BULKY DOCUMENTS
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`(Exceeds 100 pages)
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`Proceeding/Serial No: 91 1 92764
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`Filed: 61312011
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`
`
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`
`
`Title: OPPOSER’5' NOTICE OFFILING OF TRIAL
`TESTIMONY I/L4 DECLARATION OFHOWARD
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`SMIYT WT? H EXHIBITS I-17 THERETOAND 1" 2"’
`
`
`
`5”’ & 4"’ NOTICE OF RELIANCE
`
`91192764
`
`

`
`
`Cowan, Liebowitz & Latman, P.C.
`
`1133 Avenue of the Americas
`New York, NY 10036
`(212) 790-9200 Tel
`(212)575-0671 Fax
`www.cll.com
`
`
`,
`tamer
`
`~
`
`June 3, 2011
`
`Maryann E. Licciardi
`(212) 790-9218
`mel@cll.com
`
`5/Q
`
`(9
`
`O
`
`By Express Mail
`
`Commissioner for Trademarks
`Attn: Trademark Trial and Appeal Board
`
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`Re:
`
`New York Yankees Partnership V. Evil Enterprises,
`Opposition No. 91192764
`Attorney Ref. No. 21307.033
`
`Dear Commissioner:
`
`On behalf of Opposer New York Yankees Partnership, we enclose the following
`documents in connection with the above-referenced proceeding:
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`Opposer ’s Notice ofFiling of Trial Testimony Via Declaration ofHoward Smith
`Pursuant To Stipulation, and the accompanying Declaration ofHoward Smith
`with Exhibits 1 through 17 thereto; and
`
`Opposer ’s First Notice ofReliance Upon Applicant ’s Discovery Responses
`Pursuant T0 Trademark Rule 2.120(]'), and Exhibits A through D thereto; and
`
`Opposer ’s Second Notice ofReliance Upon Printed Publications Pursuant To
`Trademark Rule 2.122(e), and Exhibits A through C thereto; and
`
`Opposer ’s Third Notice ofReliance Upon Internet Materials Pursuant To
`Trademark Rule 2.122(e) and TBMP 704. 08(1)), and Exhibits A through C thereto;
`and
`
`Opposer ’s Fourth Notice o/“Reliance Upon Opposer ’s Registrations Pursuant To
`Trademark Rule 2.122(d), and Exhibits A and B thereto.
`
`2l307/033/l245836.l
`
`1l||11l||l1||||||||1|||ll||lllllllllllllllllllllll
`06-03-2011
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`

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`Cowan, Liebowitz & Latman, P.C.
`Commissioner for Trademarks
`
`June 3, 2011
`
`Page 2
`
`6.
`
`Courtesy copy of Stipulation OfParties Concerning Trial Testimony (filed April
`20, 2011) and Board Order dated April 28, 2011 approving the same
`
`Respectfully submitted,
`'‘\/\/3»%/5.i,é \
`Maryann E. Licciardi
`
`_
`
`(
`
`Enclosures
`
`cc: Gerard F. Dunne, Esq. (w/encs.)
`Richard S. Mandel, Esq. (w/o encs.)
`Mary L. Kevlin, Esq. (w/o encs.)
`
`21307/033/1245836.]
`
`
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`

`
`Docket No. 21307.033
`
`TRADEMARK
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In re Application Serial No.: 76/691,096
`Filed: July 7, 2008
`For Mark: BASEBALLS EVIL EMPIRE
`
`Published in the Official Gazette: May 26, 2009
`
`NEW YORK YANKEES PARTNERSHIP,
`
`Opposition No. 91192764
`
`Opposer,
`
`v.
`
`EVIL ENTERPRISES, INC.,
`
`Applicant.
