Annual Reminder: You Can Probably Just Call The Super Bowl The Super Bowl

from the touchdown dept

It's that special time of year again where we here at Techdirt need to remind you that, no, the NFL cannot keep you from referring to The Super Bowl as The Super Bowl, full stop. While the NFL stomps around the entire country every year, slapping down bars and churches for hosting Super Bowl parties, all while an extremely unhelpful media plays along, the truth is that most of the bullying the NFL does isn't over actual trademark infringement. Sure, if some business advertises some association or endorsement by the NFL, that would be trademark infringement. Or if they claimed endorsement of the game or the NFL, that too would be infringing use. But a church simply hosting a Super Bowl party is not trademark infringement.

And, of course, the silliest output of this confusion is people and companies using half-baked euphemisms to refer to the Super Bowl instead. Everyone knows what they're talking about and, yet, this somehow isn't infringing. So, were there any confusion, it would still exist, and yet the NFL relents. The most common of these has been "The Big Game", of course, and its use continues to this day.

Restaurants have taken to calling it the Big Game because the NFL trademarked the name "Super Bowl" and jealously defends its use. But whatever you call it, Dallas restaurants are offering a superabundance of specials and takeout options for Sunday's game. We'll just call them Super Bowl specials because we can.

And so can everyone else. Really. Go ahead. This "the Big Game" nonsense is modernity's "fire in a crowded theater." But, because trademark bullying works, and everyone is so terrified of the NFL, instead you get this...

Not to be tripped up by trademark hassles, GAPCo got creative in naming their game-day deal. The Superb Owl Sampler includes 12 garlic knots, 12 toasted ravioli (six cheese, six beef), 12 pizza poppers with large ranch and sauces for dipping. The sampler ($55) feeds up to 10 people.

How the hell do you even parody something like that?

But if you really want to get yourself irritated, actual United States government agencies are getting in on this euphemistic bullshit. And the US Consumer Product Safety Commission actually made this all sillier with its own messaging on Twitter.

Why in the name of Tom Brady's sweaty jock strap would you put out a tweet that names the Super Bowl and then put out an image that uses a euphemism for it? And, related: "the Large Football Game"? I'm frankly tempted to see that graphic as an attempt to poke fun at the NFL for its protectionist nonsense, but somehow I don't think the USPSC has that much of a sense of humor.

Stop. STOP. Stop giving the NFL a power it doesn't actually have. Stop acting like the league can somehow gatekeep reality. It can't. Just call the Super Bowl by its damned name. It's not Voldemort, after all.

Filed Under: large football game, super bowl, superb owl, the big game, trademark
Companies: nfl

It's That Time Of Year: No, The NFL Can't Stop Every Business From Using 'Super Bowl' In Every Instance

from the the-big-game dept

It's an annual tradition here at Techdirt, something like our deranged version of Christmas. Whenever the start of February rolls around, we gleefully point out to all that will listen that the NFL's stance on how strictly it can control its trademarked term, "Super Bowl", is largely fantasy. Through a combination of overly aggressive enforcement against smaller entities, constantly repeating it has rights it actually doesn't, and a largely unhelpful mass media that simply takes these claims as gospel, far too many people and companies think they can simply not state the factual claim that the Super Bowl exists and occurs around this time of year.

And so we find ourselves with everything from commercials, product sales, and local events that reference "The Big Game", when the reality is that the only game being played here is with the public. That game is make believe, where companies use euphemisms that the public clearly understands to reference the Super Bowl, and the NFL pretends this is somehow different than using the factual term itself. And, again, major media outlets play along for some unknown reason.

As the Super Bowl approaches, many brands have been mentioning “the big game,” describing things as “super” and emphasizing their connection to the general sport of football in their advertising, but they can’t mention the Super Bowl without paying the NFL, which owns the trademark on “Super Bowl.”

