NFL Tells ICE That Parody Shirts Are Counterfeits

from the beck-and-call dept

For years now, we've pointed out that ICE -- Immigration and Customs Enforcement -- has this weird habit of acting as the private police force of various big sporting leagues, almost always timed to big sporting events. Every year, right before the Super Bowl, for example, ICE seizes a bunch of websites. And ICE also goes way overboard in seizing physical merchandise, even if that's at least slightly closer to its mission. But it's been painfully obvious that ICE more or less sees itself as an arm of these sports leagues, rather than employees of the US government, and thus, the public. Last year, I filed some FOIA requests about ICE seizures leading up to the Super Bowl, but had them rejected on the basis that it was an ongoing investigation.

However, law professor Rebecca Tushnet is much more persistent than I am, and has been pursuing documents related to ICE seizures in the courts, and has had the court force ICE to hand over details -- including the not-at-all surprising, but still horrifying discovery that the NFL gives ICE guidance on what to seize, and it includes obvious parodies which are clearly not infringing, as they're protected by fair use. This is from the manual that the NFL provided ICE:

And, sure, perhaps it's true that NFL licensed merchandise won't favor one club over or another or make derogatory use of another's marks... but it's easy to argue that this is parody and thus not infringing. Just because it's not licensed, doesn't automatically make it infringing. But the NFL doesn't care. And I guess that's not surprising that the NFL doesn't care -- but it's astounding that ICE just agrees to follow the NFL's marching orders. Because unlike the NFL, ICE should actually follow what the law says, and not what a very wealthy sports league wants to happen.

As Tushnet points out in response to this:

So, what do we know? (1) Despite ICE's initial claims to me via its spokesperson and a lawyer, ICE relies only on industry guides to identify counterfeits, not on any independent sources. (2) Those industry guides identify what they don't like, not what is within the scope of counterfeit goods. (3) Most of what ICE seizes is truly counterfeit, but when it seizes parody merchandise, it implicates First Amendment interests in free speech.

Considering that this is ICE, who has a history of seizing blogs based on big industry claims, it seems quite clear that ICE couldn't care much less about the First Amendment interests of the public. Just the profits of big industry.

Filed Under: counterfeit, football, ice, trademark
Companies: nfl

HowStuffWorks Attempts To Explain Why Advertisers Use Super Bowl Euphemisms, But I Have A Simpler Explanation

from the the-big-lame dept

It's common knowledge at this point why advertisers start to go wonky after the new year. We've long talked about how all kinds of groups and companies suddenly begin playing the euphemism game when it comes to the Super Bowl, America's annual celebration of brain trauma. Everyone, from comedians to beer makers to tech companies, goes to great lengths to wink at everyone as they all refer to the Super Bowl by any name other than its own. Why? Well, because the NFL has a trademark on the term, which allows it to restrict the user of the phrase only to its sponsorship partners... except that that's not remotely true and isn't how trademark law works at all. Instead, the only real prohibition is on the implication that a company is an official sponsor of the NFL when it isn't. Beyond that, simply calling the game what it's called isn't trademark infringement.

But this is confusing enough that this year the website HowStuffWorks has done an entire piece to explain to an almost certainly confused public why companies are pretending that nobody knows what they're talking about when they say "the big game" instead of "the Super Bowl." It's a post that deserves a rebuttal, which I will helpfully provide.

The Super Bowl is a registered trademark of the NFL. And the football league also owns the copyright to the telecast of the game. That's why advertisers use unregistered phrases like "the Big Game" or "the football championship" when hawking a furniture sale or happy hour, for instance. The NFL allows the Super Bowl sponsors and the network airing the game that year to use the phrase, but they pay heavily for it.

Not true. Those advertisers pay to be official sponsors, not to simply use the phrase. Anyone can use the phrase Super Bowl as a means for accurately describing the name of the game about which they are talking. They just can't claim to be sponsors, nor imply a relationship with the NFL. If Best Buy advertises a big screen television as the "preferred TV on which to watch the Super Bowl," that's a no-no. But if it says it is running a sale on big screen TVs and to get yours before Super Bowl Sunday, that ain't trademark infringement.

So, the explanation for why advertisers don't say "Super Bowl" in that manner isn't because the NFL has the intellectual property rights to it, it's because the NFL is a duplicitous money-monster that has perpetrated a farce in pretending trademark law is something that it isn't.

