There once was an all-volunteer community live theatre group that put on a variety show each year as one of their planned productions. One season they decided on a hillbilly theme, and in fact called it “Hee Haw Live!” The plan was to do comedy skits along with zany bits and songs from the “Hee Haw” television show made popular in the 1970s. The theatre group printed posters, held auditions, began rehearsals and started their advertising locally as well as online.
Then one day, an officer on the board of directors of this theatre group received an email from an attorney. The lawyer stated he represented the persons who actually own the “Hee Haw” show, its songs, likenesses, any artwork (such as the donkey logo), and any other items that made the show famous. The email directed the theatre group to cease and desist their efforts on calling their show “Hee Haw Live!” or this group could pay the owners a rather large royalty fee for the rights to refer to their show “Hee Haw” and continue forward.
The Seattle Seahawks call their fan base “The 12th Man.” If you watch a game on TV, you will see the number 12 flag flying and numerous folks in the crowd with the number 12 on jerseys. In fact, the Seahawks are the only major sports team in the United States that have retired an actual jersey just for the fans: the number 12.
But, the Seahawks do not own the copyright to the slogan “The 12th Man” - Texas A&M University (A&M) does. And just like the “Hee Haw” attorney, the Seahawks got a letter one day demanding the use of the moniker to stop.
In 1989, Texas A&M University filed the necessary paperwork with the United States Patent Office for four patents relating to the “12th Man” slogan. The following year, they were approved and granted achiever incontestable status.
At different intervals in the 1990s, the Buffalo Bills, Indianapolis Colts, Seattle Seahawks and Chicago Bears began using the “12th Man” as a fan nickname in some manner similar to teams calling their fanbases “Nation”, “Club”, “Heads” or “Army.” Each of these teams was contacted by A&M and quickly responded to the request, then most stopped using the term.
The Seahawks are sued
The Seahawks, however, went down a different path.
Seattle simply ignored the request. In January of 2006, just days before the Seahawks were to play in Super Bowl XL, A&M filed a lawsuit stating trademark infringement. It was labeled the “12th Man Trademark Lawsuit.” Then, 10 days before this hearing was set in court, A&M and the Seahawks reached an agreement on July 21, 2006. Seattle was to pay A&M $100,000 up front, then a $5,000 royalty payment once a year for five years. This allowed the Seahawks limited use of the term “12th Man.” In essence, A&M became the “licensor” while Seattle was the “licensee.” Just like the “Hee Haw” situation.
In the agreement, the Seahawks were not allowed to sell merchandise with the “12th Man” slogan but was allowed to raise the “12th Man” flag at games. Only jerseys with the number 12 could be sold, but without any mention on the jerseys about the 12th Man – just the number.
The Seahawks became an excellent partner with A&M. Third party affiliates became an issue, however. A lot of folks do not realize that something as simple as using “12th Man” on anything offered for sale could - and has been – legally trademarked. A&M has since sent out over 200 pieces of mail requesting that each source cease and desist from using their trademark. The trademark even has its own email address and website: http://trademarks.tamu.edu/reportViolation.html.
After the five year contract came to a close, another agreement with the Seahawks was made in 2011 and again executed in August of 2016 of a third installment. This latest contract had a new specification though: the Seahawks cannot ever use the term “12th Man” in their stadium’s “Ring of Honor” or any social media account. The latter stipulation was aimed at Twitter accounts which did not exist in the original agreement. The financial terms of the current agreement had the Seahawks pay $140,000 plus a royalty fee of $18,000 a year, plus an additional $10,000 a year to assist A&M’s continued efforts to battle the numerous attacks on the school’s trademark infringement. The Seahawks still cannot sell “12th Man” merchandise.
Meanwhile, in 2014 the Seahawks applied to trademark the number “12”, “The 12s”, “The Spirit of 12” and “We Are 12” without it being specified “12th Man.” Team owner Paul Allen was granted trademarks for each of these except the number “12” by itself. The United States Patent Office would not ever want any entity to be able to use something in the common domain such as the number 12 by itself. Think of all the backlash that would occur. Hotels would have to pay to have floor number 12. Any sports team could no longer have a jersey with the number 12, or else pay a royalty. And on and on in society.