`
`____________________________________________________________--'x
`
`Commissioner for Trademarks
`
`Attention: Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`OPPOSER’S NOTICE OF FILING OF TRIAL TESTIMONY
`VIA DECLARATION OF HOWARD SMITH PURSUANT TO STIPULATION
`
`PLEASE TAKE NOTICE that pursuant to 37 CFR §§ 2.123(b) and 2.125, TBMP
`
`703.01(b) and the Board’s order dated April 28, 2011 approving the parties’ Stipulation
`
`Concerning Trial Testimony, Opposer New York Yankees Partnership (“Opposer”) is filing the
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`trial testimony of third party witness Howard Smith, Senior Vice President — Licensing of Major
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`League Baseball Properties, Inc., via the attached Declaration of Howard Smith, executed on
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`May 13, 2011, and the following accompanying exhibits as part of Mr. Smith’s trial testimony:
`
`0 Exhibit 1: New York Times article dated December 25, 2002
`
`0
`
`6 I 4
`
`I hereby certify that this paper or fee is being deposited with the United States
`Postal Service “Express Mail Post office to Addressee“ service under 37
`C FR, 1.l0 on the date indicated above and IS addressed to the Commissioner for
`7
`,.
`Trdemarks, P.O. Box l45l,
`A lexandria Virginia 2231£I45I r
`,.
`
`e;_sL
`In I‘:}‘7(~4Q’$(C3
`
`
`“Express Mail“ Mailing Label Number 2
`
`
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`21307/033/1245640.]
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`

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`Docket No. 21307.033
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`TRADEMARK
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`0 Exhibit 2: Articles from various publications reporting on Lucchino’s reference to
`the Yankees Club as the “Evil Empire”
`0 Exhibit 3: New York Times article dated December 29, 2002
`
`0 Exhibit 4: Denver Post dated February 9, 2003
`Exhibit 5: Articles from various publications referencing the Yankees Club as the
`“Evil Empire”
`Exhibit 6: Excerpt from the American Heritage Dictionary
`Exhibit 7: New York Times article dated December 31, 2002
`
`Exhibit 8: Wikipedia entry titled “Glossary of baseball”
`Exhibit 9: Internet printouts reflecting the use of the “Evil Empire West” name
`Exhibit 10: Internet printouts of online blogs containing references to the Yankees
`Club as the “Evil Empire”
`0 Exhibit 11: Internet printouts of postings on the Yankees Club message board on
`the official MLB.com website
`
`0 Exhibit 12: Press release issued by Applicant dated November 19, 2009
`0 Exhibit 13: Internet printouts of excerpts of Applicant’s website at
`www.basebal1sevilempire.com
`0 Exhibit 14: Highlighted “meta” elements contained on Applicant’s website
`0 Exhibit 15: Copies of photographs showing the products offered for sale through
`App1icant’s website
`0 Exhibit 16: Articles, blogs and postings from various sources linking the “Evil
`Empire” Yankees Club with the “Stars Wars” movies
`0 Exhibit 17: Examples of licensed products bearing the Yankees Top Hat Marks
`and Yankees Interlocking NY Marks
`
`In accordance with the parties’ Stipulation Concerning Trial Testimony, Applicant has been
`
`provided with an opportunity to conduct cross-examination of Mr. Smith and has waived its right
`
`to do so.
`
`Dated: New York, New York
`June 3, 2011
`
`Respectfully submitted,
`
`COWAN, LIEBOWITZ & LATMAN, P.C.
`Attorneys for Opposer
`
`By
`
`ixuxd ‘
`6 e};\(\
`
`andel
`
`Richard S.
`
`Mary L. Kevlin
`Maryann E. Licciardi
`
`1133 Avenue of the Americas
`
`New York, New York 10036-6799
`
`(212) 790-9200
`
`21307/O33/1245640. 1
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`
`
`

`
`Docket No. 21307.033
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In re Application Serial No.: 76/691,096
`Filed: July 7, 2008
`For Mark: BASEBALLS EVIL EMPIRE
`
`Published in the Official Gazette: May 26, 2009
`
`"""""""""""""""""""""""""""""" " X
`
`NEW YORK YANKEES PARTNERSHIP,
`
`Opposer,
`
`V.
`
`:
`
`Opposition No. 91 192764
`
`EVIL ENTERPRISES, INC.,
`
`Applicant.
`
`___________________________________________________________ __ X
`
`DECLARATION OF HOWARD SMITH
`
`HOWARD SMITH, pursuant to 28 U.S.C. § 1746 and Trademark Rule 2.20, declares as
`
`follows:
`
`1.
`
`I am Senior Vice President — Licensing of Major League Baseball Properties, Inc.
