I. Introduction .......................................................................................................... 45

II. Analysis .............................................................................................................. 49

III. Conclusion ........................................................................................................ 90

2017] WRIGLEY FIELD, THE TRADEMARK 45

Could the owners of the Chicago Cubs and Wrigley Field own a

trademark in Wrigley Field? Could the owner of the Boston Red Sox and

Fenway Park own a trademark in the wall they call the Green Monster?

What would this country look like if one person could own a property

interest in a piece of Americana? Baseball is as much a part of America as

in order to earn trade dress protection in their stadium.

One thing that becomes abundantly clear to anyone who spends

anytime studying the world of sports is that it has become big business.

Most recently, there has become an arms race of sorts to see who can build

the nicest and newest stadiums. The city of Atlanta will be the hub of this

arms race for the next couple years. The Atlanta Falcons of the National

Football League will get a new home in 2017 that will cost them a mere

$1.5 billion, with $1.3 billion of that coming directly from owner Arthur

46 PACE INTELL. PROP. SPORTS & ENT. L.F. [Vol. 7:1

Blank’s pockets.

house one of Major League Soccer’s newest clubs, Atlanta United.

County has already broken ground on a new stadium that will move Major

League Baseball’s Atlanta Braves across town into a venture that will cost

$672 million.

newest venue will be in Sacramento, California, where the Kings will lace

conversely, what if a team like the White Sox could build an exact replica

of Wrigley Field on the South Side of Chicago in a move to draw money

2017] WRIGLEY FIELD, THE TRADEMARK 47

and fans away from the Cubs? Is there any protection to keep the White Sox

from doing that? Yes, and that protection is rooted in trademark. Along with

that protection, allowing owners to earn trademark protection in their

stadiums would create a new revenue stream for them. T-shirts and snow

globes of Wrigley Field would fill the team stores on game days and teams

would be able to limit and control what third parties could sell those items

able to put a stop to any other baseball teams from building a similar

stadium or using too many similar aspects of his stadium when constructing

their own. Profit is made in trademark by either being known as the best

supplier of goods, so customers come to you and you only; selling items

with your mark on it; or by licensing out your mark for others to use, which

creates a revenue stream of royalties. The possibilities of these new revenue

streams becoming available to owners of stadiums would add incentive

when they’re debating spending billions of dollars to construct new ones or

when they need assistance in keeping an older stadium profitable.

48 PACE INTELL. PROP. SPORTS & ENT. L.F. [Vol. 7:1

This paper will lay the ground work of how stadiums receive trade

dress protection and set up the future discussions of how to turn that

protection into new revenue streams. First, stadiums are adequate subject

matter for trade dress protection, specifically as the packaging of the good

(here, a Cubs game). Second, I will show that stadiums are not too centered

on functionality as to prohibit them from receiving trade dress protection.

the issue of whether or not a stadium is the packaging of the good (which I

claim it is) or the good itself (as similar subject matter was held to be by the

Sixth Circuit). The issue of functionality will be taken up in Section C. In

that section, I will prove that Wrigley Field has enough arbitrary features to

take it above the functional threshold and into something deserving trade

dress protection. Section D looks at the issue of secondary meaning; and

then this paper will close with Section E and the stadium’s use in

commerce.

2017] WRIGLEY FIELD, THE TRADEMARK 49

Before one can appropriately grasp the world of trade dress, it would

help to have some understanding on trademark law and how one obtains a

trademark. Everyone has seen a trademark. They’re usually signified by a

small “TM” or an “R” enclosed in a circle next to the logo of a company. A

person in commerce to identify or distinguish the source of their goods.

Notice that, in its definition, it is the intention of trademarks to identify the

source of a good, not the good itself.

Think of a man, let’s call him Mr. Icarus, and let’s imagine he has

invented the first working solar powered car. He has taken the roof of a

normal-looking, four-door sedan, and installed solar panels that absorb the

sun’s light and use the energy generated by the panels to power the car’s

battery and run the vehicle’s engine. After all of his patents are in order for

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the technology, Mr. Icarus’ next concern is to create a business and start

selling his car. He decides to name the company Carro del Sol.

meeting with a marketing firm, Mr. Icarus adopts a logo with a steering

wheel superimposed on the sun and decides to advertise his cars with the

tagline: “Let the sun power your life.” Every car his company produces gets

“Carro del Sol” placed on the rear of the car, near the left taillight, and the

advertisements, Mr. Icarus and his company are officially using them in

commerce to identify their company as the source of the cars that are being

sold.