“It’s something that they’ve built up equity in,” said Tony Ponturo, CEO of sports business consulting firm Ponturo Management Group and a former sports and entertainment marketing vice president for Anheuser-Busch. “They’ve invested millions and millions and, at this point, probably close to a billion dollars in the game, the event.”

None of which changes the fact that you cannot trademark factual information. Were a company to claim endorsement by the NFL, or claim some official sponsorship of the game, or perhaps even use the term in an extremely vague way, then the NFL probably has a trademark claim to make. But the league also happily goes after bars that advertise Super Bowl parties. They've gone after churches for doing likewise. And they go after any commercial interest that even mentions the existence of the Super Bowl.

That is not trademark infringement.

And, again, this is all ultimately stupid, given how easy it is to skirt trademark law anyway.

Of course, there are ways to get around the trademark. There are all those “big game” deals. When Ponturo was at Anheuser-Busch, the company hadn’t yet paid to make Bud Light the NFL’s official beer. So in the late 1980s, they came up with the “Bud Bowl,” a series of commercials featuring bottles of Budweiser facing bottles of Bud Light on the gridiron.

“The fan understood what it was,” he said. “We tied it ultimately into TV creative as well, which is how Anheuser-Busch first started to be the only beer in the telecast.”

Then what are we all doing here? If the NFL's interpretation of its trademark rights is overly broad, and if companies use other names to get around those same claims so often that the public knows exactly what is going on, then what is the point of any of this? Yes, the NFL has a valid Super Bowl trademark and, yes, it can certainly enforce the rights such a trademark affords it. But pretending there is no nuance to those rights doesn't change the fact that the nuance exists and far too many companies are happy to bow at the altar of the NFL, or simply play word-games to keep it at bay.

One of these years I won't have to write this annual post. 2020, it seems, is not that year.

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

Another Pre-Super Bowl 'Sex Trafficking Sting' Busts A Bunch Of People Trying To Buy Sex From Cops Pretending To Be Teens

from the sex-trafficking-still-a-relatively-safe-profession dept

Every Super Bowl is greeted with the same breathless stories about sex trafficking. As thousands of visitors descend on the unlucky host of The Big Game™, local law enforcement agencies -- sometimes accompanied by the DHS -- are there to claim there will be a sex trafficking victim for every Super Bowl attendee. Hundreds of law enforcement officers perform sweeps costing taxpayers millions of dollars. And every year, it's the same story: very little sex trafficking found, but a whole lot of sex buyers and sex workers are cited and/or jailed.

Prostitution may be the oldest profession, but it couldn't have been far ahead of "law enforcement spokesperson." Someone is always on the scene to spout meaningless numbers to press stenographers in order to perpetuate the myth that large gatherings = sex trafficking en masse. Few journalists dig into these claims.

Elizabeth Nolan Brown of Reason does perform the due diligence local journalists won't. Following the 2017 Super Bowl, Brown obtained booking sheets to see if law enforcement had snagged dozens of sex traffickers in the 750+ arrests made pre-Super Bowl.

Super Bowl 2017 was held in Houston, which sits in Harris County, Texas. Each day, the county posts its previous 24-hours worth of arrests on the Harris County Sherrif's Office (HCSO) website. The arrest report for February 6, 2017, contains more than 11 pages of arrests, including 12 for prostitution, a lot of DUI and driving-on-a-suspended-license charges, some marijuana possession, several assaults, theft, forgery, driving without a seatbelt, one "parent contributing to truancy," and a few for racing on the highway. The February 7 HSCO arrest log shows three arrests for prostitution. But neither reveals a single arrest for sex trafficking, soliciting a minor, pimping, promoting prostitution, compelling prostitution, or any other charges that might suggest forced or voluntary sex trade.

