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To Be Cubnoxious You Need More Than Subjective Intent

Tim Zarley \ May 28, 2019

 

On January 19, 2016, Ronald Mark Huber, filed an intent-to-use trademark application for the mark CUBNOXIOUS for use with “shints.”  The Chicago Cubs Baseball Club, LLC was not amused and filed an opposition with the Trademark Trial and Appeal Board claiming that Huber lacked a good faith bona fide intent to use, and that Huber’s use was likely to cause confusion with at least one of the thirty-one registrations owned by the Baseball Club.

Because Huber had no documents, other than the application itself, to support his bona fide intent to use, the Board found in the Baseball Club’s favor.  Even if this had not been the case the Board still would have found against him. Finding the goods, trade channels, and class of customers to be the same, combined with the strength of the Baseball Club’s mark and the similarity of Huber’s mark to the Baseball Club’s, the Board found there was a likelihood of confusion.

In evaluating the similarity of the marks, the Board noted that while the connotation of the term “Cubnoxious” typically would not be flattering, the term could also suggest a sports team or their fans who seek to provoke opposing teams and their fans, embracing an offensive or obnoxious reputation.  

The Board did not disclose if they had been to a Cubs game, but cited several articles that supported the connotation.  One example was an article from the Chicago Daily Herald bearing the headline “Cubs Fans Obnoxious?” Another article form the Chicago Tribune reported that a Cincinnati Reds broadcaster has “ripped” obnoxious Cub fans.  Even a Yelp user review of an event at a Chicago park referenced an attempt to avoid “Cubnoxious Drunkards.” These articles were helpful for the Chicago Cubs Baseball Club, as many of their fans, whose behavior is considered obnoxious, helped them protect their intellectual property.

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