Now, imagine you’ve bought a Carro del Sol and want to show it

off to the girl down the street by taking her out to dinner and a movie. The

movie theater you choose has been designed to feel like a drive-in theater.

The lobby feels like you’re outside, with green carpet that looks like grass,

and the moon surrounded by stars on the ceiling. When you walk into the

2017] WRIGLEY FIELD, THE TRADEMARK 57

Nowhere in Scalia’s analogy does he set a mark as to what size this

second group must reach in order to affect the view that the bottle or

stadium shifts from the packing of the good to the good itself. However, one

would assume that there must be some point at which there is that shift. It

should be helpful to look at some numbers to gauge an idea of where that

point may be or decide whether or not this is even worth the worry of

video board in the outfield, which took away some original seating, but

added more bleachers to compensate and keep their number relatively the

same as before the new video board.

had between 7,000 and 8,000 season-ticket account holders.

purposes of this paper, I will arbitrarily use the number 7,500 for number of

season-ticket accounts. Now, it’s doubtful each account has solely one

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season-ticket on it. From my brief experience working as a graduate

assistant in a university’s ticket office, it wouldn’t be a stretch to imagine

that most season-ticket account holders buy between two and four tickets,

which excludes the corporate accounts, who buy tickets in the double digits,

throwing off any chance at an average calculation. So, 7,500 ticket accounts

are buying on average three tickets (arbitrarily picked number between two

packages or single game tickets to go see their Cubs play, it is safe to

assume that more people than not are in Wrigley Field because they are

Cubs fans wishing to experience the baseball game. By my math, the

majority of people in the stadium on a daily basis are Scalia’s first group of

consumers. It would not be surprising to see similar numbers for all baseball

stadiums in this country; and even less surprising to discover that these

percentages are actually being undersold. Therefore, it is not realistic that

Scalia’s second group of consumers would ever reach a high enough

percentage of stadium attendance to cause Wrigley Field to be seen as the

2017] WRIGLEY FIELD, THE TRADEMARK 59

good, as opposed to the packaging of that good. It is definitely a unique

situation for owners of stadiums like Wrigley Field to be concerned with

Scalia’s second group of consumers, but the numbers show that the concern

with this second group is de minimis, at best, for purposes of trademark

analysis. The majority of consumers in Wrigley Field are there to watch the

Cubs. The good they seek is the baseball game inside the package that is

are similar in the fact that both are buildings, popular for tourism and used

to house attractions. Their similarity warrants some analysis into this case.

If the Sixth Circuit’s reasoning is persuasive on other courts, stadiums, like

the museum at issue in this case, could likely be held to be the good rather

than the packaging. This would mean that stadiums wouldn’t be proper

subject matter for trade dress protection, thus making this paper irrelevant.

However, the view of the Sixth Circuit in regard to the Rock and Roll Hall

60 PACE INTELL. PROP. SPORTS & ENT. L.F. [Vol. 7:1

of Fame as the good was improper and should not be a bar against Wrigley

Field or any stadium seeking trade dress protection.

a. The Facts

commissioned the design and construction of the Rock and Roll Hall of

Fame and Museum (“Museum”).

living architect whose name would be recognized by more than a handful of

Americans (as jokingly pointed out by the Dissent), to design it.

the State of Ohio granted them registration of the Museum’s design for

trademark purposes.

the Foundation also had an application pending with the United States

Patent and Trademark Office for the design of the Museum.

2017] WRIGLEY FIELD, THE TRADEMARK 61

The Foundation brought this lawsuit against Charles Gentile and his

company, Gentile Productions (collectively “Gentile”), after Gentile began

selling posters of the Museum with a sunset in the backdrop.

