Earlier this month the Indianapolis Colts became the third NFL franchise to face the wrath of Aggie lawyers over the use of “12th Man” marketing terminology. In years past, the school has pried licensing fees out of the Buffalo Bills and the Seattle Seahawks for the use of the term, which they trademarked in 1990. No money changed hands this time around. The Colts simply agreed to stop using the words “12th Man” for merchandising purposes.
Today, any football team, college or pro, that refers to its fans as the 12th Man for commercial purposes can expect to hear from an Aggie lawyer tout suite. And per the tenets of trademark law, the cold hard facts are clear: A&M owns the “12th Man” trademark, and if they don’t enforce that trademark, the term could become generic, like “escalator,” “kerosene,” and “Aspirin.”
But there’s another possible argument for NFL teams who find themselves in court with the Ags could use: By the time the Aggies trademarked the “12th Man”—a reference to the team’s passionate fans—the term was already generic.
Or at least that’s a possibility vehemently promoted by a college football enthusiast who goes by the pseudonym “Randolph Duke.” Ahab had his white whale, Don Quixote had his windmills, Inspector Javert had his Jean Valjean, and Randolph Duke has the Fightin’ Texas Aggies 12th Man Tradition. Duke has spent a great many hours over the past three years working to debunk key elements of the Aggie 12th Man origin story, and thereby destroy the trademark. He has become a legend of college football message boards in the process, a hero to some (but not all) on Longhorn boards, a villain in Aggieland, and a source of amusement to neutral observers.
Duke shares his extensive research with every defendant the Aggies have sued. But he was never more active than in the run-up to the Colts settlement. For months, he had been crafting posts of many thousands of words stating his case, the crux of which is this: he believes that one of the pleadings in the Aggie lawsuit against the Colts was nothing short of “fraudulent,” an example of “public corruption” perpetrated by state employees.
And it all stems from this, paragraph 7, which reads thus:
Since as early as 1922, Texas A&M has used the mark 12th Man (hereinafter, the “12th Man Mark”) in connection with sporting events and numerous products and services. The 12th Man Mark was initially adopted in 1922 as a remembrance of a student at Texas A&M, E. King Gill, and his spirit of readiness to serve Texas A&M’s football team in time of need. The legend of E. King Gill grew, and the 12th Man Mark now identifies and distinguishes Texas A&M in connection with all of its athletic entertainment services and events, education-related services, and a wide variety of merchandise products for which Texas A&M and its licensees use the 12th Man Mark.
Aggie Legend
To understand a key part of Randolph Duke’s argument, we need to dive into the origins of this treasured legend.
According to sacred Aggie text:
The tradition of the Twelfth Man was born on the second of January 1922, when an underdog Aggie team was playing Centre College, then the nation’s top ranked team. As the hard fought game wore on, and the Aggies dug deeply into their limited reserves, Coach Dana X. Bible remembered a squad man who was not in uniform. He had been up in the press box helping reporters identify players. His name was E. King Gill, and was a former football player who was only playing basketball. Gill was called from the stands, suited up, and stood ready throughout the rest of the game, which A&M finally won 22-14. When the game ended, E. King Gill was the only man left standing on the sidelines for the Aggies. Gill later said, “I wish I could say that I went in and ran for the winning touchdown, but I did not. I simply stood by in case my team needed me.”
This gesture was more than enough for the Aggie Team. Although Gill did not play in the game, he had accepted the call to help his team. He came to be thought of as the Twelfth Man because he stood ready for duty in the event that the eleven men on the gridiron needed assistance. That spirit of readiness for service, desire to support, and enthusiasm helped kindle a flame of devotion among the entire student body; a spirit that has grown vigorously throughout the years. The entire student body at A&M is the Twelfth Man, and they stand during the entire game to show their support. The 12th Man is always in the stands waiting to be called upon if they are needed.
Much of the story is true. The Aggies did beat the highly-ranked Praying Colonels of Centre College in Dallas 22-14. E. King Gill did get summoned from the stands by Coach Bible, and ultimately, his services were not needed. After that things get murky, according to Duke. Here is his extremely detailed account of the game, but to make his long story short, it seems that Gill was not the lone man on the sideline when the final whistle blew. By Duke’s reckoning, A&M still had twenty healthy players by the time Gill came down from the stands, not twelve. The team had run out of substitute running backs, as mentioned in the one and only account of the game that mentions Gill by name.
