For those of you who don’t know what a "flugtag" is:

Red Bull Flugtag (German: flight day, airshow) is an event owned and operated by Red Bull in which competitors attempt to fly homemade human-powered flying machines. The flying machines are usually launched off a pier about 30 feet (9.1 m) high into the sea (or suitably sized reservoir of water). Most competitors enter for the entertainment value, and the flying machines rarely fly at all.

Later today they’re holding a "flugtag" in Philadelphia for the first time.

So what’s a Philadelphia Phillies-loving flugtag team to do?

"We put our hearts and souls and, like, 400 man-hours into our Phanatic," said an emotional Julie Jones, leader of the Phlyin’ Phanatics, one of 32 five-person crews ready to compete in energy-drink Red Bull’s Flugtag – an annual exhibition of homemade aircraft launched off a "flight deck" into water.

"I’ve been going to Phillies games since I was a toddler, and the Phillie Phanatic was always a favorite," Denard said. "The dude came up to the nosebleed seats on a 110-degree day and gave me a belly dance on my 10th birthday. That was the coolest thing ever."

They built themselves a massive Phillie Phanatic. As Julie Jones notes in the comments to the story:

Red bull approved our sketches, skit and costumes 3 months ago. They monitored our progress through pictures and site visits along the entire process. We did not build this without their knowledge and approval.

Ah, but if there’s one thing a for-profit entertainment corporation hates, it’s the good people of Philadelphia having Phillie-fun without shelling out Philly-money:

Yesterday afternoon, Jones said, "the Red Bull liaison told us that Major League Baseball won’t let us fly with the Phanatic’s head on our craft. We were so passionate about that head. We spent months changing it over and over again so that it would look just like him. We’re really disheartened now."

I’d love to hear the theory behind the objection. I’m not even sure what the trademark at issue even is. Searching the USPTO doesn’t reveal much for "Phanatic," and the only trademark I can see being violated is that for the stylized "P" on the Phanatic’s hat — but that’s a far cry from the entire head, particularly when that head is little more than a slightly-modified Sesame Street "Honker" wearing a Phillies hat.

More to the point, as the Supreme Court clarified in KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 125 S.Ct. 542, 545-46, 160 L.Ed.2d 440 (2004) that a plaintiff alleging trademark infringement has the burden of proving a "likelihood of confusion" to prevail. There’s no strict liability merely for using someone else’s trademark. Before we even bother with issues like "fair use," the plaintiff has to show that likelihood of confusion.

The actual statute in question (Section 43(a) of the Lanham Act) creates liability for:

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which– 


is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person …

Frankly, I think there’s a big problem right up in the beginning — how is the Phanatic being used "in connection with any goods or services?" The Phlyin’ Phanatics surely aren’t selling anything.

It’s unclear if even Red Bull is selling anything by way of the flugtag designs. Red Bull sponsors the event, which has free admission, and everyone knows that the teams are independent of Red Bull. That’s how a team of Coast Guard members participated earlier this year — with a hilarious spoof on their own helicopter — and no one thought the Coast Guard was endorsing Red Bull.

But apparently not so for The Phillies.

Getting back to the law, at least here in Philadelphia, part of the Third Circuit, how could there be a likelihood of confusion?

"To prove likelihood of confusion, plaintiffs must show that consumers viewing the mark would probably assume the product or service it represents is associated with the source of a different product or service identified by a similar mark." Checkpoint Sys., 269 F.3d at 280 (internal quotation marks removed). In Interpace Corp. v. Lapp, Inc., we set forth the factors which may indicate a likelihood of confusion:

(1) the degree of similarity between the owner’s mark and the alleged infringing mark;

(2) the strength of the owner’s mark;

(3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase;

(4) the length of time the defendant has used the mark without evidence of actual confusion arising;

(5) the intent of the defendant in adopting the mark;

(6) the evidence of actual confusion;

(7) whether the goods, though not competing, are marketed through the same channels of trade and advertised through the same media;

(8) the extent to which the targets of the parties’ sales efforts are the same;

(9) the relationship of the goods in the minds of consumers because of similarity of functions; and

(10) other factors suggesting the consuming public might expect the prior owner to manufacture a product in the defendant’s market or that he is likely to expand into that market.

721 F.2d at 463. "None of these factors is determinative in the likelihood of confusion analysis and each factor must be weighed and balanced one against the other." Checkpoint Sys., 269 F.3d at 280. In reviewing a district court’s analysis of the Lapp factors, we can reverse the court’s conclusions if the relevant factors are not properly set forth and not properly weighed. See Kos Pharmaceuticals v. Andrx Corporation, 369 F. 3d 700, 711-12 (3d Cir. 2004).

Sabinsa Corp. v. Creative Compounds, No. 08-3255 (3d Cir., July 9, 2010). The Phillies might have a point on 1 and 2, but the rest is a wash.

Unfortunately, there’s not much the Phlyin’ Phanatics can do about it now. Red Bull has to let them get on that stage, and it looks like they caved once The Phillies started complaining that someone was having fun without paying them for it.

I suppose the Phlyin’ Phanatics could have, in theory, a "justified reliance" claim (see Lenihan v. Howe, 449 Pa. Superior Ct. 426, 432 (Pa. Super. Ct. 1996)) against Red Bull for leading them along and then backing out, but, really, not everybody should threaten to sue over everything.

Leave that to The Phillies.