Foundation sold a similar poster of their Museum.

taken from ground-level, when the Museum appears to be closed, includes

nothing but the Museum and the sunset, and is dubbed as “artistically

the Museum pictured on it. The Foundation presented evidence of an

advertisement for the Museum’s opening night, a paper weight, several

postcards, and two t-shirts, all of which were or had a picture of the

Museum’s exterior on it.

from the controller of the Museum, who stated that “the Museum ha[d] used

versions of the building shape trademark on T-shirts and a wide variety of

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products, including posters, since as early as June, 1993,” which is two

years before the Museum was opened.

merchandise that included or featured the exterior shape of the Museum was

among the top selling items, according to sales reports.

held that the Foundation’s extensive advertising and promotional activities

using the Museum’s design were enough to garner trademark protection and

2017] WRIGLEY FIELD, THE TRADEMARK 63

symbol, or device that identifies the source of a good. Trademark protection

is not extended to the good itself. If a building like a museum or baseball

stadium is actually the good, then how can they also be the packaging of

that good and identifiers of source? In order to understand why the Sixth

Circuit ruled this way, it is necessary to break down its reasoning behind it.

The Sixth Circuit’s issue had to do with its perception of what the building

source.

This is a problem for the Court because no landmark stands for anything but

itself. There are no source identifying qualities of a landmark. With few

exceptions, one does not stand in a town square, looking at a bronze

sculpture of a soldier, and identify the source of who made the sculpture.

People simply see the sculpture. A landmark is defined as a prominent

identifying feature of a landscape or a fixed marker of a boundary line.

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The point of a landmark is to be seen, to mark something, or for people to

recognize it. There might be some reason we know it, whether for historical

or boundary purposes, but its purpose is to be seen and recognized. Think of

a statue in a town square. There’s no source attached to it. It’s simply there

for you to appreciate or for you to use when telling someone they need to go

down three blocks and take a right when they reach the statue of the bronze

from these definitions alone that the true purpose of museums and stadiums

are to house things inside. Here, the Museum is built for rock and roll fans

to come and experience the greats of the past. It’s housing an acquisition or

collection of objects of historical value. Wrigley Field is traveled to so fans

2017] WRIGLEY FIELD, THE TRADEMARK 65

of the Chicago Cubs can come see their team play baseball. It’s a structure

for sporting events. It seems clear that, by just looking at the definition of

landmark, museum, and stadium, that the Museum’s purpose is not to solely

be recognized as just another mark on the Cleveland skyline. The building

itself is there to house and preserve the history of rock and roll. It’s there as

the packaging for which the Foundation uses to deliver its good; and its

analysis. It’s understandable how and why they erred. The evidence shown

by Gentile proved that there was a group of consumers that viewed the

Museum as a landmark and appreciated it for its beauty, in line with

Scalia’s second group of consumers. However, there should have been trade

dress protection on the Museum as a product package because the Sixth

Circuit should have known (or the Foundation’s lawyers should have

brought evidence that countered Gentile’s and showed) that the majority of

consumers saw the Museum as a house for the history of rock and roll and

that the history was the good consumed. Likewise, a proper appreciation of

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the purpose of Wrigley Field and the majority view of consumers that it is a

house for a baseball game will not disrupt its ability in being granted trade

dress protection.

c. The Dissent

Sixth Circuit Chief Justice Martin wrote the dissenting opinion in

Rock & Roll, and, unlike the majority opinion, he actually spent some time

the art that is rock and roll.

visiting the Museum are there for what is actually inside it. They fit into

Scalia’s first group of consumers. They are the group who recognize Justice

Martin’s idea that the good is actually inside the building. They come to the

Museum for the tangible and intangible elements of rock and roll that are

housed inside the walls of the museum. Justice Martin understood what

Justice Scalia was saying in his analogy of the Coke bottle and Justice

2017] WRIGLEY FIELD, THE TRADEMARK 73

Everything about Wrigley Field is aesthetically pleasing. At first, this

doesn’t look good for Wrigley Field.

However, we must look at any alternative means or whether or not

giving Wrigley’s aesthetically pleasing features trademark protection would

provide them an unfair advantage over competitors. This answer is simple.

There’s twenty-nine other Major League Baseball teams, and all have their

season than Wrigley had.

protection wouldn’t give any other baseball teams an unfair advantage in

drawing their own fans to the game, and aesthetic functionality should not

be a bar against Wrigley Field being granted trade dress protection.