So Gill was not the 12th man, but more like the 20th. Even so, it makes for a pretty cool story. First off, it was a massive upset. Centre, led by former Aggie coach Charlie Moran, came into Dallas 10-0, having scored 298 points on the season while allowing only six. Nobody gave the Aggies much of a chance against the Praying Colonels, and they went out and took care of business, in spite of losing their entire starting backfield to injury.
Still, Gill’s role in this extraordinary story doesn’t seem all that different from, say, one of those slugfest football games where one team is down to its last quarterback. In such dire straits you often see a running back, wide receiver, tight end, or even a punter warming up on the sidelines should that last man go down. Not to mention that, as Gill noted in a 1964 speech, he had been with the football team through Thanksgiving, whereupon he left to concentrate on basketball. He was the starting fullback on the team the following season, and he scored one touchdown and set up the other in the Aggies’ shocking 14-7 victory over the Longhorns in Austin that year. Gill was an amazing all-around athlete who also pitched for the baseball team. The idea that he was just an average student is absurd and derogatory of Gill as an athlete.
Gill’s role in the game did not take on its mythic trappings until almost twenty years later in 1939, the Aggies’ lone national championship season. E.E. McQuillen, then head of the Aggies alumni association, dramatized the 1922 Dixie Classic for a locally popular radio drama, perhaps eliding the fact that Gill was not the Aggies’ only healthy substitute, but merely the only remaining backfield alternative. And why not? After all, it was a radio drama, not journalism. (No script or recording of McQuillen’s play survives, so nobody is certain how much the story was embellished, if at all, but at some point, people came to believe that Gill was the only man on the sideline.)
But the glossy finish to the story isn’t Duke’s only objection to paragraph 7. According to Duke’s research, by the time Gill made his way to the Aggie sideline on that fateful day, the term “12th Man” was already widely used to describe boisterous fans. In the years before 1939, the Aggies had plenty of company in “the home of the 12th Man” department.
Lexicographer Ben Zimmer pinpoints its earliest use in that sense, that of fans bringing an extra edge to a team’s performance, to 1900:
The mysterious influence of the twelfth man on the team, the rooter, should be as great as any of the rest.
—Minnesota Magazine, Sept. 1900
Duke and Zimmer both cite another early example from the alumni magazine of what is now the University of Iowa:
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 S.U.I. —The Iowa Alumnus, Nov. 1912
By the 1920s, the term had made its way to Texas, but not just in College Station, and certainly not in reference to Gill’s heroic volunteerism. Indeed, one of the first documented Texas uses of the term comes from The Battalion, the Texas A&M student newspaper, in 1921—several months before Gill suited up for the Dixie Classic:
With absolutely no intention of subtracting one ounce of glory from Bible and his eleven disciples, we believe some mention must be made here of the old yelling army — the physological [sic] factor — the twelfth man. Many times the question is asked, ‘How do they do it?’ It is because sixteen hundred Farmer boys love and idolize their team with sacred devotion…
“Famous” the Aggie 12th Man might have been, but it was not the only one in the state. In 1924, The Brand, the newspaper of Simmons University in Abilene, reported “This expression the twelfth man, which is becoming common in colleges throughout the state as designating the support of the student body, is a strong man at Simmons and most remains so throughout the year.”
So Simmons College had a twelfth man. So did Tarleton State. And Baylor. And, believe it or not, even UT had its own 12th man according to a Dallas Morning News article from 1938: In the run-up to the 1938 UT/A&M game, a picture was captioned “these two win when their twelfth men help the most.”
As Duke loves to point out, and as no Aggie partisan has been able to refute, exactly none of these widespread pre-1939 usages of the 12th Man term mentions Gill, by name nor oblique reference to the Dixie Classic, or Texas A&M, save as an opponent. There is no mention of Gill’s role in the creation of a unique Aggie 12th Man tradition between 1922 and the airing of that radio play in 1939, one that Gill himself, in a 1964 speech, credited with birthing the 12th Man tradition.
