Cowboy Up

As I write this there are Red Sox fans in my street hootin’ and hollerin’ in celebration of tonight’s victory. I don’t know if those in other cities have been privy to the “Cowboy Up” phrase that has become an unofficial slogan / cheer of this year’s Sox, but it’s popular enough to have found its way onto t-shirts, signs, and even into law school emails.
The trademark implications of printing “Cowboy Up” on t-shirts and signs could be very interesting as excited fans open their wallets. The Associated Press reports that a Wyoming company called Wyoming West Designs that has a trademark in the phrase has begun to make quick licensing deals with baseball merchandise vendors. I can’t find this in the USPTO database. It’s late though – so maybe it’s there and I just don’t see it. In any case, I doubt Wyoming West would have a good case for infringement against those making the shirts to sell outside Fenway Park. There could hardly be confusion as to source.
The Red Sox themselves might have a good case against the shirt makers since they’re relying on the good will of the Sox to sell the shirts (which have the same colors and fonts as the Sox’s marks). I suppose a cheap license from Wyoming would give the Sox a stronger case against shirt makers around Fenway.
In any case, I’m too tired to really analyze this, but I think it’s an interesting case. Wyoming West Designs really has been using the mark for shirts and stickers, but they don’t own the domain cowboyup.com. Jerry England got to that one first. He’s using the phrase for his “folk art”. Someone is running some sort of instant community software to make cowboyup.org, but it looks to me like this was before the Sox’s use of the phrase. Cowboyup.net features another clothing store. So it appears that the phrase was popular enough amongst real cowboy enthusiasts to snatch up all the good domain names before baseball marketers knew what was happening. Maybe the fans should have adopted a fanciful mark like “Cobup”. It would have been much easier to protect under trademark law.
There’s only one Google Adwords ad for “Cowboy Up”, and the interest bar is full from people going to Today’s Champs.