Most mornings, not long after waking up, Martin McCaulay walks past stacks of merchandise for imaginary football teams, sits down at his computer desk and checks on his plan to win a six-figure payout from the Washington Redskins.
McCaulay logs on to the U.S. Patent and Trademark Office’s searchable database. He types “Washington,” hits “Enter” and scrolls through thousands of words and phrases. McCaulay’s looking for football team names. He’s looking for competitors.
McCaulay is a trademark squatter, someone who registers a trademark in the hopes a company decides it wants to use that name and agrees to pay a bounty for it. It is a strategy that faces long legal odds, experts say, but McCaulay is undeterred. There are a few other squatters out there trying to lock up the rights to future names for the Redskins, but over the past year McCaulay — a bald, soft-spoken 56-year-old actuary for the Department of Energy — has established himself as the most prolific.
McCaulay has snapped up the rights to eight possible names for a football team from Washington — from the reasonable (Washington Bravehearts) to the unlikely (Washington Pandas) — and he has applied for the rights to eight more. He has spent more than $20,000, he said, on trademark fees and team merchandise, an amount he hopes will reap a massive return if Redskins owner Daniel Snyder decides to change his club’s controversial name to one McCaulay has already trademarked.
Trademark squatting is more common in places where the law is more favorable to the practice, such as China. In 2012, Apple paid a Chinese company $60 million for the rights to “iPad,” a massive settlement that demonstrated the possible payoff in trademark speculation.
American trademark law is different, though. U.S. courts place supreme importance on use of a trademark. To establish and keep trademark rights here, legal experts said, you must actively use a trademark in commerce.
“You can’t just decide, ‘Oh, I think this will be a really good name for the Redskins,’ file a trademark application and then hold them hostage,” local trademark attorney Josh Gerben said.
And this is why McCaulay has had to buy — and offer for sale on the Internet — thousands of dollars of merchandise for football teams that do not exist.
On a recent afternoon, McCaulay showed off his stockpile of make-believe football team memorabilia: an array of clothing, kitchenware and collectibles that has overtaken the one-bedroom Alexandria condo he shares with his tiny white Maltese dog, Penny. Washington Bravehearts coffee mugs, plastic cups and miniature footballs were stacked on top of kitchen cabinets. Bravehearts foam fingers filled a nearby shelf.
Across his kitchen counter and a table, McCaulay had arranged the rest: coasters, coolers, tote bags, T-shirts, sweatshirts, shoes, hats, beer glasses, wine glasses, bumper stickers, calendars and more, all bearing the names, logos and colors of fictitious teams like the Washington Sharks, Gladiators and Generals.
For the name he has the highest hopes for — the Washington Americans — McCaulay even had trading cards printed (they all have McCaulay’s picture on the front, his vital statistics on the back) and tickets for a game between the Americans and “VISITORS.” (Face value is $1,000. “Those are really good seats,” McCaulay explained.)
McCaulay declined to say whether he had actually sold anything.
“I’m not really interested in making money selling my products. The only way I’ll turn a profit is if the Washington Redskins or the NFL needs to buy one of my trademarks,” he said.
Sales are important from a legal perspective, though. Just listing products for sale doesn’t keep you safe in the event someone — say, an NFL franchise owner with an active legal team — challenges your trademark rights in court.
“He couldn’t enforce the trademarks unless he can back them up with business records that show he has legitimate and ongoing sales,” Gerben said. “You can’t just sell one shirt a year on a Web site.”
The Web site where McCaulay lists his stuff for sale — washingtonamericansfootball.com — also validates another set of trademark rights he has obtained, to run Web sites that report news about these teams.
Because there are no teams yet, McCaulay applied to run Web sites “featuring information relating to the sport of football,” language set by federal trademark officials. McCaulay interpreted that language literally. His Web site currently features information like “Number of players: Each team has eleven players on the field at a time” and “Winning: The team with the most points at the end of the game wins.”
When he saw McCaulay’s Web site for the first time, Gerben laughed.
“I wouldn’t want to be the one to try to defend this in court,” he said.
In response to questions about McCaulay, Redskins spokesman Tony Wyllie released a written statement.
“We have no concerns related to Mr. McCaulay’s actions. They will have no impact on the Washington Redskins and its organization,” it read.
Redskins lawyers have left McCaulay alone, for the most part. They are waging one trademark-related legal battle: a lawsuit against five Native Americans who successfully convinced federal officials to cancel the team’s trademark registration because of the name’s offensive connotation.
The club’s lawyers objected only when McCaulay tried to get the rights to “Washington Original Americans,” too similar to the “Original Americans Foundation,” the nonprofit Snyder created to benefit Native Americans.
McCaulay regrets the money he wasted on that application and also the one for Senators, a moniker still owned by the Washington Nationals.
McCaulay regularly searches the Internet for stories and discussions about new names for the Redskins. He also spends time every day monitoring the federal trademark database, checking the status of his applications and keeping an eye out for competition.
The time-consuming and tedious nature of this hobby appeals to McCaulay, who has worked as an actuary for several government organizations. He is also a part-time author who specializes in a mundane and esoteric genre. McCaulay has written and self-published more than 70 books, most of them study guides and sample tests for obscure professional exams.
McCaulay never has consulted a trademark attorney, but he didn’t disagree when told their assessment of his prospects if the Redskins did want one of his names and challenged his use of the trademark in court.
If Snyder does pick one of McCaulay’s names as the new identity for his pro football club, McCaulay hopes Snyder leaves the lawyers out of it. Maybe the Redskins owner will think legal action is too complicated, McCaulay mused. Maybe Snyder will even admire McCaulay’s business pluck and just cut him a check.
“I know it’s a long shot. I know it’s a high-risk investment,” McCaulay said. “I’m just trying.”