`
`(“MLBP”),licensingagentforOpposerNewYorkYankeesPartnership(“Opposer”).
`
`this declaration, pursuant to the stipulation of the parties, to set forth my direct trial testimony on
`
`Imake
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`behalf of Opposer in the above—referenced opposition proceeding. The statements set forth
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`herein, to which I would testify if called, are based upon my personal knowledge as well as my
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`review of the records of Opposer and/or MLBP and various publicly available documents
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`referenced herein.
`
`21307/033/12373805
`
`é Wu 0 to O O I J Q 0 ‘L18
`I hereby certify that this paper or fee is being deposited with the United States Postal Service “Express
`Mail Post office to Addressee“ service under 37 CF R 1.10 on the date indicated above and is
`
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`Docket No. 2l307.033
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`Witness Background and Relationship of MLBP to Opposer
`
`2.
`
`I received a BA degree from the University of South Florida in 1980 and an MBA
`
`from Fairleigh Dickinson University in 1984. After working briefly as a financial analyst
`
`following my graduation from Fairleigh Dickinson, I worked in various sports marketing
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`positions over the next thirteen years, first for Pony Athletic Shoes, then for an apparel company
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`named Le Coq Sportif and after that for Reebok lntemational. In 1998, I joined MLBP as Vice
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`President - Licensing, assumed the position of Senior Vice President — Licensing in 2002 and
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`throughout my tenure at MLBP have headed up MLBP’s domestic consumer product licensing
`
`business.
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`3.
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`MLBP is indirectly owned by the 30 Major League Baseball clubs (the “MLB
`
`Clubs”), including Opposer, the owner of the renowned NEW YORK YANKEES Major League
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`Baseball club (the “Yankees” or the “Yankees Club”). MLBP is a licensee of and acts as
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`licensing agent for each of the MLB Clubs, including the Yankees Club, the Office of the
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`Commissioner of Baseball and their respective affiliated and related entities (collectively, the
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`“MLB Entities”). MLBP is responsible for, among other things, licensing the trademarks and
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`other intellectual property of MLBP and the MLB Entities to third parties for the manufacture,
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`production, sale, distribution and promotion of products and services bearing such intellectual
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`property, and for the protection and enforcement of rights in, such intellectual property. In my
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`position, I am responsible for overseeing the domestic licensing of the intellectual property of the
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`MLB Entities, including Opposer, in connection with consumer products.
`
`Background and Fame of the Yankees Club
`
`4.
`
`The Yankees Club is one of the most successful sports franchises in the history of
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`the United States. Indeed, in the history of sports, there are few, if any, sports teams as famous
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`21307/033/12373805
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`l
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`Docket No. 21307033
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`as the Yankees Club and whose history and accomplishments are followed as closely as those of
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`the Yankees Club. From the Yankees Club’s historic acquisition ofBabe Ruth in 1920, to the
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`1923 opening of its first YANKEE STADIUM ballpark, to its twenty-seven (27) WORLD
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`SERIES championship titles (the most of any American sports franchise) and its legendary
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`rivalry with the BOSTON RED SOX club (the “Red Sox Club”), the Yankees Club has
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`consistently received enormous press coverage and widespread public recognition and attention
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`of a kind that virtually no club in any sport enjoys. The fame and recognition of the Yankees
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`Club has also contributed to a high nationwide demand for merchandise associated with the
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`Yankees Club, including a wide variety of clothing bearing the Yankees Club’s trademarks.
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`5.
`
`First established in 1903 as the HIGHLANDERS baseball team, the Yankees
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`Club adopted the YANKEES nickname in 1913 and has played continuously under that name
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`since that time. In the Yankees Club’s 100 year plus history, the Yankees Club has become the
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`most successful of all of the MLB Clubs, making forty (40) WORLD SERIES championships
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`appearances and winning twenty-seven (27) WORLD SERIES championship titles, including
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`most recently in 2009.
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`6.
