Worn, and therefore owned

When did the Cowboys star start meaning more than the team? The question pictures a logo drifting away from the organisation that owns it, carried off by everyone who wears it, draws it or hates it, until it stands for Texas, or Dallas, or swagger, or a family's Sundays. What the star means on a stranger's cap is unmeasured in anything read here. What the record does date is the moment the wish to wear a team's symbol for its own sake reached the courts, and what they made of it. In the federal circuit that hears appeals from Dallas, the wish to wear a team's emblem became the proof that the emblem is the team's. The escape and the capture are the same event. Short of the owner giving it up, the law's exit opens only when a logo stops meaning its owner, which is the reverse of meaning more.

The shape was public long before the team had it. The Texas state flag, adopted in 1839 as the flag of the Republic, carries "one white, regular five-pointed star".¹ The team credits Jack Eskridge, an equipment manager who was among Tom Landry's first hires in 1959, with designing the white-bordered blue star that replaced its first star, a white one.² The team's filings date the first use of a star mark for football games to April 15, 1960.³ By the team's account, a mark of the star with a football helmet was on clothing and trading cards in September 1963.⁴ "A STAR with a border design" went onto candles, umbrellas, piggy banks and toy trains in 1975, the filings say.³

Whether a team owns its symbol when the symbol itself is what is sold reached a federal appeals court from the Northern District of Texas, in a case about hockey.⁵ In April 1972 Dallas Cap & Emblem sold about 24,603 embroidered patches copying the symbols of National Hockey League teams, without a licence.⁵ The trial court found no likely confusion, since a fan would not think the teams had made the patches or had some connection with them, and noted that the mark was "in effect, the product itself."⁵ In 1975 the Fifth Circuit reversed.⁵ It held that "the certain knowledge of the buyer that the source and origin of the trademark symbols were in plaintiffs" satisfied the law's requirement of confusion.⁵ It limited the ruling to emblems sold "to show public allegiance to or identification with the teams themselves", and it admitted that the decision "may slightly tilt the trademark laws from the purpose of protecting the public to the protection of the business interests of plaintiffs."⁵

Five years later the Ninth Circuit, in a case about jewellery bearing the emblem of a young women's fraternal order, took the other road.⁶ "We commonly identify ourselves by displaying emblems expressing allegiances," it wrote, naming among them "the sports teams we support", and it called it "naive" to think such emblems are wanted because buyers believe the organisation made or sponsored the goods.⁶ It rejected the hockey decision's reasoning, called its tilt "not slight but an extraordinary extension", and held that a trademark owner has a property right "only insofar as is necessary to prevent consumer confusion as to who produced the goods and to facilitate differentiation of the trademark owner's goods".⁶ That is the escape the question imagines, put in a court's words.

In 2008 the Fifth Circuit held to its own road, in a case about t-shirts in the colours of Louisiana State and three other universities, reasoning that fans "perceive the university as the source or sponsor of the goods because they want to associate with that source."⁷ It dismissed the argument that such shirts let people bond, express loyalty and show which team they follow as "nothing more than the kind of aesthetic uses at issue in Boston Hockey."⁷ In that circuit the desire to belong counts as evidence that the symbol is owned.

Meaning that other people write has gone the same way. In 1979 Bob Ryan of NFL Films, the league's film subsidiary, titled the Cowboys' highlight film of the previous season "America's Team".⁸ He recalls a team that was "ratings gold", a fixture of Monday Night Football and CBS doubleheaders.⁸ Tex Schramm, he says, loved the name and "adopted it for all things Cowboys", while the coach, Tom Landry, "hated it."⁸ The name "caused a storm of controversy," Ryan says: "Cowboys' fans loved it but a lot of people wanted to know what gave the Cowboys the right to be called 'America's Team.'"⁸

The holders of a 1995 registration of the phrase spent years asking the team to pay for it, and in 2006 the Cowboys and NFL Properties sued the holder in the Northern District of Texas.⁹ Their filings included "dozens of nationally distributed newspaper stories and even letters to the editor dating back to the late 1970s".⁹ One of the team's lawyers had written that "Rights in a trademark accrue by usage–NOT by ownership of a registration."⁹ The team's lawyers now cite the court's 2009 decision in that case as recognising "the fame and strength" of the club's marks.³ Much of the usage the team put in evidence was other people's, and people arguing over a name are using it.

Under federal dilution law a mark is famous if it is "widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner", and courts may weigh how it was "publicized by the owner or third parties."¹⁰ The owner of a famous mark can stop a use likely to blur or tarnish it "regardless of the presence or absence of actual or likely confusion".¹⁰ In 2022 the Cowboys and NFL Properties opposed an application to register ONE STAR ONE FAMILY, with a design, for fan clubs, football events and charity fundraising.³ Their notice said that one or more of the team's star marks had become famous and "are associated exclusively with Opposers".³ After a notice of default, the board sustained the opposition and the application was abandoned.¹¹

A petition to cancel a registration can be filed at any time if the mark becomes generic, is functional or has been abandoned.¹² A mark is abandoned when its owner stops using it with intent not to resume, or when "any course of conduct of the owner" makes it "lose its significance as a mark", a question on which "purchaser motivation shall not be a test".¹³ Genericness is judged by "the primary significance of the registered mark to the relevant public rather than purchaser motivation".¹² The Fifth Circuit counts showing loyalty as an aesthetic use and "has consistently rejected the concept of aesthetic functionality."⁷ Why people buy the star, for Texas, for a grandfather, to annoy a neighbour, is excluded twice over. What could count is what the public takes the star to mean.

The dilution law leaves alone parody, criticism and commentary that do not use the mark as a brand of their own, news reporting, and "any noncommercial use of a mark".¹⁰ The star painted on a face, drawn on a sign or mocked in a cartoon has been the public's all along, because no one is selling it. On everything that is sold, a star that means the team and Texas too is a stronger mark than one that means the team alone. Short of the team letting it go, the star goes free only if the people who now wear it as the Cowboys' forget the Cowboys.