2. The Fifth Circuit and a Mixed-Matched Golf Course

The Fifth Circuit was able to apply functionality to a similar

commodity as Wrigley Field. In 1998, three nationally-known golf courses

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brought a trademark infringement action against a course in Texas that was

copying certain golf holes. The court granted one of the courses trade dress

protection in their golf hole. That ruling was based more on secondary

meaning, but the court does do a good job of walking through a

functionality analysis before getting to that point. This case is included

because both baseball stadiums and golf courses find themselves in the

designed exclusively of golf holes copied from famous golf courses from

across the country.

parties and video tapes of the golf holes in order to recreate these holes.

“America’s Greatest 18 Holes” was what Tour 18 marketed itself as in

regional and national publications.

placed to indicate to each golfer about to tee off which nationally-known

2017] WRIGLEY FIELD, THE TRADEMARK 75

golf hole they were about to play.

disclaimer on their scorecards and yardage guide: “The design of this course

was inspired by great holes from 16 different golf courses. None of the

courses endorse, sponsor, or are affiliated with Tour 18.”

included disclaimers on the course signage and in some, but not all,

advertisement and promotional materials.

from their Pebble Beach Golf Links course.

of Pinehurst, Inc., owns and operates seven courses in the Pinehurst, NC

area.

final plaintiff was Sea Pines Co., Inc., who owns and operates Harbor Town

Golf Links in Hilton Head, SC.

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from the Harbor Town course, which included a lighthouse sitting in the

water behind the eighteenth green.

federal trademark, a registered copyright, or a utility patent on the copied

golf holes.

b. The Fifth Circuit’s Functionality Issue in Pebble Beach

Trade dress is not protectable if it is functional.

disadvantage.”

will not be stifled because a limited number of trade dress options have

been claimed before new competitors can enter the market.

when the trade dress combines several features, it must be asked whether or

not the whole combination is functional.

2017] WRIGLEY FIELD, THE TRADEMARK 77

Equipped with these definitions of functionality, the Fifth Circuit

dove into applying them to the golf holes at hand. The district court held

that these golf-hole designs were non-functional.

on Tour 18’s own witnesses. One of their experts testified that protecting

the design of these golf holes would not unduly injure competition.

Tour 18’s marketing director testified that a golf course need not copy golf-

court’s analysis and held that the design of the golf holes were non-

functional.

3. Conclusion on Functionality

So, what makes a stadium work? What are Wrigley Field’s essential

elements? A person building a baseball stadium would start with a field to

play baseball on and some sort of seating for fans to come watch. Go to

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your nearest little league or high school baseball stadium. What more is

there? If you strip a stadium down to its bare essentials, you have a field

and you have some room for spectators. That’s it. Adding ivy to the outfield

walls, hanging a red marque sign out front, and having seating on the

rooftops on your neighbors’ buildings are not essential to a basic stadium.

Those things are arbitrary and ornamental. What makes Wrigley Field

descriptive, suggestive, and arbitrary or fanciful marks.

“the name of a particular genus or class of which an individual article or

2017] WRIGLEY FIELD, THE TRADEMARK 79

protection.

Movie Theater,” that would be a generic term because that’s the class of

service it’s a part of. To put simply, it’s a movie theater, so it can’t receive

trademark protection on the name, “The Movie Theater.” A descriptive term

is one that “identifies a characteristic or quality of an article or service” and

descriptive terms may only receive trademark protection if the seeker of

their restaurant before thinking of other burger restaurants. A suggestive

term suggests, rather than describes, some particular characteristic of the

goods or services to which it applies and requires the consumer to exercise

the imagination in order to draw a conclusion as to the nature of the goods

or services.

Bicycles. In order for customers to determine that’s a bicycle shop, there

must be some exercising of their imagination, making the name a

suggestive term. An arbitrary or fanciful term bears no relationship to the

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products or services which they are applied to.

computer company is probably the most popular example of an arbitrary

term. Suggestive and arbitrary terms do not require secondary meaning and

are normally automatically protectable as trademarks.

Based on the ruling soon to be discussed in Two Pesos, Wrigley

Field could be deemed inherently distinctive and not require a showing of

should already be satisfied.

1. Mexican Food and Kids’ Clothes

In Two Pesos, the Supreme Court held that product packaging could

be inherently distinctive, thus not require secondary meaning.