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`Many of the greatest and most famous Maj or League Baseball players are known
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`for their accomplishments while members of the Yankees Club. In fact, forty-four (44) members
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`of the National Baseball Hall of Fame, an organization that honors individuals, including players,
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`who have made outstanding contributions to the game of baseball, have played for the Yankees
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`Club. Among this group of legendary players are such household names as Babe Ruth, Lou
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`Gehrig, Joe DiMaggio, Mickey Mantle and Reggie Jackson. Moreover, two of the most famous
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`current Major League Baseball players, Derek Jeter and Alex Rodriguez, play for the Yankees
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`Club.
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`Docket No. 21307033
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`7.
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`Since 1990, over sixty—three (63) million people have attended the Yankees
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`Club’s games played at its home stadium, in addition to millions of additional fans who attend
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`the Yankees Club’s games in numerous other cities throughout the United States. Between 1923
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`and 2008, the Yankees Club played at YANKEE STADIUM ballpark (one of the most famous
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`sports stadiums in the world), with the exception of the 1974 and 1975 season when the Yankees
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`Club played at SHEA STADIUM ballpark while YANKEE STADIUM ballpark was being
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`repaired. The Yankees Club received extensive publicity in 2008 when it played its last season
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`in the historic 85-year old YANKEE STADIUM ballpark, in preparation for a move into a new
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`stadium (also called YANKEE STADIUM ballpark) that was under construction next door. That
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`year, the annual Major League Baseball ALL-STAR GAME exhibition, in which players from
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`every Major League Baseball Club compete, was held at the historic YANKEE STADIUM
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`ballpark in order to commemorate the Yankees Club’s last season in that ballpark. The Yankees
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`Club inaugurated its first full season of play at its new YANKEE STADIUM ballpark in 2009 by
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`winning its 27”‘ WORLD SERIES championship title.
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`8.
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`The Yankees Club’s games are made available to a broad nationwide audience
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`through television and radio broadcasts as well as via webcasts and online streaming. Millions
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`of baseball fans have watched broadcasts of the Yankees Club’s games on such national
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`networks as ESPN, FOX, CBS, NBC, ABC and TBS, as well as on the Major League Baseball
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`national cable channel, MLB Network. The Yankees Club’s games are also broadcast on the
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`Yankees Entertainment and Sports (YES) Network, a cable television channel that broadcasts in
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`New York, New Jersey, Connecticut and parts of Pennsylvania and that is also available
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`nationally through DirecTV, a direct broadcast satellite service provider. In addition, full games
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`as well as highlights can be accessed on the Internet through www.mlb.com and
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`Docket No. 2l307.033
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`www.newyork.yankees.mlb.com, the official websites of Major League Baseball and the
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`Yankees Club, respectively, each of which receives millions of hits annually. Broadcasts of the
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`Yankees Club’s games may be seen and heard through both of these websites, which provide live
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`game day video broadcasts and live audio coverage of the Yankees Club’s games through
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`subscriptions to baseball fans. Moreover, the Yankees Club’s games have been broadcast on
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`radio since at least as early as 1939, and today reach millions of fans through a network of more
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`than 50 radio stations covering 14 states (extending as far as Alaska) as well as through the XM
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`Satellite Radio national network.
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`9.
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`Millions more are familiar with the Yankees Club as a result of the sustained and
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`extensive press coverage it has received over many decades in a broad range of publications,
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`including Sports Illustrated, one of the world’s leading weekly sports magazines; USA Today,
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`the most widely read newspaper in the United States; The Sporting News, a weekly newspaper
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`devoted exclusively to sports; and the New York Times, one of the most widely recognized and
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`well respected newspapers in the world. In addition to the attention the Yankees Club has
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`received through widely distributed news publications, the Yankees Club highlights its own
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`achievements through an official Yankees Magazine, which discusses the Yankees Club’s players
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`and the progress of the team each season. Over the years, references to the Yankees Club have
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`also often appeared in pop culture, including in film, television programs and the dramatic arts.
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`To name just some examples, the Yankees Club has been prominently featured in the Pride of
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`the Yankees and The Babe Ruth Story films, the renowned television series Seinfeld and the
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`Broadway musical Damn Yankees.
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`10.