Currently, the Ohio State University has applied to have the word “The” patented to which their school would have private use of the term. If granted, anyone who ever used the word would be subjected to an attorney’s letter requesting a predetermined sum. Already in this article, the DBN editors would be broke.
In the past few seasons, Seattle has used the “The 12s” trademark more and more and relied less on the “12th Man” slogan.
The Colts are sued & other NFL clubs claim the usage
A&M had an issue with another NFL club. In 2008, the Colts added “12th Man” to their stadium’s “Ring of Honor” as an adornment specifically to their fans. In addition, the Colts sold “12th Man” merchandise and during each home game presented one fan a “12th Man Award.” A&M subsequently filed a lawsuit to protect their trademark. A&M cited that back in 2006 Indianapolis responded to their cease and desist letter by stating they wanted a resolution to the trademark matter. A&M suggested an agreement similar to the one with the Seahawks that would allow the Colts to limited use of the phrase “12th Man” with a comparable financial structure and conditions to restricted usage.
When the Colts did not respond, A&M assumed that the NFL club had ceased all usage of its trademarked property. However, the franchise began using the trademark once again in the following fashion: 1) added the trademark to the stadium’s “Ring of Honor”, 2) began selling “12th Man” blankets on its website and on NFLShop.com, 3) promoted a “12th Man Prize Van”, 4) “12th Man” signage throughout the Colts stadium, and 5) began an email campaign offering fans the opportunity to “Join the 12th Man.” With this new information, A&M sent out two cease and desist letters. When these attempts were ignored, this forced them to file a lawsuit. One month later, NFLShop.com quit selling the blankets.
In February of 2016, the Colts and A&M reached an agreement and the suit was dismissed with no money changing hands. Instead of Indianapolis paying a fee like the Seahawks, the club decided to stop the usage altogether and remove the “12th Man” icon from their “Ring of Honor.” A report by Joseph Mandour on the Mandour & Associates Property Law website states that “the Colts decided the phrase itself was more important to Texas A&M than to us and we didn’t feel making a change was a big issue for the vast majority of Colts fans.”
The Buffalo Bills also have an agreement with A&M, but that is for very limited use inside their stadium only. The Bills had a “12th Man Walk of Fame” that they renamed “Tim Russert Plaza” in 2008. Buffalo inducted the “12th Man” as the seventh member of the Buffalo Bills Wall of Fame in 1992 honoring the fans who remained loyal to the Bills’ four consecutive Super Bowl appearances.
In one other instance involving an NFL team, A&M sent out another cease and desist letter to the Denver Broncos when a parachutist was involved in pre-game activities during a 2012 playoff game carrying a flag with the words “12th Man” on it.
In another NFL-related usage of the term “12th Man”, as reported by The Buffalo News, a loyal Bills fan named Chuckie Sonntag started the website “12thManThunder.com” as a method to keep the Bills in Buffalo after owner Ralph Wilson passed away. The thought was that the Bills would relocate to Toronto and the website offered fans the opportunity to sign an online petition. After being contacted by A&M, the site was renamed “BillsFanThunder.com.”
So, only two NFL teams actually use the moniker “12th Man” and each has to pay for that privilege. Since the franchise’s inception in 1976, the number 12 jersey that the Seahawks retired in honor of its fans was officially only worn by one player, backup quarterback Sam Adkins. The idea to retire the jersey was submitted by Seahawks’ fan Karen Ford.
Texas A&M’s claim for owning the trademark
How A&M decided to trademark the slogan “12th Man” has a story of its own.
In a January 1922 football game against Centre College in the Cotton Bowl, A&M head coach Dana Bible’s roster was seriously depleted because of injuries. A&M was down to 11 healthy players in the second half. Bible then enlisted a student from the stands, E. King Gill, to suit up and stand on the sidelines in case he was needed to play. Gill had left the football squad after the regular season in order to compete on the basketball team but did not have the experience to compete at the varsity level. As it turned out, Gill was not needed, but the legend of the 12th man began with this game in that the fan base was always there. A&M won 22-14 as Gill stood the entire second half in uniform just in case his team needed him.
Another tradition began from this event that has touched every college team and every game. Since the day Gill left the stands to be at the ready, the entire A&M audience has stood the entire contest ready to enter the game when called upon. Today, at most college football games the crowd now stands for most - if not all - of the entire contest.
