“See that ship over there? They’re rebroadcasting Major League Baseball with implied oral consent, not express written consent…or so the legend goes.” Its not every day that you get to include a classic line from The Simpsons in an article but it is quite germane today. Last week, MLB filed to register trademarks for a long time legal instruction to viewers concerning the rebroadcast of MLB copyrighted content, EXPRESS WRITTEN CONSENT. But, can this simple legal disclaimer be registered as a trademark?

Still, on most broadcasts of MLB games, your hear an announcer spit out the following phrase (or something close to it): “Any rebroadcast, retransmission, or account of this game, without the express written consent of Major League Baseball, is prohibited.” This doesn’t mean that you need express written consent to talk about last night’s game at work with a fantasy baseball buddy but it reminds users that the transmission of the game is protected under copyright. MLB has used the phrase for a long, long time.

Last week, MLB filed three trademark registration applications for the term EXPRESS WRITTEN CONSENT. So could this simple legal disclaimer be protected as a trademark allowing MLB to assert rights against anyone who uses the term? Not likely but what can be protected is the use of the term in association with a service or product. Here, MLB filed the trademark registrations in classes covering entertainment and production services, video broadcasting and downloading video. As the specimen to establish use, MLB provided a screenshot of its video segments on the MLB website called “Express Written Consent”. So MLB is looking to protect the mark in association with its online video series.

Even common words or phrases can be granted trademark rights when they become so associated with product, service or person. For example, the disclaimer HANDLE WITH CARE is a registered trademark of real estate company that provides services to stop or assist with the foreclosure process. The disclaimer ALL HANDS ON DECK is a registered trademark of a retail and online store that sells barbecue grills, outdoor cooking supplies and related items. So disclaimers can be protected as trademarks and I suspect MLB will be able to hit a home run with the trademark examiner in its request to register the mark.