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`Like all the MLB Clubs, the Yankees Club engages in an extensive
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`merchandising program, which is licensed and managed by MLBP. This merchandising program
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`Docket No. 21307.033
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`is very popular with fans who wish to show their allegiance to the Yankees Club by owning
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`apparel, posters, toys, accessories and a wide variety of other goods bearing Opposer’s famous
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`marks. Indeed, apparel, which fans can publicly wear to demonstrate their allegiance, is a key
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`component of the merchandising program. Opposer’s marks can be found on a wide range of
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`extremely popular apparel, including all of the goods that are the subject of the opposed
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`application in this proceeding, z'.e., shirts, T-shirts, sweatshirts, jackets, pants, shorts and hats.
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`11.
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`Since 2000, wholesale sales in the United States of MLBP-licensed products
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`j
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`bearing trademarks associated with, promoting or identifying the Yankees Club have exceeded
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`$1.1 billion. Such merchandise is widely available through a broad spectrum of channels of
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`trade, including the official Major League Baseball website at www.mlb.com and the Yankees
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`Club’s own website at www.newyork.yankees.mlb.com, in-stadium concessionaires, the
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`YANKEES CLUBHOUSE SHOPS official team stores located in New York City, mail order
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`operations, catalogs and many other retail locations (both online and brick and mortar stores),
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`including, without limitation, such national chains as J .C. Penney, Dick’s Sporting Goods, Sports
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`Authority, Target, Wal-Mart, K-Mart, Walgreens, 7-Eleven, Bed Bath & Beyond, Best Buy,
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`Toys R Us, Babies R Us and Party City, which collectively have thousands of store locations
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`nationwide.
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`The EVIL EMPIRE Designation and its Association with the Yankees Club
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`12.
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`One feature of the Yankees Club’s history that has received particular attention
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`over many years has been its intense long time rivalry with the Red Sox Club, one of the oldest
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`rivalries and perhaps the most famous one in all of sports. Since the addition of a wild card team
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`to the Major League Baseball postseason playoff format in 1995 permitting two teams in the
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`same division to qualify for postseason play, the Yankees Club and the Red Sox Club have met
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`Docket No. 21307.033
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`in the American League Championship Series (“ALCS”) three times, with the Yankees Club
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`prevailing in 1999 and 2003 and the Red Sox Club winning in 2004. The two clubs have twice
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`played in the last regular season series to determine the American League champion, with the
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`Red Sox Club victorious back in 1904 and the Yankees Club winning in 1949. The Yankees
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`Club and Red Sox Club also famously competed against each other in a one-game playoff for the
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`American League East division title in 1978 after finishing the season tied following a historic
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`comeback by the Yankees Club, which had trailed the Red Sox Club by fourteen games in the
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`standings late in the season. The Yankees Club went on to win a dramatic victory in the 1978
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`playoff game and ultimately won the WORLD SERIES championship that year.
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`13.
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`In December 2002, following its fifth consecutive runner—up finish behind the
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`Yankees Club in the American League East division, the Red Sox Club was actively seeking to
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`sign Cuban pitcher Jose Contreras to a contract. However, on December 24, 2002, the Yankees
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`Club announced that it had signed Contreras to a multi-million dollar contract within days of
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`doing so for another Yankees Club player. Asked for a comment on the Yankees Club’s signing
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`of Contreras, the Red Sox Club’s president, Larry Lucchino, told the New York Times: “The evil
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`empire extends its tentacles even into Latin America.” (A copy of the December 25, 2002, New
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`York Times article containing Lucchino’s quote is attached hereto as Exhibit 1).
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`14.
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`Lucchino’s reference to the Yankees Club as the “Evil Empire” became a source
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`of immediate widespread attention, being reported by ESPN and over the course of the next
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`week in a variety of other publications, including the New York Post, the Daily News, Newsday,
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`the Boston Herald, the News-Journal (in Daytona Beach, Florida), the Boston Globe, the St,
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`Petersburg Times, the Chicago Tribune, the San Diego Union Tribune, the Hartford Courant,
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`the Record (in Bergen County, New Jersey), Associated Press, the Journal News (in
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`Docket No. 21307.033
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`Westchester, New York) and the Home News Tribune (in East Brunswick, New Jersey), to give
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`some examples. (Copies of the above-referenced articles are attached hereto as Exhibit 2.)
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`15.