The Making Of The 12th Man
When the radio play hit in 1939, Hitler had just invaded Poland and the Japanese were rampaging through the Far East. Though it would be a full two years before America would go to war, tales like Gill’s heroic march into the breech (embellished with Alamo-esque last man trappings), hyper-patriotic militaristic organizations like the Corps were very much in vogue, and the lines between football and warfare were blurred. Indeed, in an April 1943 speech given at A&M’s San Jacinto Muster, an army major (and Aggie alum) claimed that the modern-day equivalent of the Aggie 12th Man was “the civilian backing up the armed forces.”
Over the next 75 years, the term fell out of use everywhere but College Station, where the Aggies worked diligently and to make it uniquely their own. My own theory is that A&M won out over all the others thanks to the fact their original 12th Man was branded by default. Unlike the rooters in Stephenville, Abilene, Austin, and Waco, the Aggie 12th Man all wore khaki. Remember, this was a time before themed sports apparel had hit the market, so nobody was rocking Nike green-and-gold Baylor gear. On the other hand, the Aggie 12th men all looked the same, in their brown riding boots, crew-cuts and beige uniforms.
As the usage faded in other camps, the Aggies, in their vintage cavalry uniforms, went from a twelfth man to the twelfth man. By 1953, the lore had fully taken root in College Station. An establishment called the 12th Man Inn was seeking applicants for kitchen help in the Bryan Eagle’s classified section, and cadets affiliated with the Army and the Air Force at A&M met in a postseason scrimmage called the 12th Man Bowl, which ended in a scoreless tie. Upon the 1954 hiring of Bear Bryant, “the Texas A&M 12th Man Cadet Corps” was cited as a factor in his decision to leave Kentucky.
In 1954 there came the Cotton Bowl’s famous 12th Man tackle, which saw Alabama’s Tommy Lewis come off the bench to bring down streaking Rice star Dicky Maegle 38 yards from pay dirt. That shocking, nationally famous incident reinforced the idea of the 12th Man as an illegal participant rather than a cheering section.
By 1955, a Corpus Christi sportswriter referred to his paper’s decision to include 12 men on a high school All District team as “Aggie-like.” By 1957 Aggie Baptists had an organization called the 12th Man for Christ. The following year, the tradition was invoked in an attempt to stave off the advent of coeducation. As an anonymous Cadet put it in a Bryan Eagle letter to the editor, six years before A&M admitted its first young woman:
“We have something here not to be found at any other school coed or not. That is the world famous Aggie spirit and the 12th Man. We don’t need co-education now or in the near future to improve on that or any other of the created problems now facing the world’s largest military school.”
It seems that by then Texas A&M had acquired common law ownership of the phrase, “squatter’s rights,” at least within Texas. Still, at that time, recitations of Gill’s heroic volunteerism were seldom printed. Those would begin to appear in 1956, when Houston Press reporter Vernon Smylie “rediscovered” the original 12th Man, who by then was a Corpus Christi ear, nose, and throat specialist. That story has a couple of glaring errors: it repeats “the only man on the bench” legend, and also claims erroneously that in 1922 Gill led the Aggies to their only victory over the Longhorns in Austin in the history of the rivalry. (The Aggies had beaten the Horns at home before that.)
There were two more signal moments in the development of the tradition. The first came in 1964, when Gill came back to College Station for the San Jacinto Day Muster and gave a speech reminiscing about the Dixie Classic, in which he credited the 1939 play for birthing the tradition. According to later trademark filings, the Aggies started handing out 12th Man scholarships the following year. In the 1980s, coach Jackie Sherrill kicked things up a notch by introducing a 12th Man kick-off team exclusively composed of walk-ons who came to be known as “the Suicide Squad.” The term was emblazoned on the arms of their jerseys, and at around the same time, Aggie fans began waving 12th Man towels in the stands.
By that time, merchandising/ sports apparel was emerging into the billion-dollar industry it is now, and the Aggies had a rival 12th Man in the form of the then-fledgling Seattle Seahawks. In December 1984, the Seahawks retired the jersey number twelve in honor of their famously loud fans, and five years later, the Aggies started filing a series of trademarks on various goods and services bearing those words, claiming exclusive rights over their use on everything from glassware and towels to scholarship services and sports events.
