The AFL’s new Tasmanian team’s name could apparently cause legal wrinkles because US entertainment company Warner Bros. owns trademarks related to the tornadoing terror the Tasmanian Devil.
The controversy even reached Australia’s foreign minister Penny Wong, who told 2GB radio in Sydney she was “shocked” to hear the common name for an animal was trademarked by a multinational media company.
But as Monash University intellectual property rights expert Dr Andrew Moshirnia tells Cosmos, lawyers won’t suddenly be knocking on the door of anyone who starts throwing the phrase Tasmanian Devil around.
However using common and scientific names for things from species, to space bodies, to chemicals and substances, is not unheard of.
Moshirnia points out that natural phenomena are often used for trademarks, like koala (also a bedding company), Mars (both a planet and a confectionary company) and apple (technology products).
“You can use a natural phenomenon as a trademark and, in fact, that is very common,” Moshirnia says.
But there are protections that stop companies monopolising the name of the very thing they produce.
Take the explosion in the global hydrogen sector. A company might want to sell hydrogen fuel to markets thirsty for alternative fuels. No problem there. But calling your hydrogen-bottling company after the universe’s most abundant element, however, might get knocked back by the IP registrar.
Basically, you couldn’t call your company that sells hydrogen, ‘Hydrogen’.
“If you’re using a generic term of your product, as the mark of the product, that’s not OK,” Moshirnia says.
“If we sell butterflies, calling our mark ‘butterflies’ is not going to be OK. The issue is not that it’s a natural phenomenon.
“The thing is that it can’t distinguish the source, because it is the thing.”
Where conflict between the makers of Looney Tunes (not Looney Toons, by the way) and a new AFL team might arise is where trademarks are classified for use.
The AFL will certainly want to print the club’s new nickname – whatever it is – all over merchandise. In Australia, this is a Class 25 trademark registration, which is also held by Warner Brothers for their cartoon character. That being said, the former Tasmanian Devils VFL team also held this class until it was withdrawn from competition by AFL Tasmania in 2008.
“I would be shocked if there couldn’t be an agreement [between Warner Bros. and the AFL],” Moshirnia says.
“There’s wiggle room, and there’s also the fact the parties can be like ‘You’re not going to have informal use of our logo [the Loony Tunes Devil] as your mascot.”
So the good news is that for people concerned that the most basic scientific elements of our lives are getting swept up by the corporate world, it’s not really possible to do so. Where conflict arises is where they could generate confusion between a brand and its competitor – maybe Warner Bros. can approach the Tassie team for a Space Jam spin off featuring its insatiable brown and white cartoon character.
But just in case the AFL tries to steer clear of any legal complications for their new team’s nickname, there are plenty of Tasmanian species that Cosmos thinks would make ferocious or unique candidates to represent Australia’s newest AFL club.
If Devils are off the table, perhaps their Dasyurid cousin, the quoll, is a good option, and an incredibly popular native animal. These feisty, spotty, predatorial marsupials are truly unique. The team would have the option to pick between the spotted-tailed quoll and the eastern quoll.
As quoll expert Dr David Hamilton told Cosmos last year, Tasmanians do enjoy the sight of a sprinting quoll (though not their penchant for finding their dinner in local backyards).
“The species has a bit of a “love ’em or hate ’em” profile within Tasmania,” Hamilton said.
“Some locals love nothing more than the sight of an eastern quoll bouncing around their backyard, but others are concerned that their chicken coop needs to resemble Fort Knox to keep these spotty critters out.”
Perhaps the new team will want to channel the elusive nature of the famous thylacine. Hunted to extinction in the early 20th century, it’s unlikely Richmond are going to be particularly happy with Tassie’s team adopting a Tasmanian Tigers moniker (and the Tassie Tasmanian Tigers just doesn’t work), so perhaps the more widely used thylacine name is a better bet. There are those who believe this large marsupial still roams the wilds, but most in the scientific community seem to think otherwise. Perhaps picking the name of an animal wiped out by colonists isn’t quite the vibe this new team is after – the team is likely to be playing before scientists resurrect the animal.
There are eight species of bat on Tasmania, and one – the Tasmanian long-eared bat – is endemic. The club’s new management might like the association with this rare microbat: it’s a high-flyer, just like the ‘speccies’ they’ll want their players to be taking, and hunts low to the land below, which is exactly what fans will hope to see from their men and women chasing the ground ball.
Speaking of balls, the scientific name for the Tassie long-eared bat is particularly appropriate to Australia’s game: Nyctophilus sherrini.
They’re green, so they’ll fit nicely with what many assume will be the new club’s main colour. There are three endemic frogs to Tasmania – the Tasmanian tree frog (Litoria burrowsae), Tasmanian froglet (Crinia tasmaniensis), and the Moss Froglet (Crinia nimbus), the latter of which was discovered in 1992.
Two for the price of one. While platypuses and echidnas can be found on mainland Australia, they both dwell on Tasmania and are popular sights across the island. Tasmania also has its own subspecies of endemic short-beaked echidna (Tachyglossus aculeatus setosus). Tassie fans would surely hope to see good defensive play from their new side, and their defence mechanisms – spines on the echidna and venomous spurs on the male platypus – really offer something unique.
Little penguins (Eudyptula minor) aren’t restricted only to the Apple Isle, but they’re so popular that they’ve even named a local town after them. Almost 200,000 breeding pairs have been estimated to occupy Tasmania – which is more than can be said for some of their mainland cousins. Unfortunately, this species’ blue and white colours are already borrowed by Geelong, Carlton and North Melbourne.
If you find a reptile in Tasmania, it will almost certainly be a skink. The Scincidae family of reptiles has nearly 20 species on the island, and nearly a dozen are endemic. These smooth and shiny lizards have the qualities a fan would want in a footballer: silky movers who can stick to things like glue – who doesn’t love a quality tagger?
Tassie Red-bellies (or the Tassie Pademelons)
The red-bellied pademelon (Thylogale billardierii) looks like a fun-sized kangaroo. These macropods are found only in Tasmania, where they dwell in forested areas. They’re also nocturnal: during the daytime, they take shelter amongst their thickly vegetated habitat and bounce out after dark to find food. Unless the new team gets exclusive rights to play under lights, the Tassie fans might not be too keen on that association.
The giant freshwater crayfish (Astacopsis gouldi) is the world’s largest freshwater invertebrate and a threatened species, so adopting this mascot could also help shine a light on an animal that needs more human help (and less human hunting). That being said, the fact crayfish don’t have backbones might not be well received by fans hoping their players have a bit of spine.
Tassie Trees or the Tassie Blue Gums
Puritans likely love the idea of animal mascots in the game of football, especially ones that are native to Australia. But Tasmania is just as famous for species from another biological kingdom. Trees are synonymous with the old-growth forests of the island’s west coast, which have drawn people to visit them long before the state’s first AFL team.
Carn the Trees!
Originally published by Cosmos as Can you trademark the Tasmanian Devil? Here’s 10 mascot ideas that are just as good for the Tassie AFL team
Matthew Ward Agius
Matthew Agius is a science writer for Cosmos Magazine.
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