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`Beyond simply attributing the “Evil Empire” comment to Lucchino, some news
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`sources also quickly began themselves applying the “Evil Empire” designation to refer to the
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`Yankees Club. Thus, in a December 29, 2002, New York Times article (a copy of which is
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`attached hereto as Exhibit 3) appearing just four days after Lucchino’s initial comment, the
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`writer opined that “[t]he Red Sox will never beat the Evil Empire Yankees” with the Red Sox
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`Club’s particular business approach. As pitchers and catchers prepared to report for the 2003
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`SPRING TRAINING season, a writer at the Denver Post declared in a February 9, 2003, article
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`(a copy of which is attached hereto as Exhibit 4) that “[w]e love it that baseball has an Evil
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`Empire, a team to beat, the perpetual villain in the New York Yankees.”
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`16.
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`The “Evil Empire” designation has since continued to be commonly and
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`extensively used as a nickname by the press, media, fans and the public to refer to the Yankees
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`Club. Indeed, the designation has evolved far beyond Lucchino’s comment referencing the Red
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`Sox Club’s arch rival and is now a shorthand way of identifying the Yankees Club in common
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`usage, even coming to have (as the evidence shows) a positive connotation when used by its
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`legions of loyal fans and many in the press.
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`17.
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`A Lexis Nexis search performed by the staff at MLBP looking for articles that
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`contain both the terms “Yankees” and “Evil Empire” produced thousands of hits between 2003
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`and 2010. A copy of the search results, which include excerpts from the cited articles containing
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`the search terms, as well as representative examples of these articles (reproduced in full) from
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`each of the years 2003-2010 will be submitted separately by the Yankees Club in accordance
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`with the governing rules for this proceeding. While the overwhelming and continuing press
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`Docket No. 2l307.033
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`usage of the designation “Evil Empire” to refer to the Yankees Club is far too extensive to
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`summarize here, a representative selection of some examples over the years is quoted below to
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`illustrate the press treatment of the designation as synonymous with the Yankees Club.
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`For example, sympathetic press in New York geared toward fans of the Yankees Club
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`frequently touts the “Evil Empire” moniker:
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`“Boone HR Puts Yanks In Series; Empire Comes Back To Win On Blast In 11th
`Game 7, 11 innings
`Yankees 6
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`Red Sox 5
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`The Evil Empire lives!” (New York Post, Oct. 17, 2003)
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`“‘This is the greatest rivalry in sports, and it’s getting even better,’ said George
`Steinbrenner, emperor of the Evil Empire, whose Yankees’ offseason strategy
`is to keep pace with their bitter foes from Fenway, who appear larger in their
`rareview mirror even without Alex Rodriguez.” (Journal News (Westchester
`County, NY), Dec. 22, 2003)
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`“But these are the Yanks, after all, and everything is breaking right again for the
`Evil Empire since the All-Star break.” (Daily News, July 23, 2008)
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`“Red Sox Nation and the Evil Empire together and on the same side playing in
`The House That Ruth Built? That’s right. Come tonight, the bitter rivals will
`unite in the All-Star Game at Yankee Stadium and share just about everything.”
`(Newsday, July 15, 2008)
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`Members of other Major League Baseball clubs even aspire for their teams to one day
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`reach a level of performance equal to that of the “Evil Empire” Yankees Club:
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`‘But Rome isn’t
`‘“We’re not where New York or Boston is yet,’ Mayta said.
`built overnight. The reality is it takes a little more time. We’re getting there.