"The NFL wants to make sure they keep their sponsorships the way they want to control who has use of the phrase," says Anderson. "That way people can know what's directly connected to the NFL and their product." Trademark infringement occurs when someone uses a trademarked term (like "Super Bowl") in a way that may cause a person to wrongly infer an official connection between the company the trademark belongs to and the product advertised.

The NFL absolutely wants that, and it regularly bullies anyone who uses the phrase in a nominative manner in any kind of advertising or social media. But the "how" part of HowThatWorks isn't answered by trademark law. It's a combination of the aforementioned misleading of the public along with the NFL's regular practice of being a protectionist idiot.

Because the NFL should want the term said as often as possible by as many people, and companies, as possible:

It’s unnecessarily stupid for the NFL, which should want “Super Bowl” said as often as possible, because until 100% of TVs new and old are tuned to the Big Game, the league has not accomplished its goal of complete domination of American consciousness. Best Buy wants to have a Super Bowl sale? Great! That’s a free ad for the NFL, which should thank a non-sponsor for promoting their product.

This is not, however, how the NFL thinks. This is the same league that banned its own teams from posting GIFs of game highlights, ostensibly to protect its TV partners, as if any GIF-worthy play isn’t being turned into a GIF by a thousand different people and going viral anyway. Shouldn’t the league want its teams to reap the benefits of all those clicks, which convert to social media followers, which convert to deeper embedding of the product, through official channels, in the minds of consumers?

Nah, the league would much rather play language cop in a silly game it has made out of trying to alter trademark law simply by out-jackass-ing the Olympics. And, hey, it's worked! By simply pretending trademark law is something that it isn't, the NFL has managed to get the world's advertisers to play pretend along with the league. And what a victory it is, what with every advertiser using barely-disguised euphemisms for the game that we all know they're talking about. Victory!

So, how does this work? Not in the way HowStuffWorks describes. The NFL acts as a protectionist lie-geyser bully through a legal team on more figurative steroids than the league's field-hands. That's how it works.

Filed Under: super bowl, superbowl, the big game, trademark control
Companies: nfl

Nine Years Later, Patriots Get '19-0' And 'Perfect Season' Trademarks, Despite Doing Neither

from the i'm-sure-those-will-sell-well dept

Nine years ago we had a post about some of the ridiculousness surrounding trademarks and the Super Bowl (a popular topic this time of year). In particular, we mocked the fact that the New England Patriots had filed for some trademarks in the week before the Super Bowl. Then, as now, the Patriots made it to the Super Bowl, but that year they had done it with a perfect record, winning all 16 games in the regular season and the first two playoff games to go 18-0. They were heavily favored to win the Super Bowl, and had filed for trademarks on both "Perfect Season" and "19-0." Of course, the NY Giants came away with quite the upset and sent the Patriots home as losers. Given that, we were kind of surprised a few months later to discover that the Patriots were still seeking the trademark on "19-0," despite the fact that its actual record for the season was a demoralizing 18-1.

I pretty much stopped following it after that and assumed that the Patriots probably gave up as well. But, no. ESPN now tells us that nine years later, the US Patent and Trademark Office has approved the trademarks. No. Really:

Though it has been nine years since the Patriots nearly achieved an undefeated season, the team just now has gotten around to trademarking "Perfect Season" and "19-0."

The Patriots have gone through the process with the U.S. Patent and Trademark Office and, in December, trademarked the two slogans through their parent company, The Kraft Group, online records show.

Of course, you might wonder how the hell the Patriots can claim "use in commerce" for these, since the team didn't have a perfect season and didn't go 19-0.

The one complication with those two filings is that, while thousands of T-shirts were printed commemorating a perfect Patriots season, none of them were ever sold. Emblazoned with an event that didn't occur, they instead were shipped to other countries.

The rationale for getting "Perfect Season" is even more bizarre. The Patriots claimed they "licensed" the phrase to apply to a high school championship.

Having to prove that they deserved the right to the phrase, the Patriots apparently licensed "Perfect Season" to the Massachusetts Interscholastic Athletic Association, which produced a DVD of the 2015 state football championship game between Xaverian Brothers and Central Catholic high schools. Xaverian prevailed, winning its 24th straight game (spanning two seasons).

