— Ben Simmons (@BenSimmons25) January 21, 2017
By Joseph Baublitz, Staff Writer
A new hashtag has been trending with Pennsylvanians and NBA fans to celebrate the Philadelphia 76ers’ wins, #RaiseTheCat. This celebration has become viral. A company, however, has filed for a trademark on the hashtag, which may chill any efforts to raise money for an animal charity.
A rallying cry for 76ers fans on Twitter, #RaiseTheCat was inspired by 2016 No. 1 overall pick Ben Simmons, who live-streamed Instagram videos where he would put one of his Savannah cats on his head. Sixers super-fan Dennis Grove coined the term to demand Simmons to continue to do this.[1] The Sixers fan base amplified the term to become a celebration for Sixers victories — with fans flooding Twitter with pictures of themselves holding their feline friends above their heads.
As the campaign’s popularity increased, Grove partnered with an apparel company that would donate the proceeds of its #RaiseTheCat branded shirt to Philly Paws, an animal welfare society in Philadelphia. The rallying cry has been used to help animals in need, but not everyone has this donative intent. The NBA store, whose clothes are created by Fanatics, started to sell the shirt for profit. This received immediate pushback from NBA fans who saw through this profiteering when others were being charitable; the shirt was quickly removed from the store.
Around the same time, fans learned that sporting card company Upper Deck filed a trademark on “#RaiseTheCat.”[2] This phenomenon was not created, nor was it popularized in any way by Upper Deck. The question is whether it has the right to file a trademark on the phrase and if Grove has any standing to oppose it.
When filing a trademark, the applicant must adhere to some requirements. Under the Trademark Federal Statutes and Rules, the requirements are:
(1) The name of the applicant;
(2) A name and address for correspondence;
(3) A clear drawing of the mark;
(4) A listing of the goods or services; and
(5) The filing fee for at least one class of goods or services, required by § 2.6.[3]
The office will deny any application that does not have this information; the requirements, however, do not mention the ownership of the mark. After this application is filed, the applicant must file an additional verified statement. A verified statement must include, in part, that “the applicant believes the applicant is the owner of the mark; that the mark is in use in commerce; that to the best of the signatory’s knowledge and belief, no other person has the right to use the mark in commerce.”[4]
With this information, an inquiry can be made about whether Upper Deck can verify #RaiseTheCat as the “owner of the mark.” Grove has used this mark “in commerce” by selling the shirts for charity. Upper Deck, on the other hand, did not. If the trademark office does in fact accept this application, however, Grove still has hope. He would need to file an opposition within 30 days.[5] Anyone can file an opposition if he believes that he “would be damaged by the registration of a mark on the Principal Register.”[6] When filing the opposition, it “must set forth a short and plain statement showing why the opposer believes he, she or it would be damaged by the registration of the opposed mark and state the grounds for opposition.”[7]
Unfortunately, this process may take months, possibly chilling the potential for Grove to sell shirts on behalf of Philly Paws. Although it is unclear if the application will be granted, Upper Deck owning the rights may be an example of a corporation profiteering off a fan’s funny and charitable idea. Upper Deck tweeted that there was no “malicious intent”[8] with the application, but we will soon find out.
For now, let us all just find a cat, raise it, and celebrate Sixers’ victories.
Sources
[1] #RaiseTheCat, #RaiseTheCat (n.d.), https://www.raisethecat.com.
[2] #RAISETHECAT, Inventively (n.d.), https://inventively.com/search/trademarks/87314582.
[3] 37 C.F.R. § 2.21
[4] 37 C.F.R. § 2.33
[5] 37 C.F.R. § 2.101
[6] Id.
[7] 37 C.F.R. § 2.104
[8] Upper Deck, Twitter (Feb. 15), https://twitter.com/UpperDeckSports/status/831734007251484672.