`Said Dapcic, ‘They say the Yankees are an evil empire. We hope to be an empire
`ourselves someday.”’ (The Tz'mes- Union (Albany, NY), September 7, 2008,
`quoting Peter Mayta and Steve Dapcic of the TAMPA BAY RAYS Major League
`Baseball club)
`
`Of course, the adoption and use of the “Evil Empire” nickname to refer to the Yankees
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`Club extends far beyond the Club’s home state of New York:
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`“You know, somebody said the New York Yankees are the evil empire, and
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`the evil empire struck back big time. And somehow they always win. [T]he
`evil empire came back.” (National Public Radio, Oct. 17, 2003)
`
`“He traded Rodriguez to the ‘Evil Empire,’ for second baseman Alfonso Soriano
`and minor-leaguer Joaquin Arias.” (Dallas Morning News, May 22, 2004)
`
`“Onetime Red Sox pitching ace Pedro Martinez quickly caused most of them to
`soon return to the debate when he served up a two-run homer to Yankee first
`baseman John Olerud that put the Evil Empire up 3-0 in the sixth inning, causing
`the rampant paranoia that fuels Red Sox Nation to grow even deeper.” (Bangor
`Daily News (Maine), Oct. 16, 2004)
`
`“The only thing that is even more exciting to Perry is the end of The Curse as the
`Red Sox finally defeated the Evil Empire (the Yankees) en route to their first
`World Series win in ages.” (Ventura County Star (California), March 3, 2005)
`
`“It’s the day you have long dreaded and dreamed about, Red Sox Nation. Johrmy
`Damon, an idiot no more, makes his return to Fenway Park, minus the long hair
`and beard, and wearing the dreaded pinstripes of ‘the Evil Empire.’” (Washington
`Post, April 3, 2006)
`
`“The teenager standing on the street corner is wearing a baseball cap. Sadly, it
`bears the symbol of baseball’s evil empire: the New York Yankees.”
`(Massachusetts Daily Collegian, May 4, 2006)
`
`“Now, major league ball clubs are hiring Veeck as a consultant. And fun is
`creeping back into the big ballparks. Even the starchy New York Yankees, which
`the RiverDogs became affiliated with last year, are on board. The so-called “Evil
`Empire” from the Big Apple has yet to spike a Veeck promotion, including the
`RiverDogs’ opening-day gag where ‘Star Wars’ characters took to the infield for
`the ceremonial first pitch.” (The Post and Courier (Charleston, South Carolina),
`April 16, 2007)
`
`“The Evil Empire still stands poised to conquer all of baseball.” (Newstex Web
`Blogs — the Baltimore Sun, Nov. 3, 2009)
`
`“Pedro Martinez gets the ball in Game 6 tonight of the World Series, and he is the
`only thing standing between the Evil Empire and its 27”‘ world championship.”
`(The Boston Globe, Nov. 4, 2009)
`
`(Copies of the full articles quoted above are attached hereto as Exhibit 5). The huge volume of
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`references to the Yankees Club as the “Evil Empire” leaves no room for doubt that when used in
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`Docket No. 21307.033
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`conjunction with the sport of baseball, the designation “Evil Empire” has become widely and
`
`uniquely associated with the Yankees Club.
`
`18.
`
`In its original form, the “Evil Empire” designation unquestionably had a
`
`derogatory connotation. The American Heritage Dictionary lists the following definitions for
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`the adjective “evil”: “1. Morally bad or wrong; wicked. 2. Causing ruin, injury or pain; harmfiil.
`
`3. Characterized by or indicating future misfortune; ominous: evil omens. 4. Purportedly bad or
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`blameworthy; infamous: an evil reputation. 5. Characterized by anger or spite; malicious: an
`
`evil temper.” (A copy of the relevant excerpt from the American Heritage Dictionary is attached
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`hereto as Exhibit 6). Any of those associations would disparage the Yankees Club or bring it
`
`into contempt or disrepute, and indeed will continue to do so among at least some significant
`
`segment of the consuming public. It is likely for that reason that the New York Times reported in
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`a December 31, 2002 article that Lucchino’s comment had “roused [the] wrath” of then Yankees
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`Club owner George Steinbrenner. (A copy of such article is attached hereto as Exhibit 7).
`
`19.
`
`Notwithstanding the original intended disparaging connotation of the “Evil
`
`Empire” designation, over time some fans of the Yankees Club began to embrace the “Evil
`
`Empire” designation, viewing it as a badge of honor reflecting the Yankees Club’s success and
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`analogous to how former Brooklyn Dodgers fans adopted the “Dem Bums” nickname. To such
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`fans of the Yankees Club, the “Evil Empire” designation only proved the Yankees Club’s
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`commitment to excellence and its history of winning. A Wikipedia entry titled “Glossary of
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`baseball” aptly describes the situation, defining “Evil Empire” as “[a] common nickname for the
`
`New York Yankees due to its wealth and winning by far the most championships” and noting
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`that “[e]ven some Yankees fans have been known to call themselves and their team the ‘Evil
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`Empire’ as a badge of honor.” (A copy of the Wikipedia article is attached hereto as Exhibit 8).