Voila. Use in commerce?

Of course, it still makes you wonder why the hell the Patriots still wanted to trademark 19-0. It's not like they really have much use for it at this point. If they eventually do have a 19-0 season... well, then it's still a dumb idea. And are the Patriots now going to seek to block any other NFL team from trying to sell T-shirts if they were to have a 19-0 season? Or are they assuming that only the Patriots could possibly ever achieve such feats?

Either way, when we first reported on the 19-0 trademark application, we noted that the NY Post had gotten snarky and filed a trademark application for 18-1. That application was eventually abandoned... as were five other similar attempts to trademark 18-1.

Except for one. As you might notice, that top one was granted. A guy named Raymond William Mort got the trademark for "World Chumps 18-1" back in 2012 (he applied right after the Super Bowl in 2008). Congrats Mr. Mort.

I'm not sure if he's actually selling T-shirts or anything, but he did create this lovely graphic:

I'm sure it's selling like gangbusters.

Filed Under: 18-1, 19-0, football, patriots, perfect season, trademark, uspto
Companies: new england patriots, nfl

Baltimore Ravens Owner Has Ingenious Solution For NFL Ratings Drop: Stop Annoying Fans With Too Many Ads

from the evolve-or-pay-the-price dept

For a long time, the narrative du jour in cable and broadcast circles was that sports would save cable TV from the unholy threat of cord cutting and the associated ratings drop. Live sports and sports analysis was, the argument usually went, the one true piece of bedrock in the cable and broadcast empire that could protect the industry from sagging ratings and defecting customers. But as we've see by the NFL's 2016 ratings dip and ESPN's stumbling face-plant, sports simply isn't the panacea industry executives pretended it was. Of course, the industry likes to attack any messenger that points this out, but it doesn't make the underlying reality any less true.

With sports ratings in decline, the obvious question then becomes what to do about it. Most of the proposals being circulated by the industry have been relatively comical, like the NFL's decision earlier this year to simply shuffle the Titanic deck chairs a little and consider the subject closed:

"According to people familiar with the plan, the one-week test will reduce the number of commercial breaks from the standard five per quarter to four, while retaining the usual spot load. In other words, while football fans will have fewer opportunities to make kitchen runs and bathroom breaks, the ad pods that do air will eat up more clock."

So the industry's ingenious solution to complaints that there are too many ads? Keep the same overall ad load, but just shuffle the delivery up a little bit. That's kind of on par with the ingenious solutions the cable and broadcast industry has been using for years. When they're not responding to consumer annoyance by just increasing ad load, they've focused on editing or speeding up shows to fit in more ads. Obviously none of this is going to address the fact that streaming video has changed the entire game, and traditional television has to adapt or perish, even if this means initially losing revenue.

Baltimore Ravens owner Steve Bisciotti this week had a novel idea; how about the NFL stop shoving so many ads down the gullets of already frustrated users, most of whom pay an arm and a leg for cable?

"It doesn’t take a genius to figure out that nobody wants to see two minutes of commercials, come back, kick the ball and then go to a minute-and-a-half of commercials,” Bisciotti said Tuesday. “I’ve thought that was absurd since I was 20 years old."

You mean, fining teams for sharing video clips isn't going to fix things? Bisciotti goes on to note that yes, this will certainly result in a drop in initial revenue, but hey -- it won't hurt billionaire owners any, really:

“We’ve got to figure that out,” Bisciotti said. “Again, if you change that, it could mean a reduction in income, but that’s going to hit the players more significantly than it’s going to hit the owners. I still don’t know any owner that’s in this business because of the money.

“Everything is on the table, and if we have to go to ABC and NBC and say that we’ve got to cut some commercials out and give some money back and half of that money doesn’t go into the player pool, maybe that’s what we’re going to have to do. But our expenses would be adjusted accordingly too. So, I’d like to see some things cleaned up.”

What a novel idea. Actually changing your behavior instead of crucifying anybody that suggests you should adapt? Examining aggressive and creative solutions to the ongoing ratings and cord cutting slide, instead of burying your head deeply in the sand? Traditional cable providers and broadcasters are going to lose money in the face of increased competition and more consumer choice. The question then becomes, do these companies want to have at least some kind of direct control over this trajectory and evolution of their industry, or are they just going to do nothing, and stand there with dumb looks on their faces as customers flock to less expensive, more flexible, and ultimately less annoying entertainment alternatives?