Trademarking Tradition
So are those trademarks strong and valid, or are the built on a spider web of fork-tongued myth and outright lies, as Duke contends? It should be noted that the Aggies seem pretty firm in their ownership of the 12th Man trademark. Shane Hinckley, a spokesperson for the university, offered this statement (emphasis is Hinckley’s): “Texas A&M University Holds three incontestable federal registrations for the 12th Man trademark and another registration for the Home of the 12th Man trademark. The federal government has long recognized our rights in this matter and we have no reason to be concerned otherwise.”
But let’s take a crash course on trademark law.
In the interest of objectivity, I went out of state to consult an expert: Jeffery Karmilovich, an intellectual property attorney in Greenville, South Carolina, and an experienced lawyer whose allegiance is to Clemson, from which graduated and later represented in trademark litigation.
I sent Karmilovich portions of Duke’s manifesto, and discussed at length his obsession with paragraph 7.
“There’s not much juicy here,” Karmilovich tells me. He said that the first Aggie trademark application “sailed right through” the approval process with no opposition. “The trademark examiner did not give them any rejections or objections for being prescriptive or generic or anything like that,” he says. “It was simply allowed.”
Four years later, the Aggies filed for trademarks on a greater array of 12th Man goods and services, and that was the first one that claimed the 1922 date of origin, and extended the trademark to covering “entertainment services” (read: football games). That one hit a tiny snag.
“That one got a rejection of some sort from the examiner, and they did a response and it was allowed again,” he says. “It’s too old for it to be online for me to see with the rejection was based on. I don’t know if it really was a serious objection. It could have just been about descriptiveness, or the date, or maybe it was something totally innocuous about the font of the 12th Man.”
Karmilovich also explains that one of Duke’s contentions, that Aggies paid teams and fans to drop litigation, isn’t as suspect as it sounds.
“That’s pretty common,” he says. “It’s the nuisance value thing. You can spin that entirely one direction, and make it look crooked, or make it look like really good business just depending on how you want to discuss it.” He also details the arduous discovery process, and why it would make sense the Aggies would want to shut it down for convenience’s sake, not because they thought their case was shaky.
“And you could lose your trademark,” he continues. Juries are unpredictable. And then there would come a round of appeals, costing hundreds of thousands more, where they could conceivably lose again. “So from a nuisance value, to settle for $25,000, Instead of spending a million dollars on a lawsuit they might lose? If they lose it then they are in horrible shape.”
But what of Duke’s explosive claims about paragraph 7?
“Defrauding the Trademark Office is a very big deal, but it would be very hard to say that somebody intentionally knew that they were making a misstatement and lying to the Trademark Office,” Karmilovch says. “It may not have functioned as a mark initially, like it was just a nickname at first. I would certainly jump on that if I were on the other side and say that statement was incorrect.”
So, no fraud. It doesn’t matter if Gill was the only sub or not, or when the tradition was born. The Aggies own the marks, and that’s that. (Three other IP attorneys I spoke to echoed Karmilovich’s views.) Duke, on the other hand, remains unconvinced. The recent Colts settlement was a sore disappointment to him. He had been in contact with the team’s lawyers, sending them reams of his research and hoping they would go to the mat with the Aggies.
He was so close. The Colts seemed to indicate that they thought they could have prevailed in court, but weren’t prepared to fight that battle to the death. “In the end we 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,” Colts Chief Operating Officer Pete Ward told the Indianapolis Star. “It wasn’t worth a battle with the university. We will still recognize our crowd in the Ring of Honor in a manner to be announced in the near future.”
Duke seems prepared to continue his lonely jihad nonetheless.
Duke has serious research skills, and is nothing if not persistent. But why is he so fixated on this issue? Couldn’t all that talent and drive be harnessed to a worthier cause? Why this crusade?
“I’m not on a crusade, but I am appalled that the school, which touts its honor code often and with pride, appears to be perpetrating a fraud,” he writes. “Lore is fine. The fictionalized version of their tradition is fine for students and alumni to rally around, but when they use it in federal filings to obtain a trademark and then represent the fictionalized version of the story as factual in federal court filings to obtain financial settlements from private parties, I think people should be appalled.”
Whether or not you are likely depends on your alma mater.
