Friday, June 23, 2017 | 2 a.m.
Marc-Andre Fleury and a handful of new Vegas Golden Knights slipped on gray home sweaters Wednesday night following the NHL expansion draft that transformed the team from concept into reality.
Emblazoned in the middle of the jersey is the team’s distinctive logo, its "V" tucked into the gold and black of a knight’s helmet. The Golden Knights began presales for those $200 sweaters — $265 if you want your name on the back — this week with the opening of The Armory team merchandise store in T-Mobile Arena.
Yet the Golden Knights name and logo still officially do not belong to the team, leading the franchise to advance this month the legal battle to own its trademark rights.
On behalf of the Golden Knights, attorneys for the NHL responded to the initial trademark refusal of the United States Trademark and Patent Office (USPTO) with a filing arguing the franchise’s name and logo will not be confused with the previous trademarks of a small New York college and a Florida university. The June 6 document composed by the league narrowly met a six-month deadline for response to the government’s Dec. 7 application denial.
Golden Knights spokesperson Eric Tosi declined to specifically comment on the matter, saying the filing speaks for itself, and referred questions to the league office because NHL attorneys prepared the response. NHL spokesperson Nirva Milord then declined to speak about the document, as did USPTO representatives.
Golden Knights President Kerry Bubolz, who also did not directly address the response, said the team expects a positive outcome on the matter.
Veteran trademark attorney Patrick Jennings of Pillsbury in Washington, D.C., reviewed the case and endorsed the team’s chances in an arena that typically favors the original trademark holder.
“Here the odds aren’t actually too bad,” Jennings said. “I’d say there’s a 50-60 percent chance of arguing around (the denial) — maybe a tad bit higher.”
Government sources familiar with trademark filings indicated that the USPTO usually addresses response filings within three weeks of receipt.
The 41-page response makes four core arguments rejecting the idea that the Golden Knights trademark will be confused with the College of Saint Rose or the University of Central Florida:
• Sports fans (and the general public) have long been accustomed to distinguishing between unrelated teams using the same or similar nicknames as trademarks.
• More specifically, sports fans (and the general public) have long been accustomed to distinguishing between "Golden Knights" and "Knights" marks for sporting events.
• Sports fans, by their very nature, are knowledgeable about the games they choose to watch and attend.
• The marks differ materially in appearance, sound and commercial impression.
“It is inconceivable that a person seeking tickets to watch a College of Saint Rose sports team (none of which play hockey), or the Middle Georgia State University Knights or the University of Central Florida Knights, inadvertently would purchase tickets to a Las Vegas Golden Knights professional ice hockey game, or vice versa,” the response reads.
To underscore those points, NHL attorneys cited 43 team nicknames that are shared between college and professional teams, including seven in hockey. They also listed 20 organizations with "Knights" in their name, digging down as far as youth sports groups. Jennings referred to this as the “crowded field” argument.
“Because they’re all registered and peacefully coexisting, we should be able to do the same,” Jennings said of the line of thinking. “That’s pretty common.”
Jennings cautioned that the appearance of two parties with the same trademark getting along does not necessarily mean they are happily doing so. He cited coexistence agreements as common in such situations: “One side does XYZ and stays in this sandbox, the other side does ABC and stays in our box, and our boxes won’t ever cross.”
Simply buying off the other trademark holder generally does not happen either, Jennings said, with small sums ranging from $5,000 to $15,000 changing hands.
“In the grand scheme of things, people don’t buy each other off in trademark land very often,” Jennings said. “It’s pretty unusual for money to change hands unless you’re going to make an outright purchase of a mark.”
The Golden Knights do not need an official trademark from the federal government to use their name and logo in any capacity. Proceeding without trademark protection could encourage the sale of knockoff Golden Knights merchandise and make it more difficult for the team to enforce any legal action against counterfeiters.
“They could use the name without registrations if they wanted to do that,” Jennings said. “Smaller or midsize entities will typically take that approach. My guess would be that the NHL wouldn’t take that tack.”
If the USPTO denies the Golden Knights response, it likely will represent a final decision, though there are some exceptions. Jennings suggested team representatives then could contact other trademark holders to inquire about a coexistence agreement or other form of arrangement in which the Golden Knights could use their name and logo without reprisal.
Interestingly, the response utilizes the team’s name as the “Las Vegas Golden Knights” although the franchise officially calls itself the Vegas Golden Knights.
“These two cited applicants are starkly different in sight and sound from Applicant’s four-word Las Vegas Golden Knights mark, rendering confusion unlikely,” the filing reads.
In explaining the team’s original trademark application, the response illuminates some of the reasoning behind the naming of the Golden Knights.
“The presence of ‘Las Vegas’ in the Applicant’s Mark infuses it with excitement and energy. The term ‘golden’ is a nod to Nevada’s status as the largest producer of gold in the United States, and is also a tribute to the golden hues of the Las Vegas terrain,” the response reads.
The Golden Knights begin their regular-season schedule at Dallas on Friday, Oct. 6.