Filed Under: ads, football, ratings, steve bisciotti, tv
Companies: nfl

NFL Teams Enjoy Giving NFL's Social Media Policy A Giant, Hilarious Middle Finger, Using Toys

from the sorry-not-sorry dept

You'll recall that we recently commented on the NFL's new dumb social media policy for its member teams, which outlines how much video content a team can push out as kickoff approaches (less than before), what type of video content from games teams can produce and distribute on their own (basically none), and the size of the fines if teams violate this policy (huuuuuge). The NFL has insisted elsewhere that this one-size-fits-all marketing approach has zilch to do with its precipitous ratings decline, although few believe it on this point. And, even as news of the policy has been released, the NFL itself has been inclined to push out as much of this very same content itself, centralizing its social media media control.

So, if you're an NFL team that doesn't like the new policy and wants to make its fans aware of how silly it is in the most hilarious way possible, what do you do? Well, if you're the Cleveland Browns and the Philadelphia Eagles, you push out Twitter updates to your followers that depict game highlights using plastic figurines. Here is how the Browns alerted their fans that their team had scored a touchdown.

And here is how the Eagles notified their Twitter followers of an in-game interception.

One wonders exactly how quickly the NFL's policy will be updated to include fines for snarkily shitting on that same policy. I imagine it will come quickly, because the NFL has not shown a propensity for having a sense of humor. Meanwhile, this should highlight exactly why the policy is so silly. Here we have creative, snarky, funny social media folks at these NFL teams whose talents are being wasted due to a top-down marketing approach from a league office that is overseeing the first ratings decline for the NFL in decades.

How in the world does that make any sense?

Filed Under: football, snark, social media
Companies: cleveland browns, nfl, philadelphia eagles

A Weekend Full Of The NFL Violating Its Own Social Media Video Content Rules

from the hike! dept

We had just discussed the NFL's strange edict to its member teams to significantly scale back the amount of video content they were sharing from NFL games, particularly during lead-ups to kickoff. As the news came out alongside some fairly significant reports of ratings drops for the NFL, many, including this writer, assumed that the NFL thought that such video content was a factor in the viewership decline. The NFL, meanwhile, denied this, instead claiming that the ratings drops had more to do with the election season, noting how many people were busily watching Presidential debates, with many of us watching whatever car-wreck zombie-apocalypse our political discourse has devolved into.

Whether that's true or not, it certainly seems as though the NFL itself does not think of video content and social media as some kind of enemy to ratings after all. Over this past weekend, immediately after its edict to its teams went out, the NFL was pushing even more video content out via social media than it had in the past.

If the league is panicking about the distribution of highlights on social media cutting into ratings, though, no one told their social-media managers, because pretty much every major play in an NFL game yesterday was posted almost immediately to the league’s Twitter account, often with preroll ads attached.

Ok, so what do we make of this? Well, as with many things to do with the NFL, the takeaways are both good and bad. The good is that the NFL clearly understands that video content blackouts are a thing of the past and that such content is a great driver for ratings, and not the opposite. But the bad is that the NFL seems to think that a top-down approach to controlling such content is the best approach to targeting viewers.

And that's just dumb. Not only dumb, in fact, but demonstrably silly. As I mentioned in the original post, the markets that host NFL teams are wildly diverse, from major markets like New York and Chicago -- and now Los Angeles --, to relatively tiny markets like Green Bay and Charlotte. A one-size-fits-all marketing approach never made sense for NFL teams, but before the days of digital media there wasn't a great deal in terms of diversity that could be achieved. But in the social media age? Marketing can be targeted and approached in a way tailored to specific fan-bases and markets. Why in the world would the NFL think that it had a better handle than each individual team, all of which employ their own social media managers, as to how to best drive viewership and attendance?

Filed Under: football, social media
Companies: nfl

To Combat Dropping Ratings, The NFL Thinks Fining Its Teams For Sharing Video On Social Media Is The Answer

from the no-it-isn't dept

It's been a time of remarkable progress of late when it comes to professional sports organizations being smart about how to pursue viewers in this here digital era. Major athletic institutions are finally opening up the door to wider streaming options, putting aside the doomsayers. Add to that that other leagues are starting to realize what a boon Major League Baseball's Advanced Media product has been to viewership and attendance and it seemed like we were on the precipice of a golden age in digital sports media.