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`20.
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`The fact that fans of the Yankees Club themselves have embraced the “Evil
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`Empire” designation as a nickname for the Yankees Club can be seen in various blogs, social
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`networks and Internet message boards where the “Evil Empire” designation is frequently used
`
`with reference to the Yankees Club. One group of fans of the Yankees Club in Los Angeles,
`
`California dubbed itself “Evil Empire West,” describing themselves as “true Yankee fans in Los
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`Angeles and the greater west coast” who “just missed that east coast vibe.” The group has
`
`appeared on the ning.com website, an open platform where people can create their own social
`
`network, as well as on Google Sites, Twitter and Facebook. (Internet printouts reflecting the use
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`of the “Evil Empire West” name are attached hereto as Exhibit 9).
`
`21.
`
`References to the Yankees Club as the “Evil Empire” can also be found in various
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`blogs created by fans of the Yankees Club on the Major League Baseball official website’s
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`community blog MLBlogs, which are accessible via the official website of the Yankees Club.
`
`One such blog entitled “The Evil Empire strikes back!” describes itself as a “blog dedicated to
`
`the true Yankee fan that has endured the good and bad times.” Notwithstanding the use of “Evil
`
`Empire” in its title, the blog clearly has a pro-Yankees Club bent, noting, for example, that
`
`“Captain [Derek Jeter] brought back pride and dedication to a team whose standards are always
`
`higher than other major league teams” and reporting that “[t]hese Yankees are hungry and ready
`
`to start creating a dynasty of their own.” Another blog entitled “Yankeeology — Pay It Forward”
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`discusses significant charitable contributions by several Yankees Club players and then team
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`owner George Steinbrenner while at the same time identifying the Yankees as the “Evil Empire,”
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`noting “the Evil Empire needs an Emperor and George Steinbrenner is there to lead the charge.”
`
`(Internet printouts of the above-referenced blogs and other Yankees Club fan blogs containing
`
`references to the Yankees Club as the “Evil Empire” are attached hereto as Exhibit 10).
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`22.
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`More generally, references to the Yankees Club as the “Evil Empire” appear
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`repeatedly in postings by fans of the Yankees Club on the Yankees Club message board on the
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`official MLB.com website, as reflected in the various examples attached hereto as Exhibit 11.
`
`As one fan explained in such a posting describing frustration with fans who hate the Yankees
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`Club, “After awhile, I get tired of the back and forth with these troll[s] and just ‘embrace’ our
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`reputation as the Evil Empire
`
`they usually don’t have a comeback when that happens.” Ex.
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`11 at Yl66l (ellipsis in original). As another fan boastingly added in the same thread:
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`“Basically, WE ARE THE EVIL EMPIRE
`
`GET USED TO IT! ! !!
`
`Badge of Honor indeed
`
`The Evil Empire
`
`27 World Series Titles
`
`Greatest Sports Franchise.”
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`23. Whether one hates the Yankees Club or loves them (and there are plenty of fans
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`who fall into each group), there is no escaping who the designation “Evil Empire” refers to in the
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`context of baseball. No longer just a simple epithet uttered by a frustrated rival owner, the
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`designation “Evil Empire” has long since taken on a life of its own within the sport of baseball.
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`In that arena, the “Evil Empire” designation points specifically and unequivocally to the Yankees
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`Club.
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`AQglicant’s Attempted Registration and Use of BASEBALLS EVIL EMPIRE
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`24.
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`On July 7, 2008, Applicant Evil Enterprises, Inc. (“Applicant”) filed an intent-to-
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`use application seeking to register BASEBALLS EVIL EMPIRE for “clothing, namely, shirts, t-
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`shirts, sweatshirts, jackets, pants, shorts and hats.”
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`25.
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`As discussed above, based on the extensive public usage of the phrase “Evil
`
`Empire” in the context of baseball to refer to the Yankees Club, it is plain that the combination
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`of the (presumptive) possessive modifier “Baseballs” attached to the designation “Evil Empire”
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`can only be understood as identifying the Yankees Club.
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`26.
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`In addition, any conceivable doubt on that question is completely eliminated by
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`examinatio