexi Lalas seemed to suggest that the fan group should defer to the beneficence of the league. Here's what he said in answer to a question about whether it would be realistic for the MLS to newly brand the regional rivalry and ignore the Cascadia Cup mark:

"Oh yeah, it is certainly realistic.

"I see first and foremost them [the league and the fan group] getting together, them talking. I think from a CCC [Cascadia Cup Council, the fan group] perspective, they should first let MLS explain themselves much better, and let them give them detailed, point by point by point, 'this is how we are going to make your Cup better, and this is why the ownership, or being the custodians, of this Cup, is going to help it become better and become even something greater than you ever imagined. And this is why having it greater than you ever imagined is going to be good for you, and maybe even,' appealing to their sense of greater good, 'and why it is going to be good for this league and this sport that you, at least on the surface, purport that you believe in.' I think that's first and foremost hat has to happen.

"With regards to the other possibility, where they just napalm the whole thing and say 'okay fine, it's still yours, go ahead, enjoy it, do what you want to do, but there will be no mention of it, there will be no recognition of it from a league nor from a team standpoint going forward; and if it's this clandestine type of out back, alley way, post-game presentation to a player who will remain anonymous, then so be it.'

"I hope it doesn't get to that, because what will mean is that they [the MLS] will create their own version of it, and it will be diluted, and it will lack any authenticity or credibility, and it will serve to further distance the very people that are going to drive, as I said, the very fuel that is hopefully going to ignite this to something bigger and better. That would be disappointing to me, not just from a Cascadia Cup perspective, but from a soccer perspective. Because if there is one thing I think we can all agree on, it's that in order for this game to continue to go forward, there has to be communication, there has to be cooperation, and to be quite honest, that's how we've gotten so far in such a relatively short period of time. And if it starts splintering off, that can lead to big, big problems."

I think Lalas is too quick to concede that a typical, advertising sponsorship path is the right way to exploit this particular mark. But I do think he's right that the parties should focus on what they want the Cascadia Cup to mean in the coming years.

The framework for the solution is this: MLS should acknowledge the prior rights of the supporters group in the Cascadia Cup mark, assign its Candian registration to the supporters group, and decline to oppose the application that the supporters group has made in the US; in exchange, the supporters should give MLS a multi-year license to use the Cascadia Cup mark according to branding guidelines that are mutually acceptable.

The negotiations should be about the branding guidelines for the Cascadia Cup mark.

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