Leave it to the NFL to ensure that we take at least one step backwards. What once seemed like a never ending funnel of money and upward trending viewership, the NFL has undergone something of a ratings correction as of late. It seems that amidst the controversy over head injury, bad officiating, the contraction of one-day fantasy football, and what some think is a generally declining quality of the on-field product, less people are watching games, both in person and on television. This had to happen at some point, if for no other reason than because NFL ratings over the past 2 decades were completely boffo. But the NFL's choice to combat this inevitable decline takes a page from the days we finally just got over.

We’ve obtained a memo that went out to all 32 teams reflecting that, starting Oct. 12, clubs are subject to a new fine schedule for exceeding the limits on video and any moving content. Those are particularly strict during the 60 minutes leading up to games, and through games, with clubs largely limited to re-posting from the NFL’s own accounts (with some allowance for approved content on Snapchat). The memo says that first-time offenders will be fined up to $25,000, a second offense will warrant a fine of up to $50,000, and a third offense will merit a fine of up to $100,000 and loss of rights to post league-controlled content.

This is flat out dumb for a number of reasons. To start, a top-down control over how teams choose to market their product breeds rigidity. Rules applied both to a market like New York and Green Bay are going to be flawed almost by definition, as those markets are completely different and the tactics needed to attract fans simply aren't the same.

But the larger idea of blacking out or setting limits on social media video content as a way to increase viewership is both a misunderstanding of how such content is viewed and shared, as well as a misunderstanding as to its wider effects on audience numbers. Simply nobody is watching highlights of video on an NFL team's social media account in lieu of watching the game live. That isn't the point of those highlights. Rather, the point is to attract, through the sharing of the video, new viewers who perhaps weren't initially interested in watching the game.

It's what makes MLBAM so powerful. I'm not perusing Twitter to get my live game action, but I sure as hell will switch over to a game in progress, or one upcoming, should some video content give me a compelling reason, whether it's a pitcher throwing a no-hitter, a batter one hit away from the cycle, or some on-field altercation that ratchets up the intensity level. I'm a baseball fan; I live for that stuff. And having a team try to lure me to their broadcast, which I can likewise access via the excellent MLB.tv service, is a brilliant piece of marketing.

Marketing that the NFL, normally smart in its business practices, has decided to forego. Television blackouts of old have become social media blackouts today, and for no good reason.

Filed Under: nfl, restrictions, sharing, social media
Companies: nfl

NFL Cuts Out Shout-Out To St. Louis In HoF Speech YouTube Upload, Streisand Effect Takes Over

from the rammed-home dept

The NFL is almost a perfect study in how the combination of an attempt at strict control of its content and a complete lack of understanding of the Streisand Effect will produce the opposite of the intended result. Past versions of this have included the NFL's insane claim of copyright on the only footage that exists of the original Super Bowl, meaning nobody actually gets to see the footage, as well as the league's attempt to bury an ESPN documentary about head trauma as it relates to football. In both cases, the NFL comes out looking petty at best, and much worse in the case of trying to hide the negative health effects of the game from the parents of children who might otherwise play it.

But even that kind of evil and petty takes a back seat to the NFL deciding to cut out a portion of Orlando Pace's Hall of Fame induction speech in which he gives a shout-out to the city of St. Louis, former host of the Rams.

St. Louis football fans who hoped to see a shout-out from the Rams’ newest Hall-of-Famer Orlando Pace might have been disappointed if they watched the version of his speech uploaded to the NFL’s YouTube channel. While the other inductees’ speeches from last night’s event are presented unedited by the NFL—including Brett Favre’s 37-minute misunderstanding of “go long”—Pace’s speech is cut off before he gets to the portion where he tells St. Louis fans that “nothing can ever take [our championship] away from you.”

The Rams, of course, just recently bailed on St. Louis for Los Angeles, to the tune of much strife and controversy. And as much as I love digging at St. Louis sports fans, the NFL's attempt to control its brand message by removing a short, innocuous tip of the cap to a city that a Hall of Fame player called home for so long is almost hilarious in its petty cruelty.