Maggie McNeill, an actual sex worker, has also debunked victorious pre-Super Bowl claims delivered by police hype men. According to law enforcement, more than "42" victims of sex trafficking were "contacted" during prostitution sweeps prior to the 2016 Super Bowl. But there's not 42 of anything in this mess:

42 potential human trafficking victims were contacted during the three weeks leading up to the big game…More than half of the victims were put in direct contact with an advocate or support group and…the task force arrested or cited 30…alleged clients of possible prostitutes…one “girl” was arrested for prostitution and resisting arrest…another “girl” was cited for prostitution…four people were cited for aiding in prostitution, two were cited for loitering with intent for prostitution, one potential victim disclosed other sex crimes and kidnapping, and two human trafficking cases involved a 15-year-old and a 17-year-old from Sacramento which resulted in a human trafficking arrest…one arrest for violation of a domestic violence restraining order and three arrests for other warrants…

As McNeill points out, the 15-year-old was a runaway with mental health issues -- a far cry from the panicked claims sex traffickers are lurking everywhere to poach teens off the street. As for the 17-year-old, she was apparently being "trafficked" by a slightly-older friend, who was also arrested.

As even McNeill notes, sex trafficking does happen. It just happens far less frequently than government officials claim, even as they use it to justify sweeps that do nothing more than temporarily inconvenience a few johns or, worse, punch holes in legal protections for third-party service providers. None of what's detailed above justifies all of the following, as summarized by McNeill and her inimitable prose:

Vast amounts of hype, blanketing an entire metropolis with pigs, spooks and g-men, millions wasted, thousands of words of anti-whore propaganda bloviated out, and for what? 21 women were given a phone number, 30 guys were tricked by cops with fake ads, two adult and two underage sex workers were arrested, six other people were arrested on bullshit charges, and four people arrested on warrants. The other 21 women were essentially just made up; “potential trafficking victims”? Really? Yeah, well every sex worker in the Bay Area is a potential police brutality and police rape victim, but I don’t see them counting that statistic.

Last year's Super Bowl featured the same stories. Law enforcement officials claimed they had busted 94 men in a "sex trafficking sting." In reality, all they'd done is arrest 94 men for trying to solicit sex from law enforcement officers pretending to be underage girls. Again, a couple dozen "potential victims" were "contacted" and referred to outreach groups, but nowhere in the arrest records will you find an actual sex trafficker, despite 57 officers putting in "20 hour days" for 11 straight days prior to the Super Bowl.

This year's stories have arrived and the numbers delivered by law enforcement again suggest two possibilities: either sex trafficking isn't nearly as prevalent as they believe it is, or the business model has some serious flaws.

Days before the New England Patriots and Los Angeles Rams are set to face off in Atlanta, 33 people were busted for sex trafficking in the lead-up to the big game, federal law enforcement officials announced Wednesday.

In a press conference outlining Super Bowl LIII safety measures, Department of Homeland Security Secretary Kirstjen Nielsen announced the arrests, adding four victims have been rescued.

33 traffickers and only four victims. Sure, the ratio's never going to be one-to-one, but you'd think it would be a lot closer than that. It's unlikely any trafficker is trafficking only one victim. In order for it to be the multi-billion dollar industry alarmists claim it is, traffickers most likely have at least a few victims each just to ensure profitability. Even if these traffickers are cut-and-run experts, you'd think the ratio would be more like three-to-one at worst, rather than ten-to-one.

The narrative about mass sex trafficking -- probably involving large numbers of underage victims -- is already falling apart. The DHS is being willfully vague about the arrests, but statements from local law enforcement agencies point to a bunch of cops sitting at desks pretending to be teenagers. And there appears to be a lack of underage victims, which kind of undercuts the usefulness of playing internet dress-up with pervs around the country.

On Jan. 23 and 24, Homeland Security assisted in a joint operation in Douglas County using undercover officers, social media sites and local hotel rooms, the Douglasville Police Department said Wednesday. Sixteen people were arrested, according to police, and the youngest person involved was 17. The timing of the crackdown was related to the Super Bowl, police said.

