This country has always had a certain reverence for Midwestern values and common sense. Well, common sense may or may not be prevailing in Kansas City, Missouri, as football fans root for their Chiefs as they try to win their third consecutive Super Bowl.

But there does seem to be an evolving commonsense approach over the term "three-peat." For those who have not wasted as much of their lives as I have following sports, three-peat is a term which has become popularized to refer to a team which wins three consecutive championships. The problem comes when you realize that Pat Riley, legendary basketball player, coach and executive, registered "Three-Peat" back in 1988 when he was coaching the NBA's Los Angeles Lakers, and they were approaching what he thought would be their third consecutive championship win. He registered the trademark "Three-Peat" for the usual paraphernalia like hats, T-shirts, etc. Now, this does not mean that Mr. Riley had to have coined the term three-peat himself. Because under trademark law, what is important is applying a term to your product or service. You don't have to have invented the term, you just have to be the first to claim to use it on certain things. No better example of that exists than the most simple of words, "Apple."

Kansas City television station KCTV is reporting that local merchandise sellers are gearing up with victory emblazoned paraphernalia in the hope that the coming Super Bowl will be the day they can mark as a three-peat. But what about Pat Riley and his registered "Three-Peat" marks? Companies hoping to cash in on a Chiefs victory are taking a refreshingly sensible attitude, at least among the micro-survey of merchandise sellers that the television station interviewed. And it was particularly interesting, because their discussion really dissected trademark trade law in a practical way, and how trademark law looks at issues like this. One seller said, "Thank you for telling me. I didn't know this."

Having grown up a Boston sports fan and having spent most of my career in New York, I can tell you that fans in those places would be unlikely to take a similar approach as the one which is being reported about fans in Kansas City. Here in the northeast, that same sentiment may have come out more like, "I don't give a [bleep] what he says. I'm using it." Meanwhile, a Kansas City fan said, "We'll have to get creative and come up with other names or words to talk about a repeat of a repeat."

Riley apparently wasn't even the first to try to claim trademark rights in three-peat, as he had purchased his rights from some other entity. The first-ever use of the word is credited to a high school student in Illinois in the late 1980s. Not surprisingly, there's a Wikipedia entry for "three-peat," which quotes the Oxford English Dictionary. If you go there, you can read their exhaustive list of sports teams around the world who have accomplished the feat. (Raise your hand if you knew that the Danes dominated in women's handball in the Summer Olympics between 1996 and 2004.)

Riley owns the marks through Riles & Company, Inc., which owns no fewer than five active trademark registrations for "Three-Peat" for mugs, collectors' items, bumper stickers, playing cards, sunglasses jewelry, hats, jackets, shirts, and even owns a new, pending trademark application for energy drinks. They previously had owned a half dozen other registered and pending trademark applications as well. Going all the way back to 2001, the Trademark Office swatted away a challenge to Riley's rights by a party which presumably wanted to use the term itself, and claiming that three-peat had become a generic term for any performance "of an action or feat three consecutive times," particularly as related to sporting events. The administrative law judges at Trademark Office's Trademark Trial and Appeal Board found Riles & Company's evidence sufficient to contradict that claim, and to uphold their claim of trademark rights.

If you're now thinking "that settles that" - you're not right. That does not need to be the last word for all time. Trademark rights live in a dynamic commercial environment, and what may have been true two decades ago may or may not still be the case. Perhaps resulting from their many more years of use since 2001, Riles & Company's trademark rights are stronger than ever. On the other hand, it is also possible that public use has become so common that no one really thinks of this term as a trademark in the context of athletic championships. Maybe three-peat has just become a common part of the language of sport, like "MVP" or "double play" or "slam dunk." People use all of those on a daily basis when they are talking about sports. Yet all of them are registered by companies for their exclusive use in different contexts, like "Slam Dunk," registered in the Trademark Office for everything from ice cream to beer to investment services, or "Double Play" for fishing, worms and barbecue grills. Then there is "MVP." Just as the Rose Bowl is the "granddaddy of all bowl games," then "MVP" may be the granddaddy of sports-inspired trademarks with hundreds of different companies, which collectively own almost 500 registrations.

Riley may or may not have been the first coach to try to do this, but others have followed suit over the years trying to claim rights in terms associated with their teams. As I described in one of my prior blogs, basketball coach John Calipari, for instance, registered "Refuse To Lose" for T-shirts in 1997, when he was the head basketball coach for the then-powerful University of Massachusetts Minutemen. (Of course, he's now the somewhat beleaguered head coach at the University of Arkansas.)

The question is whether "three-peat" has become a generic term in the country to define a back-to-back-to-back championships, and if so, does that mean that anyone can use the term? If you're using a trademark in what the law thinks is an ornamental fashion, or in a fair use fashion to communicate information, you can use it even if it's someone else's registered trademark. However, when someone has a brand of products and the brand is "Three-Peat," which you might picture shown on the label on the inside of a ball cap, then no one else can use that trademark for those products.

So, that's open to question.

But let's suppose that the Pat Riley trademarks are valid. What then? Then the argument that "Three-Peat" is the most desirable term for these merchandisers to use to sell the most products isn't a winning argument. When someone else claims rights to a mark, and they got there before your company, it's their property. As a competitor, it's your job to come up with a different name. You can try to get really clever and somehow get the same sound or same connotations in the same feel as the original trademark, and if you do it in the right way, it may not infringe the other company's trademark rights. Or you can go the safer way and put your own completely different name to send your own variation of the message.

The people interviewed by the television station are reported to have said things like, "It's going to force us to be a little more creative, kind of come up with a new way of saying 'three-peat' without actually saying it," according to the manager of a merchandising company called Dragon. The co-owner of a clothing company called Made Mobb claims that he was already "prepared for it" and says the business has something up its sleeve for the upcoming game. Rather than rail at Riley's land grab, the Made Mobb people are quoted as saying that Riley is "a smart man, you know it's the game we got to play, and he's playing the game." If everyone approached trademark issues this way, a lot of trademark lawyers like me would be out of business. Of course, if you're reading this from Houston or Baltimore or Buffalo or any of the NFC cities still in contention, you're probably thinking, "Yeah, don't worry about it, the Chiefs aren't gonna' win number three."