Rally Squirrel may have left the field, but trademark dispute lives on

2013-10-25T00:15:00Z 2013-10-27T09:08:43Z Rally Squirrel may have left the field, but trademark dispute lives onBy Kavita Kumar kkumar@post-dispatch.com 314-340-8017 stltoday.com

Remember the Rally Squirrel?

The Cardinals could have used a glimpse of the good luck charm during the disastrous Game 1 in Boston on Wednesday night. But the unofficial mascot of the team’s World Series run in 2011 has mostly been in hiding — or retirement, perhaps — replaced this year by Wacha-mania and quips about the Red Sox’s fixation with facial hair.

Indeed, you’d be hard-pressed to find any remnants of the squirrel today at the Cardinals store at Busch Stadium, aside from a pile or two of generic stuffed squirrels near the counter.

But the memory of the furry rodent continues to live on in the form of a lingering trademark dispute at the U.S. Patent and Trademark Office.

The Cardinals are contesting an October 2011 application for a federal trademark on the Rally Squirrel for shirts and related memorabilia by a local businessman. The two parties are now trying to negotiate a settlement.

Phil Rideout, owner of a Fenton-based sports memorabilia business, told the Post-Dispatch in 2011 that he thinks he was the first one to make a Rally Squirrel T-Shirt that year.

Of course, lots of other folks around town and other shirt manufacturers also got in on the squirrel action that October. It was seen as fair game at the time because no one clearly owned the rights to the squirrel, unlike other protected marks such as the “Cardinals” and the team’s logo.

Rideout said then that he applied to register the trademark because he wanted to build a whole sports brand around the Rally Squirrel outside of just baseball and wanted to make sure he was in the clear legally before launching it.

But trademark experts predicted that the Cardinals would object to the application. And so they have.

In December 2012, the Cardinals filed an opposition with the trademark office. In its filing, the Cardinals said that the Rally Squirrel was immediately associated with the team and its unlikely postseason run and World Series victory in 2011. It went on to say that the Rally Squirrel has become an “integral part of its identity.”

The club also noted that it quickly began marketing Rally Squirrel merchandise, including rally towels that were handed out to 40,000 fans at a National League Championship Series game. And it sold T-shirts in its team store with the slogan “Got Squirrel.”

So, the Cardinals argued, Rideout is trying to trade on the goodwill of the team and its World Series victory that year.

In June, the Cardinals filed a motion to suspend the proceedings until December while the two parties try to hash out a settlement.

Cardinals spokesman Ron Watermon said the team doesn’t typically comment on legal matters and noted that Major League Baseball handles licensing issues for clubs.

“The Cardinals Rally Squirrel is alive and well,” he added in an email Thursday afternoon before Game 2. “It is my understanding that he was on the red eye to Boston this morning with a map of Fenway in his luggage.”

Rideout did not return requests for comment.

David Howard, a lawyer with Polster Lieder Woodruff & Lucchesi who is representing Rideout, would not discuss the details of this case.

But speaking generally about trademark law, Howard noted that a federal trademark would not necessarily trump “common law” trademarks for people who actively use the mark in a certain geographic region.

“It doesn’t mean that other people don’t have common law rights,” he said.

Fans may remember another federal trademark application for the plural version — Rally Squirrels — by Florida-based Web entrepreneur Sean Sullivan. But his application has been suspended.

He built a fan site at rallysquirrels.com He said he received some not-so-friendly correspondence from the Cardinals about it. And a few months after he launched the site, it ended up getting bombarded with a lot of traffic in a denial-of-service attack from China, he said.

“It was obviously purposeful,” he said. “I have no idea who was doing it. Maybe it was a Cardinals fan — or someone who wasn’t a Cardinals fan.”

In any case, he took down the site about a year ago and redirected it to the Wikipedia entry for Rally Squirrel.

WACHA POPULARITY

Of course, the focus of this World Series has been more on Cardinals pitcher Michael Wacha and the various plays on his last name.

“Wacha Wacha Wacha” shirts have been popular and marketers are now rolling out other slogans such as “Bring on the beards,” said Jim Pisani, president of Pennsylvania-based Majestic Athletic, the on-field uniform supplier for Major League Baseball and a major producer of licensed fan gear.

“It’s been a fun thing — but nothing like the squirrel,” said Pisani. “I don’t know if there will ever be anything like that.”

Still, he said sales of World Series fan merchandise have been on target so far and are poised to be as strong as in previous years. And with the colder weather spell, outerwear such as the fleece hoodies that players often wear during warm-ups have been selling especially well.

Majestic contracted with local printers in the St. Louis region to get products into stores the day after the Cardinals clinched a spot in the World Series. Some merchandise is also being brought in from its production facilities in Florida and Pennsylvania.

One interesting trend Pisani has picked up on is that Cardinals gear seems to have gained more traction online this year from people outside of the St. Louis region. Part of that may be due to the increasing ease and availability of online shopping.

“But also they are starting to have more of a national following, much like the Red Sox and the Yankees,” he said.

While there’s that overused saying about St. Louis fans being the best in baseball, that doesn’t mean the Cardinals have the most fans. Pisani was diplomatic about it, saying that both Boston and St. Louis have avid fans and are strong markets for Majestic. But he acknowledged that Boston is obviously a much larger market given the sheer size of the region.

Still, he noted that the jerseys of some Cardinals players such as David Freese and Yadier Molina often land on the lists of the top-selling baseball jerseys.

In fact, Molina landed at the No. 7 spot in Major League Baseball’s list of top 20 selling jerseys for the second half of this season.

But he was the only Cardinal to make that list. The rest was mostly made of up players from teams like the Yankees, Dodgers, Mets, and, yes, the Red Sox.

Kavita Kumar covers retail and consumer affairs for the Post-Dispatch. She blogs on Consumer Central. Follow her on Twitter @kavitakumar.

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