THE BOOK--Playing The Percentages In Baseball

The other way to acquire priority is to register the mark with the PTO with a bona fide intention to use the mark in commerce. Unlike use of a mark in commerce, registration of a mark with the PTO gives a party the right to use the mark nationwide, even if actual sales are limited to only a limited area. This right is limited, however, to the extent that the mark is already being used by others within a specific geographic area. If that is the case, then the prior user of the mark retains the right to use that mark within that geographic area; the party registering the mark gets the right to use it everywhere else. So, for example, if I register the mark “Broadway” in connection with the sale of pizza, the existing “Broadway Pizza” in Boston retains the right to use the name in Boston, but I get the right to use it everywhere else.

http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#4

Ok, if I’m reading this right, it says that any non-registered user of a mark gets to continue to use his mark.  The registered users gets to use it in the geographic locations not already covered by the non-registered users.

This applies to commerce.

So, Lee Panas used to have something called the “Sabermetric encyclopedia”, which covered the whole country.

Phil has a site called “Sabermetric Research”.  Does he have any adds?  He needs to get on that to cover US and Canada.

Tangotiger.net has ads, so that protects me?

“Deep Focus”: are you kidding me?

ESPN is one of their clients, along with EA:
http://www.deep-focus.net/

My limited understanding patent law as it applies to phrasings and new terms (learned from an undergrad history class...not the best source) is that Bill James has priority to claim that term as it applies to baseball.  Another firm can trademark the term if it’s the firm’s name or a product’s name and Bill James doesn’t trademark it.

Seems like it would be impossible for Deep Focus to get away with it, but I already don’t use the term so it’s ok with me.  I prefer to use ‘analytics’

Wikipedia has had a “Sabermetrics” article since 2001. It gives a definition and the origin of the term. But according to Hahvahd Law School,

“4. How do you acquire rights in a trademark?

Assuming that a trademark qualifies for protection, rights to a trademark can be acquired in one of two ways: (1) by being the first to use the mark in commerce; or (2) by being the first to register the mark with the U.S. Patent and Trademark Office ("PTO"). 15 U.S.C. � 1127(a).”

http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

I knew a lawyer once who told me that you can’t trademark something that was accurately descriptive of the product.  So if your product is licorice, you couldn’t trademark “Chewy Licorice” but you could trademark “Chewee Licorice” or “ChewChew Licorice” or “Red Ripe Licorice” (assuming the licorice wasn’t actually red and ripe).

Since “sabermetrics” is actually a word, I would assume that you can’t trademark “Sabermetric research” if your product is research, but you could trademark “sabermetric licorice” if your product is licorice.

That was Canadian law.

Anyway, from Tango’s comments, I guess it depends what this company is trying to trademark the word for.  If it’s in connection with a brand of licorice, I don’t have a problem with it, really.  If it’s in connection with real sabermetrics, then they aren’t allowed to trademark it, according to my friend.

Don’t know if this is relevant:

“I hereby release any and all of my formulas, theories, and other systems of analysis to any other analyst who wishes to use them and to call them by name (runs created, value approximation method, etc.) either for private or economic use, even by Elias should they so desire.”

Bill James, 1988 Abstract, p. 235

Forgive my ignorance. But isn’t this like trying to trademark the word mathematics? Sabermetrics is a field of study, not a brand.

Similarly, I can’t trademark the word baseball, but I can trademark Major League Baseball.

If Deep Focus wants to trademark sabermetrics for a product, say “sabermetrics musings magazine”, then who cares. The actual word though, that is a field of study and isn’t trademarkable because it doesn’t distinguish a good or service.

I just took a intellectual property class. In order to trademark you need to show the following:

Distinctiveness
Non-functionality
First use in trade

It isn’t distinctive. It isn’t the first use in trade. I think it passes the non-functionality test but I’m not a lawyer (yet).

Bill James weighs in.

http://www.wqad.com/sports/sns-ap-bba-red-sox,0,6426985.story?track=rss

"So, Lee Panas used to have something called the Sabermetric encyclopedia, which covered the whole country.”

Someone just e-mailed me wanting to know what my “Sabermetric encyclopedia” was about.  I believe you were referring to Lee Sinnis. 

Lee Panas