NFL Gets Shopify To Take Down Clear NY Jets Parody Merch Site With Trademark Complaint
from the sell-the-league dept
All regular readers here will need is to see a headline that includes both the word "trademark" and the NFL to get their eyes rolling. The NFL is notorious in its jealous protection of its intellectual property. In fact, the league goes much further than your everyday trademark bully, chiefly by pretending it has trademark rights that it absolutely does not have. This usually rears its head in the run up to the Super Bowl.
But the other game of pretend the NFL likes to play is one in which it pretends to not know that Fair Use exists. That can be seen most recently in the league going after a seller or parody NY Jets gear on his Shopify site, getting the whole store taken down by asserting trademark infringement.
One of the NFL’s latest victims is Zach Berger, a New Yorker who sells merchandise for frustrated New York Jets fans through a website called Same Old Jets Store. Most of Berger’s products feature a parody version of the Jets’ logo, modified to say “SAME OLD JETS”—a phrase that’s been used for decades to criticize the team’s performance and express fans’ sense of inevitable disappointment. His other products include “MAKE THE JETS GREAT AGAIN” hats and clothing that says “SELL THE TEAM” in a font similar to one used on Jets merchandise.
The NFL got in touch with Shopify and claimed that every single product on the site violated its trademark rights. The notice that was sent was essentially boilerplate material, asserting claims that the league and teams own all rights to all trademarks for those teams. In addition, the league claimed that the general public would be confused into thinking that the NFL or the Jets were the ones that were selling this gear.
Think about that for a moment. The NFL asserted that a store selling merchandise that makes fun of one of its teams would be confused with officially licensed gear. As the EFF link notes, one of the phrases on this merchandise is "SELL THE TEAM." And the NFL says the public is going to think that's an officially licensed product. These items are clear parody and fall under the realm of Fair Use.
But there's a reason that trademark bullying works and it's because platforms like Shopify always, always, always err on the side of the rightsholder.
Disappointingly, Shopify responded to the infringement complaint by taking down Berger’s listings, without questioning the NFL’s absurd claims or giving Berger a chance to respond. Even worse, when Berger contacted Shopify and explained why the NFL’s complaint was baseless, Shopify simply stated that it had forwarded Berger’s message to the NFL and would not restore the listings “until this matter is resolved between the parties.” More than a week later, the NFL has yet to respond—which isn’t surprising, since Shopify already did exactly what the NFL wanted.
And so Berger's legit store remains down, all because the NFL would rather play pretend and be a trademark bully than withstand the slightest bit of criticism.
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Filed Under: football, parody, sports, trademark, zach berger
Companies: nfl, ny jets, shopify
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'I have millions to burn. You don't. Guess who wins?'
But the other game of pretend the NFL likes to play is one in which it pretends to not know that Fair Use exists.
Unfortunately what's actually in the law matters a lot less than what you can convince someone is in there and/or whether you've got more money to spend on legal fees, and if you've got absolutely piles of money that you're willing to spend to get your way like the NFL then you can basically pretend the law is whatever you say it is and get your way more often than not, as this story makes all too clear.
If there's one silver lining it's that future sellers now know to stay far, far away from Shopify, as they have shown that not only do they fold under the most minimal pressure but when called on it take the coward's path and try to dodge responsibility.
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Until the NFL runs up against someone who has the resources to fight back, I see no reason to expect that their present unappetizing strategy will not continue.
Some day, when they annoy someone with resources, they might wind up facing a dec action and maybe even a request to cancel or limit classes for some trademark.
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If you're accused of kidnapping, rape, or murder, you're innocent until proven guilty, because it's important to observe due process and protect the rights of the potentially-innocent.
If you're accused of trademark infringement, you're guilty and screw any due process rights, because apparently it's more important to protect the rights of the IP holders than to actually see justice done.
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Priorities
Anyone remember the case of the guy who put together a Jewish hit list? What he actually got locked up for was selling counterfeit ML sports gear.
<blockquote>According to the U.S. Attorney’s Office, FBI agents initially targeted Schmidt because they suspected him of selling counterfeit goods that included Nike, Reebok, Louis Vuitton, NFL football jerseys and other fake sporting goods through his business, Spindletop Sports Zone. However, the counterfeit goods probe also became a terrorism investigation when agents uncovered the arsenal and suspected hit list during the raid.
Schmidt is currently in federal custody. Andrew Hart, Schmidt’s federal public defender has refused to comment about the case.
According to the indictment unsealed last week in the U.S. Court of the Northern District of Ohio, Schmidt has been charged with three counts of illegal possession of firearms, ammunition and body armor and one count of trafficking in counterfeit goods.</blockquote>
https://www.splcenter.org/hatewatch/2013/12/20/ohio-neo-nazis-sentence-wea pons-charges-draws-criticism
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From now on i'm just going to to pronounce NFL as N-Fail. Probably written (n)Fail.
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Could a claim of tortious interference me made in these instances where a company makes dubious or false IP claims to a platform in order to silence or shut down someone?
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Re:
Just what I was thinking. I also recall that there's case law that simply ignoring fair use in a copyright/trademark claim can demonstrate the claim wasn't made in good faith and can lead to sanctions/award of attorney's fees.
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Re:
Possibly, but what are you going to do? Sue the NFL? They have effectively infinite money to pay lawyers that can drag the process out until you, the poor shmuck who cannot afford to litigate indefinitely, go broke. The fact that you COULD recover legal fees at some purely hypothetical point in the future when you win the case is a cold comfort if you can't possibly pay a lawyer for long enough to get there.
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Re:
One of those things is civil the other criminal.
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Re: Re:
When you get criminal-level penalties, based on dubious standards of evidence because it only requires "civil" proof, i.e. whatever the IP plaintiffs say, the distinction is meaningless. It means the enforcers of IP law can't be fucked to prove they've actually got a case.
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