And, as per usual, it didn't really work anyway. That Streisand Effect will get you every time. When people noticed that the NFL's official upload had the shout-out to St. Louis edited out, that editing was reported on, and the portion of the speech that had been omitted suddenly became share-worthy. Nice try, guys.

Filed Under: orlando pace, rams, streisand effect
Companies: nfl

DailyDirt: Jocks Versus Nerds

from the urls-we-dig-up dept

The rise of fantasy sports and realistic video games for every major sport has expanded the audience and engagement incredibly. Even if you can't throw a spiral, you can still manage a fantasy football team. Sabermetrics changed baseball, and deep learning algorithms are about to change how a lot of other sports are played. Computers aren't just going to beat people at chess and Go. They might become better talent scouts and strategists for every major sport.

• IBM's cognitive computing platform Watson is becoming a talent scout for the Toronto Raptors, analyzing unstructured data to find undervalued free agents and trade targets. If this kind of artificial intelligence for NBA moneyball works, it'll probably expand to other professional league sports as well. And someone out there is probably going to make a killing with fantasy sports, too. [url]
• Embedded sensors in tennis rackets, golf clubs, helmets, etc... are going to provide a flood of sports data that will change the way these games are coached and played. These sensors will allow players to improve their skills and point out their flaws -- and possibly help avoid injuries. And in football helmets, we may even be able to better quantify brain damage from head impacts. [url]
• How will football strategies evolve over the next 50 years? Every play is caught on digital video and shared now, and playbooks are tablets. Simulations can help plan the best plays, and the difference between a video game and the real game could get a bit blurry for spectators. [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: ai, algorithms, analytics, artificial intelligence, basketball, cognitive computing, data, football, moneyball, sabermetrics, simulations, sports, toronto raptors, watson
Companies: ibm, nba, nfl

NFL Edging Towards Claiming A Trademark On 'The Big Game' Again

from the yup,-again dept

We all know that the NFL doesn't want anyone to use the term "Super Bowl" without having paid the NFL first (and paid lots and lots of money). As we've pointed out in the past, most of this is pure bullshit. In most cases, people and companies totally can use the term "Super Bowl" but few people want to deal with any sort of legal fight, so they just don't.

What's even crazier though is how the NFL has tried to crack down on euphemisms as well. The most popular term that companies use instead of the Super Bowl is "The Big Game." And going back to 2007, we noted that the NFL wanted to trademark that too, even though it's not the one who came up with the term, nor does it really use it. A bunch of companies opposed the NFL's attempt, but over at the Pirated Thoughts blog, Michael Lee notes that the NFL is doing a few things that suggest it may want to trademark "The Big Game" again. At the very least, it's trying to block anyone else from trademarking it:

In late 2014, an individual in California filed a trademark registration for the BIG GAME DAME mark to cover athletic gear such as shirts, pants and jackets. The applicant claims that the mark is already in use and filed the “in use” specimen that can be seen below. The specimen is nothing more than a ratty plain white t-shirt that someone stuck a homemade label on from their old Brother P-Touch. Alright, this all seems a bit shady but we will put the skepticism to the side.

More germane than the earnestness of this trademark application, in December 2015 the mark was published for opposition. On January 26th, the NFL requested and was granted an extension of time to oppose issuance of the trademark. This is the usual first step that allows the parties time to try to work out a settlement, allows the opposer additional time to draft the opposition or even allows the opposer time to reevaluate its position and not even file an opposition in the first place.

This potential opposition is not an isolated incident. On the same day, the NFL was also granted an extension of time to oppose an entirely different mark by another clothing company, BIG GAME DAY ARE YOU READY! A month earlier, the NFL also requested an extension of time to oppose this same clothing company’s BIG GAME mark. Three potential trademark oppositions over the use of BIG GAME in a month’s time, where there is smoke there could be some fire.

In other words, the NFL is at least suggesting that it may have a right to "The Big Game" as well. It's not clear if the NFL thinks there will be less opposition this time, or that people won't notice. Or maybe it just doesn't care (which seems to be the standard operating procedure of the NFL these days). But, once again, such a move would be crazy. And, of course, it wouldn't even be necessary if the NFL hadn't been such a trademark extremist in the first place.

Filed Under: big game, super bowl, the big game, the super bowl, trademark
Companies: nfl