I not so boldly predict this narrative will collapse on itself just like it has following every other Super Bowl. The Big Game may draw big numbers. But it's not a sex trafficking mecca, nor is it an almost invisible symptom of a supposedly-billion dollar problem.

Filed Under: dhs, exaggeration, ice, moral panic, overhype, sex trafficking, sex workers, super bowl

The Greatest Trick The NFL Ever Pulled Is Convincing The World It Holds Trademark Rights That Don't Exist

from the in-the-details dept

It's nearly my birthday again, which of course can mean only one thing: we have to write up a post trying to explain to people that the NFL is completely full of shit in what it thinks its trademark on "Super Bowl" allows it to restrict. This has been something of an annual series for us, since the NFL really enjoys pulling out legal threats to bully businesses and churches over using factual phrases that do not in any way represent actual trademark infringement. The NFL certainly can restrict who claims to endorse the Super Bowl, or who can vaguely indicate some affiliation with the NFL or an NFL team, but the league instead likes to pretend that nobody can factually state that there is a thing called a Super Bowl and that it occurs at this time of year.

The output of this game of make believe is the world being a dumber, more cynical place. Businesses everywhere use euphemisms for the Super Bowl, such as "the big game." Everyone knows what the euphemism means, yet the NFL usually lets this kind of thing slide. This myth about what is and is not infringement has in part been perpetuated by non-Techdirt media outlets that parrot the NFL's claims, or at least warn everyone that the NFL is litigious. Which... thanks.

Most recently, this type of parroting comes in the form of articles such as this one, unhelpfully titled "Fear The Shield." To be fair to that post, the whole thing is fairly full of comments from exasperated business owners being confused as to how the NFL can trademark facts when it cannot.

Eithnee Carline is the co-owner of DJ’s Wings in Falmouth and Hyannis. The Hyannis restaurant has been in business for 30 years, she said. She recalled back when some newspaper accounts referred to the establishment as “Super Bowl Headquarters.” Ms. Carline said she is aware that no such verbiage can be used in the business’s advertising for this weekend.

“We use ‘The Big Game.’ Can’t even use Patriots, our favorite football team! Isn’t it crazy?” she said.

The sandwich board in front of the American Legion Post on Shore Road in Gray Gables announces a “SUPERBOWL PARTY.” Similarly, the marquee in front of Dino’s Sports Bar on Route 151 in Mashpee invites people to come watch “PATS-RAMS” this Sunday. Asked about the NFL’s trademark protection of the team names, owner Constantinos (Dino) Mitrokostas said that is why he phrased it the way he did, not using the full name of the Patriots.

“That’s why it says Rams Pats, that answers it all!” he said.

Indeed, except that this is all stupid. Venue owners somehow think that a sandwich board telling patrons to watch the Super Bowl at their establishment is infringement, but it very, very much is not. Business owners think that advertisements that make mention of the Super Bowl's existence without implying endorsement are infringement, but that absolutely are not. And, yet, this has been the un-reality that the NFL has successfully willed into existence with its legal team, aided by paragraphs in media outlets such as this.

Sunday, February 3 is the Super Bowl. As every sports fan knows, the New England Patriots will take on the Los Angeles Rams in what has also come to be known as Super Sunday.

Fortunately, everything written above appears in a newspaper article, and not an advertisement for a business, such as a restaurant or a sports bar. Placing any one of those phrases—Super Bowl, Super Sunday, Patriots, Rams—in an ad of any kind could land the business owner in a heap of trouble with the National Football League. They are all NFL trademarks, and the league charges substantially for the right to use what has been registered for intellectual property protection.

That is the opening frame for the entire post at The Bourne Enterprise (um, the name, guys?), a local "paper" in Massachusetts. And it's at best incomplete and at worst horribly misleading. Using those phrases in an advertisement would not land real legal trouble except under certain circumstances and in certain contexts. In trademark law, the linchpin is public confusion over to the source or affiliation of a good or service or brand. Without that confusion, there's nothing to worry about, and there is nothing confusing about a bar saying that it would be an appropriate place to watch the Super Bowl.