A&M has claimed that the “12th Man” phrase had been in use ever since that game against Centre. In 1980, a bronze statue was erected at a cost of $22,000 to honor Gill in his football uniform with the inscription “The Twelfth Man.” Today, the athletics department website of A&M is 12thman.com.
First usage of “12th Man”?
But A&M is not the first to use the term “12th Man” – just the first to trademark the slogan and thus capitalize on its financial merit.
Because American football was derived from the games of soccer and then rugby, a 12th man was used to describe the first substitute players similar to the “sixth man” recognition used in basketball. Another early usage of the term 12th man was parlayed on a football referee in that the ref would inadvertently help one team or the other. In the October 9, 1905, edition of the Coshocton Age newspaper in Ohio, the account of the game went as follows: “The referee, penalized the Coshoctons twice for five yards each time for offside playing which was only in his imagination. This help from the twelfth man, however, put the pigskin up close enough to the goal so as it could be forced over for the first touchdown.”
Even earlier is the first known account of the 12th man in the September 1900 edition of Minnesota Magazine: “The mysterious influence of the twelfth man on the team, the rooter, should be as great as any of the rest.” The rooter was a description of the fan as a reference about University of Minnesota football games. The Iowa Alumnus publication stated in November of 1912: “The eleven men had done their best; but the twelfth man on the team, the loyal spirited Iowa rooter, had won the game for old (the University of Iowa).”
And then there was speculation that the twelfth man wasn’t a man at all, in fact, it was a woman. Take for instance this October 22, 1922, issue of the Los Angeles Times: “The school cheerleader is the twelfth man on the football team.”
High school football even has it’s etched into the 12th man theory. In the October 3, 1926, issue of the Port Arthur News, the article regarding the local Texas high school football game gave this rendition: “Coaches of this day and time realize the value of the ‘twelfth man’ in a football game. This ‘twelfth man’ is the rooting section.”
In the 1967 book “Football Lingo” by Paul Zimmerman, on page 122 it lists the twelfth man as a football term. However, it does not mention Gill and his exploits in the Cotton Bowl. Instead, it tells of a game between Dartmouth and Princeton in 1935. Back then, spectators were allowed to stay on the sidelines and crowd the playing field (George Halas of the Bears was famous for selling sideline standing-only tickets). In this game, fan George Larsen came from the crowded sidelines to aid Dartmouth in a goal-line stand to stop Princeton halfback Jack White from scoring. Larsen was escorted from the stadium, but his efforts as a twelfth player on the field - thus the 12th man - gained him nationwide recognition from a single play. Zimmerman goes on to write “the Dartmouth fan immortalized himself as the twelfth man on the team.”
All of this notoriety of the invention of the “12th Man” has taken a backseat once A&M trademarked the slogan. There are instances where A&M’s fan base was described as the “12th Man” years before it was branded. The October 24, 1924, issue of the A&M student newspaper The Battalion states: “It is going to take the combined fight of both the team and the twelfth man to win Saturday, so be ready when the time comes to go.” Another was reported in the December 18, 1938 edition of The Dallas Morning News in a game between A&M and the University of Texas: “Whether they play now on a team, used to play back in the day, follow the game closely or just quarterback from the grandstand occasionally, every football enthusiast well knows how much that twelfth man in the stands means to any football team.”
In fact, the entire state of Texas may have had a claim on the term. Apparently, the usage of the twelfth man to describe the fans in attendance was a statewide ritual. In an article in The Simmons Brand which covered Baylor College and Simmons College, the October 4, 1924, issue explained: “The expression the twelfth man, which is becoming common in colleges throughout the state (of Texas), as designating the support of the student body.”
“12th Man” timing
For what it’s worth, Texas A&M owns the trademarked slogan and the Seattle Seahawks and Buffalo Bills rent it and pay dearly for the privilege. Before 1989, any one of us could have applied for the rights and now gather the annual income - yet did not.
Otherwise, the “12th Man” is a well-known affectation generally self-awarded wherever and whenever some publicist is dry on other subjects about which to write.
The Seahawks claim the “12th Man” can’t be beaten - but it can be rented.
Barry Shuck is a pro football historical writer and a member of the Professional Football Researcher’s Association.