Aaron Judge Blocks ‘All Rise,’ ‘Here Comes the Judge’ Trademarks

New York Yankees star Aaron Judge convinced an administrative tribunal to block clothing trademarks “Here Comes the Judge,” “All Rise,” and a design with judicial indicia.

Judge and and the Major League Baseball Players Association showed that various MLBPA licensees sold apparel with the marks clearly pointing to Judge before Long Island resident Michael Chisena filed applications for his intent to use them, the Trademark Trial and Appeal Board said. The board also rejected other arguments by Chisena, inclduing that the MLBPA-licensed merchandise’s uses didn’t function as a trademark.

Wednesday’s precedential opinion reaffirmed principles that generally allow sports teams and players to establish trademark rights on references to them on merchandise.

Words and logos on clothing are often deemed merely ornamental, meaning they will fail to function as a trademark. Chisena argued that purchasers of the various Judge merchandise didn’t see the claimed marks as indicators of who made them, but as ways for them to show support for Judge.

But ornamental elements can also serve as trademarks, the board said. Judge and the MLBPA—and Chisena’s own arguments—clearly established that the phrases and symbols served the function of identifying Judge as a secondary source, the board said.

“This public would certainly be familiar with the merchandising practice of a popular athlete sponsoring and authorizing fan memorabilia; and even the most naïve among them would be aware that merchandisers have to seek and gain approval, and then pay royalties, to market such merchandise,” the board said.

Judge broke into the major leagues as a rookie late in the 2016 season, and immediately rose to stardom. From the beginning, the media, fans, and Yankees played on his surname, the TTAB said. The MLBPA’s licensing arm began approving “Judgement Day” shirts as early as late 2016, and various “All Rise,” “Here Comes the Judge,” and other clothes before early July 2017, the board said.

Chisena , claimed he isn’t a professional sports fan and has never been to Yankee Stadium nor seen Judge play baseball. He said creating his marks—between 2012 and 2015, he claimed—stemmed from his interest in developing a new sports product and cross-marketing an improved batting practice tee with a baseball-themed line of clothing.

The board noted that Chisena said it was a coincidence that he applied for the marks—not meant to reference Judge—four days after Judge won the All-Star Home Run Derby on July 10, 2017.

100% That Judge

Chisena argued that, unlike his proposed marks, “Here Comes the Judge” in prior uses serves as “primarily merely a surname,” so it can’t be inherently distinctive. But one consideration in determining whether a term is merely a surname is whether it has other recognized meaning. The purchasing public clearly perceives “Judge” as a play on words referencing Judge and a court judge, the board said.

The board also rejected Chisena’s argument that “All Rise” is a nickname and can’t serve as a trademark, pointing to a case involving boxer “Ray (Boom Boom) Mancini.” But there the examples of use were limited to official programs sold at a boxing match, a leaflet, and newspaper articles, not as trademarks on goods being sold. A nickname can be a trademark if it identifies the source of a product to the public, the board said.

Chisena also argued Judge and MLBPA never intended to use his marks as trademarks, but the board said intent does not decide whether a designation functions as a trademark, but rather public perception.

The board also said Chisena’s argument that the Judge phrases and symbols failed to function as trademarks appears to be “conflating two types of failure to function refusals:" designs deemed informational and ones deemed ornamental.

Chisena raised the University of Kentucky’s successful thwarting of a “40-0" mark because it would just be seen as a reference to a perfect college basketball season. But that decision was based on 40-0 being a commonplace, widely-used expression that doesn’t point to a particular source.

Here the MLBPA-sanctioned use clearly points to a particular source, similarly to how the board ruled “100% That Bitch” pointed to the rapper Lizzo, the board said.

Administrative Trademark Judge David K. Heasley wrote the opinion, joined by Peter W. Cataldo and Christopher Larkin.

The case is MLBPA v. Chisena, TTAB, Opposition Nos. 91240180, 91242556, 91243244, 4/12/23.