When you start a business, there will be problems.
What if there are no customers? What if a competitor comes along and beats you at your own game? What if your idea just isn’t very good?
These are all things you might expect. What happened to Odysseas Papadimitriou is something else entirely. The founder and CEO of a website called WalletHub that lets consumers compare financial services like mortgages and credit cards, Papadimitriou tends to get a little worked up when something seems ridiculous, illogical, or worse.
So, when he tried to register WalletHub’s trademark, he wasn’t pleased with what happened next. He found out from his lawyer that his trademark–a white single block letter W set inside a green square–was being disputed.
By Major League Baseball.
Trademarks are supposed to be considered not just on the basis of what they look like, but what the businesses registering them actually do. If either is substantially similar, and it’s likely to cause confusion to a general consumer about which business is which, the trademark is denied. However, if the businesses are different enough, it doesn’t really matter if their trademark is the same. A career placement service, an insurance auditor, and a business selling new, used, and refurbished airplane engines can (and, in fact, do) all have trademarks on a very similar stylized “A.” No one looking for refurbished airplane engines, the thinking goes, would mistakenly contact an insurance auditor.
Papadimitriou imagined this same thinking would apply to his case. “People aren’t idiots,” he says, sounding agitated. “We’ve been in operation for two years, and no one’s confused us with a baseball team. I’m pretty sure no one has gone to [MLB] and asked them to compare credit cards or mortgages.”
Major League Baseball, meanwhile, claims his mark is too similar to two of theirs, also both block Ws: one a flag the Chicago Cubs fly when they win a game, and the other a logo last used in the 1920s by The Washington Senators, a baseball team perhaps most famous for its major role in the 1955 Broadway musical Damn Yankees. While the MLB still sells throwback hats and jerseys featuring the Senators’ various logos, that team hasn’t really existed since 1960, when it moved states and became the Minnesota Twins (another iteration of the team existed briefly beginning in1961, before also leaving to become the Texas Rangers).
“It was just completely crazy,” says Papdimitriou, who also described the MLB’s attempt to block his trademark as “complete bullying” and “laughable.” He fired his first lawyer when she recommended that he accept a settlement offer that would have forbidden WalletHub from using any form of a single letter W in any future trademark application. He’s now two years deep into a trademark dispute with one of America’s largest sports leagues.
“You can’t own a letter,” he insists.
In a way, he’s right. But in a way, he’s very, very wrong.
Single letters are among the most popular trademarks registered in the United States. Each letter of the alphabet has, at a minimum, hundreds of trademarks. There are, for example, over 2,000 trademarks of the letter S, making it the most popular. There are 1,102 Vs, 1,100 Es, and 1,816 As. Pity the lonely Y, with only 229. For comparison, other common words have far fewer marks: “me” has 97, “cat” has 72, and “extreme” has only 42.
W is solidly in the middle of the letter pack, with 1,081 trademarks, from firms including an Illinois insurance company, a South Carolina business that makes innovative leather pistol holsters, and a man from California making a Kickstarter-funded surfing documentary.
The agency tasked with managing this alphabetical soup is the United States Patent and Trademark Office (USPTO). They review all applications, and it’s “pretty common” for them to challenge a trademark, says Tom Wilentz, a New York patent attorney with 15 years of experience. There could be a conflict with another mark, or a question about if the mark is even registerable at all, he said.
According to figures supplied by the USPTO, in 2014 there were more than 455,000 new trademark applications, but only about 279,000 new registrations. At the same time, there were only about 5,500 trademark disputes between parties. This means the USPTO rejected over 170,000 applications out of hand.
To stand out from the crowd and get approved, trademarks of single letters come in a dizzying variety of shapes, many of them almost unrecognizable as letters. Take just a few of the 1,930 trademarks for the letter M. Monica’s Bridal has a showily swooping version which looks like it should be stuck on top of the gate of a mansion in a cartoon. Michelin has a gray square whose many lines are actually dozens of tiny Ms. An automotive parts company called Wheel Pros has a series of vertical lines, circles, and arches it for some reason chose to register as an M. Then there’s others, like MagnetoSpeed, whose trademark is a stylized, blocky M. Not entirely unlike WalletHub’s W turned upside down.
Once your trademark application has been approved by the USPTO, it’s opened up for other trademark holders to dispute. While the USPTO does not track trademark disputes specific to individual letters, according to Wilentz, their registration is uniquely difficult and fraught for one reason. “There are generally a lot of them,” he says. “It’s not as easy to distinguish a trademark that consists only of one letter from other trademarks, as opposed to trademarks that consist of an entire word, or even two or three words. You have a lot more to hang your hat on.”
Still, disputes of this kind are a relatively rare occurrence: only about 1% of trademark applications in 2014 were disputed between parties. Even in cases where you might think there would be an obvious dispute, there often isn’t. In a blog post about his situation, Papadimitriou outlines 18 different marks that are all currently registered and in use, despite being almost identical. These include the logos of Walgreens and the current D.C. team, The Washington Nationals, both highly stylized Ws, which look extremely similar.
Of course, getting a trademark approved by the USPTO doesn’t mean you won’t find yourself in court for trademark infringement. Piragash Velummylum is a former Amazon engineer who in 2013 raised $1.8 million for a startup he’s leading, a Snapchat competitor called Wire. Now, he’s involved in a trademark lawsuit with a company called California Domain Name Construction, who registered the word “wire” and a single letter W with the USPTO after Velummylum announced his venture but before he registered any trademarks.
“Defendants took a calculated risk in not following the established ITU procedures,” reads the complaint against Velummylum and his business partners, “and now must answer for their infringing conduct, which will include an injunction barring the conduct of future business under the ‘WIRE’ name and the payment of tens or hundreds of millions of dollars in damages.” Velummylum and lawyers for California Domain Name Construction did not return requests for comment; the company itself, ironically, does not seem to have a website.
The crux of the MLB’s argument against WalletHub is that the new company’s block Ws are too similar to MLB’s block Ws. To a layperson, they look identical, aside from the colors. But, then again, so do many other, already registered block Ws, including one held by VaporWave, a vaporizer company. Would an expert see the difference?
Ksenya Samarskaya is a font specialist, and a former employee at superstar type company Hoefler & Frere-Jones (which famously dissolved in acrimony in 2014). Did she agree that, at least on this level, the MLB had a point? Are these Ws the same?
“There are no two identical W’s in the mix,” Samarskaya said via email. “The Washington Nationals W is more condensed than the others. The Chicago Cubs W flares a bit at the end of the out-strokes. We’re obviously ignoring color in this lawsuit, but I’m curious as to [how] the drop-shadow on WalletHub’s logo [affects the dispute].” Ironically, she points out, fonts themselves are impossible to trademark (only the software used is copyrightable).
The MLB is showing signs that it understands it has stepped into an existentially dicey dispute. “We believe we’re close to a resolution,” says MLB spokesman Matthew Gould. “We’re interested in resolving it amicably.”
Still, they’re due in trademark court next month, and no settlement is imminent, according to Papadimitriou. He’s happy to let a judge decide.
“It’s not even a question,” he said. “The burden is on them to show confusion. If they can’t show that, we would win the case. Then they can go on and bully someone else.”
Wilentz is more philosophical–and has many more questions–about the value of trademarking a single letter.
“What’s the point?” he asks. “Even if you do get it to be your registered trademark when there’s 19,000 other ones, or whatever? How are you going to differentiate yourself in the marketplace from all the other ones? Even if you can get it as a registered trademark, what value does it have?”