But every year, this is how I spend the run up to my birthday. I'd like to think that this some day will not be the case, but it's more likely that I can expect to be writing this post when I'm old and gray.

Filed Under: big game, fair use, nominative fair use, super bowl, trademark
Companies: nfl

Come Witness The Commentators That Help The NFL Fool The Public About Its 'Super Bowl' Trademark Rights

from the shame-on-you dept

The Super Bowl is here and this Sunday many of us will bear witness to the spectacle that is million dollar advertising spots mashed together over four hours with a little bit of football thrown in for intermissions. As we've discussed before, this orgy of revenue for the NFL is, in some part, propagated by the NFL's never ending lies about just how much protection the trademark it holds on the term "Super Bowl" provides. While the league obviously does have some rights due to the trademark, it often enjoys playing make believe that its rights extend to essential control over the phrase on all mediums and by all persons for all commercial or private interests. This, of course, is not true, and yet a good percentage of the public believes these lies.

Why? The NFL, pantheon of sports power though it may be, is not so strong as to be able to single handedly confuse millions of people into thinking they can't talk about a real life event whenever they want. No, the NFL has been helped along in this by members of the media who repeat these lies, often in very subtle ways. Ron Coleman of the Likelihood Of Confusion site has a nice write up publicly shaming a number of these media members, including Lexology's Mitchell Stabbe.

At Lexology, Mitchell Stabbe writes a post about why the SUPER BOWL® is the specialest trademark ever, laying out a thorough analysis of “activities that create a significant risk of an objection by the NFL.” He soberly notes that while the NFL failed in its effort to register THE BIG GAME, “The NFL also has federal trademark protection for 'Super Sunday', 'Gameday', 'Back to Football', '1st and GOAL' and over a hundred other marks.”

Except that Stabbe's analysis of how to avoid the ire of the NFL includes such advice as suggesting that businesses not wish teams or players good luck, for newspapers not to have any special sections covering the Super Bowl be sponsored by any companies, and for restaurants and bars not to use the term in any watch parties they have for the game. In case it isn't clear, none of those are matters of actual trademark infringement necessarily. Stabbe doesn't bother to point out that there's no likelihood of confusion in the marketplace here, and that basic nominative fair use (i.e., naming the thing you're talking about) is not going to dilute a trademark either. These types of advice columns, seemingly from experts on the subject, undermine the public's awareness of its own rights when it comes to using language.

Another example has media members acting as though there is special space carved out just for them, or certain members of the public, to use the phrase "Super Bowl."

In a post at a website called “SB Nation” owned by Vox Media, Jeanna Thomas noted a year ago, quite correctly, that “The NFL keeps firm control over its trademark on the words ‘Super Bowl,’ and that control makes the league a whole lot of money.” Unfortunately, the next sentence starts, “The Super Bowl (we can say it, because here at SB Nation we write about sports,” which would be bad enough without being topped by the double-barreled whopper to the effect that “Private citizens are fine to use the phrase without consequence, as long as there’s no financial consideration involved.”

It should be clear that all of these "we're barely safe to use this term and avoid the NFL's team of lawyers if we follow these very strict rules" creates the impression that the majority of the rights to use the term belong to the NFL, with a tiny bit leftover for the public. This is not how trademark law works. Trademark rights are limited in scope and infringement is reserved for particular circumstances. Just because the NFL pretends otherwise does not make it so, except it can become effectively so with people who should know better repeating these lies.

So have fun watching the Super Bowl. I can say that because I'm a blogger, I submitted six forms of identification and a urine sample to Roger Goodell's office (unsolicited, by the way), and I have created a totem to pray to my lord and savior Tom Brady, made out of a combination of salami, sharp cheddar cheese wedges, and pickle slices. If I hadn't... well, let's just say I'm happy to still be alive.

