One school’s team spirit is another’s broken trademark

It hasn’t been the football season at Eastern Washington University that most anticipated. The defending national champions lost their first four games, the lineup has been gashed by injuries and with just four games at Roos Field, well, Eags, we hardly knew ye.

But on the eve of the home finale Saturday against Portland State, they’re inching back toward the Top 25 and still in the playoff hunt.

And, best of all, they didn’t have to paint their year-old red turf green.

Thanks to the, uh, magnanimity of their friends at Boise State University.

It was barely a month after the Eagles triumphed over Delaware in that stirring Football Championship Subdivision title game that the fax machine at EWU’s athletic department spit out a missive from Rachael Bickerton in the office of BSU’s general counsel.

“Congratulations on your winning football season,” it opened.

Hey, athletic director Bill Chaves undoubtedly thought, what a nice gesture. Judy, have some flowers sent to Boise to congratulate them on that Maaco Bowl win.

“Your addition of red artificial turf in the stadium is technically trademark infringement,” it went on.

Judy, hold the flowers. Get the lawyers.

In her letter, Bickerton asserted that by playing on red turf, Eastern was using a similar mark (“a color other than green”) to deliver the “same goods and services” as Boise State does on its trademarked blue rug. Yes, the Broncos registered their turf (No. 3,707,623) in 2009, though it was first placed in service in 1986.

“People may erroneously conclude, based on the notoriety of Boise State’s blue turf,” she wrote, “that EWU is somehow attempting to capitalize on the fame and novelty associated with using a non-green turf in its stadium, a practice that was first employed by Boise State.”

Yeah, right. How could anyone possibly get that idea?

“There is no doubt that one of Boise State’s claims to fame has been their blue turf, and like it or dislike it, it has certainly brought them a tremendous amount of notoriety,” Chaves said on Jan. 27, 2010, when EWU alum Michael Roos’ $500,000 pledge was announced. “In a similar vein we have a tremendous opportunity at Eastern to do the same by differentiating ourselves with the red turf while providing a superior playing surface.”

Oh, that.

So it wasn’t a particularly original idea. Neither was coloring over something green with blue. Every 6-year-old with a box of Crayolas has done that.

In any case, Bickerton went on to write that the school needed to do something to protect its rights – either demand removal of EWU’s blood stain or grant a trademark license. Which it did – a “limited, revocable, non-exclusive” license, though if you’re EWU that’s like opening a package on Christmas and finding the sweater you wore yesterday inside. Besides, protecting rights is a two-way street.

So Deborah Danner, the Washington assistant attorney general assigned to represent EWU, wrote back with a couple of salient observations. Those most notable of those was that Boise’s trademark registration expressly states that “the mark consists of the color blue.”

Not every color other than green. Blue.

Nor is EWU likely to be confused with Boise State, which is located in an actual city, rubs poll-bows with the likes of LSU and Alabama and has a consummate gasbag as its CEO.

Asked for clarification, Bickerton cheerfully replied by email:

“This is no different than if a university planted a row of shrubs next to its field and started calling its games “Between the Bushes” in imitation of Georgia’s “Between the Hedges.” In business terms, it is the same as a parcel delivery company using all green on its trucks, packaging and employee uniforms and saying ‘what green can do for you’ to imitate what UPS has done with the color brown.”

Uh, OK. So do the other parcel drivers deliver in the buff? Can they wear red clothes? Can the trucks be yellow? Can they have trucks? Can they have a slogan that says, “Call us to deliver your packages?” Does UPS own all parcel delivery colors other than postal blue? Should DHL brace for a lawsuit?

C’mon. We’re talking about plastic grass.

This is obviously a circumstance where branding, the most hateful term now in use in athletics, has run amok. Or perhaps not far enough.

For instance, is there something preventing EWU coach Beau Baldwin from trademarking the formations and schemes in his playbook? Then, should Boise State’s Chris Petersen order up a third-down bubble screen in the next game that mirrors one in Baldwin’s loose-leaf, Eastern can have its lawyer send a friendly letter to BSU, generously granting the Broncos a license to run it in the future.

Is that apples and oranges? Or red and blue?