A football fan sits down on the couch late on a Saturday night and turns on ESPN to watch the day’s college football highlights. The program is what one would expect—a collection of perfect throws, unbelievable catches, and bone-crushing tackles taking place on a large expanse of green grass or turf. Then, as the program shifts to a new set of highlights, the field suddenly turns blue. A less experienced viewer may think the television is malfunctioning, or assume that ESPN is employing some type of special effect. In fact, these particular highlights are from a Boise State home game at Albertsons Stadium, famous for its bright blue playing field.
The blue turf at Boise State (or “The Blue”) was introduced in 1986. Over the years, it has become synonymous with the school’s extraordinarily successful football program. As such, Boise State, led by Director of Trademark Licensing Rachael Bickerton, decided to pursue copyright registration for its blue turf football field. Though the trademark office rejected the original application in 2008, a second attempt was accepted in 2009. As stated in the trademark registration, the mark is “for entertainment purposes, namely, the presentation of intercollegiate sporting events . . . rendered in a stadium . . . and through the media of radio and television broadcasts” and consists of “the color blue used on artificial turf in the stadium.”
While trademark protection of a blue football field may seem like a stretch, United States copyright law does provide grounds for Boise State’s legal argument. The United States Patent and Trademark Office (USPTO) defines a trademark in 15 U.S.C. § 1127 as, “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” Shapes, sounds, fragrances, and colors are also eligible for trademark protection. When the blue field appears on the ESPN highlight program, football fans across America feel a high level of excitement because they know, even without the commentators telling them, that they are about to see the highlights of the Boise State Broncos, one of the dominant college football teams in the country. Thus the blue football field can correctly be described as a design that “distinguishes the source” of the product being presented.
However, a recent article by Sam Fortier in The New York Times reveals that Boise State has expanded its trademark from blue fields to all non-green fields by citing a legal doctrine called initial interest confusion. In other words, Boise State argues that another college or professional team should still be required to obtain a license from Boise State if it wants to plant, for example, a red field. In order to understand this argument one must understand the doctrine of interest confusion.
Generally, a trademark protects the specific mark described in the registration document. However, there are instances when a competitor’s actions cause temporary confusion that must be dispelled before the purchase or consumer decision is made. The first case to reference this concern with initial interest was Grotrian v. Steinway & Sons, 523 F.2d 1331 (2d Cir., 1975). In Grotrian, the piano company owner Steinway sued Grotrian for selling pianos under the trade name “Grotrian-Steinweg” in the United States. The court acknowledged that piano purchasers are generally considered to be careful buyers who would recognize the actual difference between the piano brands before the purchase is completed. However, the court further stated that, once misled into an initial interest to purchase the piano, a “potential Steinway buyer may satisfy himself that the less expensive Grotrian-Steinweg is at least as good, if not better, than a Steinway.” In essence, the court recognized that a trademark’s ability to attract the initial attention of a consumer represents the real value that must be protected for its owner.
Boise State argues that the “initial interest doctrine” allows the school to extend its trademark from blue football fields to all non-green fields. The university asserts that when a football fan watches or reads about a football game on anything other than a green field, the initial reaction is to associate the game as one being played with the Boise State Broncos. This initial association, claims Boise State, is what attracts the fan to the game. Though legal pundits have met this position with much skepticism, the Boise State argument does have a point. When a television viewer sees the blue field appear on the screen, they know that Boise State is playing. If they were to see an orange field, they might be fairly certain that it is not Albertsons Stadium, but there would certainly be a moment where they would think, “Wow, which team aside from Boise State plays on a non-traditional field?” That moment, with that particular association with Boise State, would likely lead to an increased interest in the game.
Indeed, it could be argued that the viewer’s attraction to the game would simply have been a result of the orange field and have nothing to do with the viewer’s familiarity with Boise State’s blue field. However, the counterargument is that the recognition of Boise State’s blue field is what gives credibility to any non-green field. A non-green field is associated with a professional game because of Boise State; if not for the precedent of “The Blue,” viewers would only wonder at which amateur team would need to pull such a colorful publicity stunt, and not actually be interested in the game. This represents value, and thus may justify Boise State in its argument to expand its trademark to all non-green turf.
Adam Ofman is a J.D. candidate, 2018, at NYU School of Law.