Filed Under: exaggerations, nominative fair use, super bowl, trademark

The NFL Pretending Trademark Law Says Something It Doesn't Leads To Hilariously Amateurish Ads For 'The Big Game'

from the the-game-that-shan't-be-named dept

Every year, right about this time, this site is forced to remind everyone that the NFL is completely full of crap when it comes to how it enforces its supposed trademark rights for the Super Bowl. While the NFL does indeed have some rights to the phrase and to controlling how it's used, those rights generally amount to prohibiting companies from falsely implying sponsorship of the game or a relationship with the NFL in commercial speech. What the NFL pretends is the case, on the other hand, is that it can somehow prohibit any company from even mentioning the Super Bowl in any context, up to and including simple factual statements.

All of this leads to the absurdity of every company that has chosen not to sponsor the NFL diving into the euphamism business, gleefully referring to the Super Bowl by any other name. "The Big Game" is the most popular of these, although the NFL has actually gone so far as to look into trademarking that phrase as well. The end result is the Picasso-ing of reality in which companies make references which every member of the public gets but that fall short of calling the NFL's biggest show by its proper name, something you would think the NFL would want everyone everywhere talking about.

With the Super Bowl a week away, we're already seeing this practice ramp back up. In Philadelphia, the home city of one of the competing teams, some small local businesses are getting into the act in hilarious ways.

Bethlehem’s SteelStacks campus announced Thursday it’s hosting a ‘watch party’ for the Big Game, and used clip art in place of NFL logos. One ArtsQuest staff member also tweeted a tongue-in-cheek ‘FLY [REDACTED] FLY!’ with a graphic advertising the event, which references Birds (but not Philadelphia Eagles) and includes a small gold cup instead of the Lombardi Trophy.

Here is the tweet and image in question.

That is some glorious clip art right there. But just let it sink in how dumb this all is. Every viewer of that image is going to know that it's an advertisement for a watch party for the Super Bowl in which the Eagles are playing. Yet, because of the NFL's status as a fullblown bully-monster that's perfectly willing to throw gobs of expensive legal prowess over something as small as a watch party at a bar, out comes the clip art, the references to the "Big Game", and the Eagles suddenly become the "birds." And literally nothing is accomplished. The public will view this image with the exact same understanding as if it contained the phrase "Super Bowl", yet it somehow satisfies the NFL. That's just stupid.

The NFL gets a lot of value out of its corporate sponsorships, no doubt. There have been something like five billion dollars spent on ads throughout the history of the game. Why the league continues to pretend it has rights it doesn't have when companies accurately referring to the game's name are no threat at all is beyond me.

Filed Under: football, nfl, super bowl, the big game, trademark, trademark stupidity
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

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

Homeland Security Totally Misunderstands Trademark Law; Seizes Perfectly Legal Sporting Goods Anyway

from the because-fuck-you,-we've-got-guns dept

Homeland Security's Immigration & Customs Enforcement group (ICE) has a history of seizing stuff without understanding even the most basic concepts around intellectual property. After all, these are the same meatheads who seized some blogs for alleged copyright infringement, and then had to return some of them over a year later, after they realized it was a mistake. ICE also has a history of using big sporting events to kiss up to the multi-billion dollar sports organizations by shutting down small businesses, protecting Americans from unlicensed underwear. And, of course, what bigger sporting event is there than the Super Bowl. Every year they make a bunch of seizures related to the Superbowl, and this year was no different.

