Fact check: Did Margaret Brumm snatch rights to the new MSHS nickname?
MARQUETTE, Mich. (WJMN) — A Marquette woman has filed to trademark Marquette Senior High School’s newly-chosen nickname. We spoke with two lawyers in the field to find out what that could mean for the school.
On Monday, word of the move came in the form of an email to Local 3 from Margaret Brumm, who is also a candidate running against State Rep. Jenn Hill for her seat in the 109th District.
The email—also sent to the MAPS school board—reads in part,
Now that you are aware that I have property rights in these names, I will leave it to your attorney to advise you of the risks the School Board will take if the School Board decides to change the name without first obtaining the property rights that I own. I look forward to beginning negotiations with the School Board with respect to my property rights in the proposed nicknames.
Email from Brumm to media outlets, school board
Her claim comes after over four years of the district trying to depart from the “Redmen” nickname, which was generally found to have become an offensive reference to Native Americans after its historical origin stemming from the red sweaters worn by students.
It’s official: MSHS students are now ‘The Sentinels’
Neither the MAPS school board or Brumm have responded to requests for comment on Brumm’s announcement, leaving the community to wonder what that means for people ready to embrace the new nickname.
What we know
Margaret Brumm filed for a trademark on the phrases “Marquette Sentinels,” “Marquette Reds,” and “Marquette Red Jackets” as printed specifically on tee-shirts. The claim was filed on Jan. 19, the same day the school board posted the names as finalists.
In all, the filings cost her $750 for all three potential nicknames.
The following Monday, Brumm sent an email to the media and the school board alerting them of the action, saying in part “I look forward to beginning negotiations.”
Legal experts weigh in
Local 3 spoke with practicing Wisconsin trademark attorneys Elizabeth Russell of Russell Law and Seep Paliwal, an attorney with Stafford Rosenbaum. Both say Brumm’s claim that she has property rights to the new nickname is likely incorrect.
“In the United States, a person does not acquire trademark rights just by filing an application for registration,” said Russell.
The U.S. Patent and Trademark Office’s website clarifies this, saying that rights for trademarks are established by using it, and registering a trademark is an effort to strengthen those rights on a national level.
Marquette to no longer use “Redmen”
Beyond that, Russell explained that a trademark—as opposed to a copyright or patent—is a tool for consumer protection. Its primary use is to tell the consumer where the product is coming from.
“Among the millions of rules, what we’re getting into is one that says it’s not trademark use if it’s what they call ‘merely ornamental,’” Russell said. “In other words, if you just print some words on the front of a shirt, that’s typically not trademark use because it doesn’t tell consumers where the shirt is coming from.”
Russell’s insight means that for Brumm’s filing to have any legs, the Marquette Sentinels wording would need to reasonably refer to the company that produced it. Paliwal specified that the company would also need to have done business across state lines.
“I don’t know if she has some magical component,” said Paliwal, “but from what I can see it would be very difficult for her to prove that the school’s use of the nickname on their board in front of the school or on their jerseys prevents her from being able to sell tee-shirts that say ‘Marquette Sentinels’ online.”
Little evidence for a claim
Local 3 asked Brumm on Wednesday if she was selling (or planning to sell) Marquette Sentinels tee-shirts. She declined to comment, and we discovered no way to purchase a shirt featuring the wording online.
Some trademarks can be filed preemptively. However, Brumm filed under Section 1(a) which indicates current use of the trademark in commerce at the time of filing.
Brumm did not provide a web page URL in her filing, but did claim that she had used all three names “at least as early as 1/19/2024.”
Russell said another element that could see scrutiny from an examiner is the fact that Brumm submitted digital renderings of shirts bearing the nicknames instead of photos of real items as examples of specimens.
The USPTO elaborates on this, saying submitted specimens must “be a real example of how you use your trademark in commerce in providing your goods or services (not a mock up, printer’s proof, digitally altered image, rendering of intended packaging, or draft of a website that shows how your mark might appear).”
Paliwal noted that the filing occurring on the same day as the school board’s announcement also weakens the claim. “The fact that it was filed five days ago… I just have seen Examining Attorneys issue office actions for so much less… if the Examining Attorney doesn’t pick it up, then the school board’s legal counsel has a pretty strong position in terms of filing in opposition.”
We asked Russell if she has seen any similar situations in her line of work. “I don’t want to pass legal judgment on what’s going on in this case, but I will just say yes… and let me say that a lot of times when situations like this arise, in my experience, it’s very often because one side or the other misunderstands how trademark law works.”
“Trademark Trolls”
Paliwal said the effort to trademark the new nickname fits into a trend that lawyers in the field have seen before, and have their own nickname for the act; being a “trademark troll.”
“You’ve probably heard it in the context of patent trolls or copyright trolls,” said Paliwal. “This person’s only motive is ‘how do I profit in some capacity?’”
One popular example of this made national headlines when the Washington Commanders football team began the process of changing their name.
Hypothetically, what could happen?
Both attorneys agree there is still more about this situation we don’t know, but Paliwal says it is unlikely for it to spell trouble for the district.
Trademarks are currently taking about a year to register. If Brumm did manage to secure a trademark for “Marquette Sentinels,” Paliwal says Brumm would then have to sue MAPS in Federal court if she wanted to seek damages or stop the school’s use of the nickname, claiming that the school’s use directly harms her tee-shirt sales.
Taking it to the courtroom could spell trouble for either side. “It’s a hurdle for a lot of folks,” Paliwal said. “I have had clients who have been in completely reasonable situations where they are in the right, but just can’t afford to fight it.”
But even if it all went that far, Paliwal says she would still expect the judge to grant a motion to dismiss the case early in the process.
Where are we now?
Right now we don’t know what Margaret Brumm hopes to get out of a negotiation with the school board, or if she has a stronger trademark claim than it appears.
Brumm plans to speak on the topic Thursday afternoon.
Local 3 will continue to seek answers as the Marquette Senior High School continues its rebranding process.
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