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SBJ/June 18 - 24, 2001/This Weeks Issue
'Green Monster' name case relies on witnesses' availability, reliability
Published June 18, 2001
It took three days of deliberation last month for a federal jury in Boston to decide that trademark rights in the phrase "Green Monster" belong to the Boston Red Sox.
Three days? Who else could claim ownership in the nickname of Fenway Park's famed left-field wall?
Meet the D'Angelo brothers: Agostino, Paul and Peter. From 1986 to 1993, the hustling entrepreneurs sold T-shirts from a large hand-painted cart parked outside Fenway Park. A "Green Monster" shirt they designed was the brothers' hottest model, racking up sales of about 80,000 in the seven years, according to their lawyer, Joel Barshak.
In 1993, the Red Sox began producing their own "Green Monster" shirts. Soon, they'd used their superior merchandising and marketing muscle to nearly put the independent T-shirt vendor out of business.
A year later, the D'Angelos filed a lawsuit against the Red Sox in U.S. District Court in Massachusetts claiming trademark infringement in "Green Monster." In their suit, the D'Angelos argued they were first to make sustained use of "Green Monster" on T-shirts. As the first, they argued, their rights should trump those of the Red Sox, even though the team obtained a formal trademark for "Green Monster" in 1992.
Evidence of "first use" is a key factor in deciding trademark rights, so the Red Sox's attorneys faced a major challenge. Team lawyer Daniel Goldberg hit on the solution when he learned that the Red Sox had sold "Green Monster" novelties as early as the 1970s, a decade before the D'Angelos began hawking their shirts. The problem was proving it to a jury.
It would have been a simple matter for Goldberg to parade in front of the jury box with a "Green Monster" T-shirt circa 1970s — if he had one. A search of numerous memorabilia shops and Web auctions failed to turn up any.
"We're talking about having saved a T-shirt from the late 1970s or early '80s. It wasn't surprising we weren't able to locate any of the product," the team lawyer said.
Business records showing T-shirt orders and sales also couldn't be located. A fire in 1988 destroyed them, Goldberg said.
So, the Red Sox relied on testimony from witnesses, including former concession workers, ex-ballplayer Rico Petrocelli and team broadcaster Ken Coleman. Petrocelli testified he bought "Green Monster" shirts for his four sons at the ballpark before the D'Angelos began their business, Goldberg said. Others said they remembered "Green Monster" pennants, pins, buttons and other knickknacks for sale at Fenway Park.
The jury bought the Red Sox's case. Barshak, lawyer for the D'Angelo family, has his doubts.
He said the Red Sox tried to dazzle the jury with a lineup of star witnesses. "I'll guess that the Red Sox felt if they put famous, respected people on the stand like Mr. Petrocelli to say that 'Green Monster' had been used continuously by the team, it would be hard not to believe them," he said.
And Barshak has a problem with the jury instructions, which he claimed muddied the issue of whether a few, isolated uses of "Green Monster" by the Red Sox was enough to give the team trademark protection. He said his clients are weighing an appeal, though "It takes a lot of effort for little guys to go up against a big corporation."
It's not the first time a T-shirt vendor has tangled in court with a sports team or stadium landlord. In 1992, the Maryland Stadium Authority sued a T-shirt vendor who was hawking shirts that read "Camden Yards Means Baltimore."
The vendor, Roy Becker, began selling his shirts in July 1991, almost a year before the Camden Yards park opened and several months before it officially got its name. Becker sold the shirts at several locations, including Memorial Stadium, where the Orioles were playing their final season.
Becker argued that the authority's claim that it owned the Camden Yards site where the stadium was being built wasn't enough to create a trademark because the authority hadn't yet sold shirts or other merchandise with the Camden Yards name. And his lawyers pointed out that on the shirts there wasn't even a mention of a new stadium.
But the court rejected that argument. And in an opinion that reads like a page out of a Roger Angell New Yorker piece, U.S. District Judge J. Frederick Motz wrote: "For any reasonable person to have made any association other than baseball with the Camden Yards name would have been as unlikely as Boog Powell hitting an inside-the-park home run, Paul Blair playing too deep, Brooks Robinson dropping a pop-up ... or Cal Ripken Jr. missing a game because of a cold. It is of such stuff that summary judgment is made."
Mark Hyman (Balthyman@aol.com) is a lawyer and a free-lance writer.