Stanley D. Ference III

Trademark Trial and Appeal Board

Dec 14, 1999

No. 75006702 (T.T.A.B. Dec. 14, 1999)

Hearing: Paper No. 14
May 19, 1999 DEB
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB DEC. 14, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
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In re Stanley D. Ference III
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Serial No. 75/006,702
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Stanley D. Ference III, Pro Se.
Henry S. Zak, Trademark Examining Attorney, Law Office 108
(David Shallant, Managing Attorney).
_______
Before Quinn, Hohein and Bucher, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Stanley D. Ference III, a citizen of the United States
and resident of Pittsburgh, Pennsylvania, has applied to
register the mark “BLITZBURGH” for “clothing, namely hats,
T-shirts and sweatshirts,” in International Class 25.1
A final refusal was ultimately issued pursuant to
Section 2(a) of the Trademark Act, 15 U.S.C. 1052(a), on the
ground that applicant's mark consists of or comprises matter

1 Application Serial No. 75/006,702, filed October 17, 1995,
based upon an allegation of a bona fide intention to use the mark
in commerce.
Serial No. 75/006,702
2
which falsely suggests a connection with a professional
football team known as the Pittsburgh Steelers, a member
Serial No. 75/006,702
3
team of the National Football League, operated by Pittsburgh
Steelers Sports, Inc., and located in Pittsburgh,
Pennsylvania.
Applicant has appealed the final refusal to register.
The case was fully briefed, and an oral hearing was held
before the Board. We reverse the refusal to register.
Section 2(a) of the Trademark Act prohibits, inter
alia, the registration of a mark if it “consists of or
comprises … matter which may … falsely suggest a connection
with persons, living or dead, institutions, beliefs, or
national symbols.”
In order to prevail on this ground, the Trademark
Examining Attorney must demonstrate that:
(1) applicant's mark is the same or a
close approximation of a name or
identity previously used by the
Pittsburgh Steelers;
(2) the mark would be recognized as
such;
(3) the Pittsburgh Steelers are not
connected with the products being
marketed by the applicant under the
mark; and,
(4) the Pittsburgh Steelers’ name or
identity is of sufficient fame or
reputation that when the applicant's
mark is used in connection with its
goods, a connection with the
Pittsburgh Steelers would be
presumed.
See Buffett v. Chi-Chi’s, Inc., 226 USPQ 428 (TTAB 1985).
Serial No. 75/006,702
4
Applicant argues that the Trademark Examining Attorney
has failed to show that the term “Blitzburgh” is actually
used by a professional football team; that this term is part
of the Steelers’ “persona”; and that the football team is
the “prior user.”
The record herein demonstrates that “Blitzburgh” was an
oft-used nickname for a defensive scheme associated with the
Pittsburgh Steelers football team, beginning in 1992. As
shown by excerpts from newspaper articles made of record by
the Examining Attorney, the term “Blitzburgh” received
substantial publicity in 1994. Then, from 1994 through
1996, sports writers, players, coaches and staffers from the
Pittsburgh Steelers football team and other NFL teams, as
well as Steelers fans in the public at large, repeatedly
used the term “Blitzburgh” to refer to this dominating pass
rush employed by the Pittsburgh Steelers. The Trademark
Examining Attorney found nearly seven hundred media
citations to this expression, all referring in some manner
to this “complicated” and “aggressive” defensive scheme.
Applicant argues, however, that nothing in the record
suggests that the Pittsburgh Steelers team itself ever
adopted this “persona.” While it is arguably not required,
we have to agree that there is no showing that the team
itself actually adopted and used this term. We also find it
Serial No. 75/006,702
5
probative that neither the NFL nor the Pittsburgh Steelers
specifically objected to the use of the word mark
“BLITZBURGH” during their litigation against a local brewery
using this word prominently as a trademark for beer.2
Rather, the plaintiffs in that action objected only to the
defendant’s use of the team’s colors, references to the hype
among Steelers’ fans hoping to return to the Super Bowl
(“The Road to Phoenix”), etc. Finally, as applicant argues,
even to the present date, the Pittsburgh Steelers have not
applied for a federal trademark registration for the term
“Blitzburgh,” nor is there even any indication they have
taken steps to support common law rights. It is indeed
difficult to conclude on the record before us, that a slang
expression that achieves recognition among sports
aficionados, but has not been appropriated or exploited by
the sports team itself, can be deemed to be the “persona” of
that organization.
The Trademark Examining Attorney argues that sports
teams use, and frequently register, their team names,
nicknames, mascots, etc., for exactly the same collateral
items as those set forth in applicant’s identification of

2 National Football League Properties, Inc. and Pittsburgh
Steelers Sports, Inc., plaintiffs, v. Pittsburgh Brewing Company,
defendant (Civ. Action No. 97-0638, filed in the United States
District Court for the Western District of Pennsylvania, April 9,
1997).
Serial No. 75/006,702
6
goods –- namely, clothing items, such as hats and shirts.
Even if such is indeed the case, it is certainly entirely
too speculative to suggest that at some point in the future,
the Pittsburgh Steelers might well begin to use or seek to
register the term “Blitzburgh.”
Another troubling weakness of the refusal herein is
that while this term may have been popular among sports fans
for a year or two, the renown of such terms in sports is
often transient. With abrupt changes in personnel and team
performance, the record suggests that there was no longer
any reason for sports writers, team personnel or fans to
enthuse over “Blitzburgh.” It would appear that, at that
point, “Blitzburg” joined many other expressions as an
historic footnote, known only to the most serious of sports
trivia buffs. Hence, we find that even by the time the
evidentiary record in this case was closing (late in 1997),
there was a dearth of evidence to show that this term was
still of sufficient fame or reputation to support a finding
of a false suggestion of connection with the Pittsburgh
Steelers.
Given the record as reviewed above, we have serious
doubt as to the present fame of this persona as applied to
the Pittsburgh Steelers. However, in the event Pittsburgh
Steelers Sports, Inc., and/or the National Football League
Serial No. 75/006,702
7
Properties, Inc. believe they would be damaged by the Patent
and Trademark Office’s issuing applicant a federal trademark
registration for “BLITZBURGH” for these clothing items, they
will have an opportunity under Section 13 of the Trademark
Act to oppose registration of this mark. In such an inter
partes setting, a plaintiff could well present evidence not
available to the Trademark Examining Attorney during this ex
parte process.
Decision: The refusal to register is reversed.
T. J. Quinn
G. D. Hohein
D. E. Bucher
Administrative Trademark
Judges, Trademark Trial and
Appeal Board