Cabana opened six Mexican restaurants in San Antonio, Texas, starting in

1978.

with “artifacts, bright colors, paintings and murals.”

2017] WRIGLEY FIELD, THE TRADEMARK 81

restaurant had a “festive and vivid color scheme.”

Houston, Texas in 1985 and adopted a motif very similar to Taco Cabana,

but it never entered the San Antonio market.

Pesos for trade dress infringement in 1987.

there was no persuasive reason to apply to trade dress a general requirement

of secondary meaning because it would be at odds with typical trademark

appearance of a product. In Wal-Mart, the plaintiff, Samara, designed and

manufactured children’s clothing; its primary product being a line of one-

piece decorated seersucker outfits.

several of Samara’s 1996 spring/summer line of clothing and sent them to

Judy-Philippine, Inc. to reproduce at a cheaper price.

Inc. copied, with some minor modifications, 16 of Samara’s garments;

82 PACE INTELL. PROP. SPORTS & ENT. L.F. [Vol. 7:1

produced their copy of them for Wal-Mart; with which, Wal-Mart took and

sold to their customers.

gross profits through these knockoff sales.

design could not be inherently distinctive, thus requiring secondary

meaning.

required.

of golf holes.

created nothing more than golf holes.

imagination to realize that one is viewing a golf hole.

other hand, was inherently distinctive.

facts of the case, the eighteenth hole at Harbor Town incorporated a

2017] WRIGLEY FIELD, THE TRADEMARK 89

policy of wanting to grant Nike this trademark in the first place. However,

the Museum is not the good, instead it’s the packaging of the good. In his

dissent, Chief Justice Marshall goes back to the analogy of the Coke bottle

to further his point, which mirrors the point being made by this paper.

The Nike swoosh is a two-dimensional mark. You cannot look at it

from many different angles or see it in many different lights. It is what it is.

“Coke bottle.”

or through photograph, it will always be recognizable as the packaging that

the good is delivered through.

More times than not, the packaging of something is considered in

the three-dimensional realm. One must be able to view something in the

three-dimensional realm from all angles, with no angle being more

important than the others. It simply doesn’t make sense that you would only

care about the front of a box, for instance. The logo may be on the front, but

90 PACE INTELL. PROP. SPORTS & ENT. L.F. [Vol. 7:1

the back of the box is necessary to hold the goods inside. If a company

wishes to extend their trade dress to the back of the box, it should still be

protected. Stadiums are the same way. The entire stadium houses the good.

The front of Wrigley Field holds the majority of the stands, but the stadium

still surrounds the outfield and fully encompasses the entire field. In what

way does looking at Wrigley Field from the rear, from outside the outfield

dress and shown their application to stadiums, specifically Wrigley Field. In

the beginning, the law was introduced and explained. In Part II, this paper

took you through each step needed to establish trade dress protection. First,

there must be valid subject matter to extend trade dress protection too and it

must be determined what type of subject matter we have. Second, it must be

determined that the mark is not functional. Third, one must show either

inherent distinctiveness or secondary meaning, depending on what subject

2017] WRIGLEY FIELD, THE TRADEMARK 91

matter you are presented with. And, finally, the mark must be used in

commerce.

In conclusion, stadiums, like Wrigley Field, can get trade dress

protection. They are proper subject matter for trade dress protection because

stadiums are the product packaging that identifies the good that takes place

inside. A stadium, with enough arbitrary or ornamental aspects added to it,

This paper raises so many implications. For instance, to what extent

does trade dress extend? The St. Louis Cardinals use the St. Louis Arch in

almost all of their promotional items for All-Star Games, they occasionally

cut its likeness into the outfield grass, and it’s visible during every televised

home game. Do the trade dress rights of the Cardinals in Busch Stadium

extend to the St. Louis Arch? Second, I chose Wrigley Field, not just

because it’s one of the most historic and famous parks in America, but

because, if the Cubs do have trade dress in the stadium, was the third-party

not connected with the Cubs and selling tickets to watch the Cubs from the

92 PACE INTELL. PROP. SPORTS & ENT. L.F. [Vol. 7:1

neighboring rooftops actually infringing on the Cubs trade dress? Thirdly,