ICE agents gleefully were patrolling Phoenix looking for clothes to seize. But there was just one, rather large, problem with how they went about it. It appears that the people in charge of all this, didn't know the first thing about the "law" they were supposedly enforcing. Seizing counterfeits is about stopping trademark infringement. But not everything using a trademark is infringing. Trademark, after all, is a form of a consumer protection law, designed to protect people from buying one thing, believing it's another. If there's no likelihood of confusion, then ICE isn't supposed to be seizing it (and, yes, there is also dilution of trademark, but ICE isn't supposed to be seizing products that dilute someone's trademark -- just those that are "counterfeit"). But that's not, apparently, how ICE sees things:

The profane debasing of a mascot — and really anything that denigrates a team — is guaranteed to be contraband, said Daniel Modricker, a spokesman for US Immigration and Customs Enforcement. That “Yankees Suck” T-shirt you put on for special occasions? If it uses anything that looks like a team or league logo, it probably constitutes trademark infringement.

Almost all of that is wrong. Using someone else's trademark to comment on them is a perfectly legal use -- and not at all counterfeit. Pretending otherwise gets into some pretty sketchy First Amendment areas, as using a trademarked word, phrase or image to criticize someone is considered protected. But, not to ICE. As Rebecca Tushnet explains:

"Profane debasing"--and when did mascots become sacred?--is not confusing. I don't think ICE has authority to seize diluting merchandise, and anyway very few of these will be using the profaned mascots "as a mark," meaning the dilution exceptions for parody and criticism apply. This is a blatant misunderstanding of the law, being perpetuated by a federal official with only the small reassurance that federal agents won't come down and rip a previously purchased shirt off your back.

Of course, the small time vendor with a table on the street isn't likely to challenge the federal government for stealing his perfectly legal shirts that "debase" a mascot. So ICE's Daniel Modricker gets to spew his ignorant and wrong statements and get away with it. Because ICE is ICE, and this is generally how it goes about its business. It has the guns and it gets to decide the law, no matter what the Constitution has to say about it.

Filed Under: counterfeit, daniel modricker, dhs, first amendment, free speech, homeland security, ice, mascots, seizures, super bowl, trademark

The Trademark Lawyers For The Seattle Seahawks Have Apparently Lost Their Minds

from the trademark-the-planet dept

You may recall that there have been recent trademark issues over the term "12th Man", which Texas A&M insists is its alone to use, even as the Seattle Seahawks perhaps use it most famously in describing their rabid crowds and the deafening noise their home stadium produces. Well, on the eve of the Seahawks returning to the Super Bowl, the trademark lawyers for the team have decided to make a run at getting their own trademark on the number "12" ... and just about everything else they could think of as well.

Despite that long history of onomatopoeia in the sport, the Seahawks are now trying to trademark the word “boom” and use it for the team’s own purposes. The effort is part of a quiet legal strategy in which the team has filed some two dozen trademark applications since October 2013 for phrases such as “Go Hawks” and the number “12.”

Football and the word “boom” have been married for decades, long before someone nicknamed Seahawks defenders the “Legion of Boom.” Way back in the 1960s, Minnesota Vikings running back Bill Brown was known as “Boom-Boom” for his similarly punishing style. Ex-coach John Madden bellowed “boom” during play-by-play TV broadcasts so often that, by the 1990s, it became his personal catchword, used in commercials featuring the popular pitchman.

No matter, apparently, because the attorneys are here to make sure the long history of "boom" and "numbers" in football belong to them for commercial purposes. The idea that a word that describes a sound could be locked up by a team, not to mention a number that describes the fanbase as a part of the team, is absolutely ludicrous. But the flag bearing the number "12" has already been approved for trademark. We'll have to see about the "boom." As for "Go Hawks", good luck to the Seahawks because there are very interested parties lining up to object.

The Seahawks’ aggressive quest for new revenue has led both the NBA and NHL to try to slow one of the trademark applications. And while Seattle’s owners were once sued over the use of “12th Man,” the team is now trying to seize control of many other variations of the term.

You can bet the Atlanta Hawks in the NBA and the Chicago Blackhawks in the NHL will be throwing lawyers at the Seahawks' lame attempt to lock up language. Those two teams alone have an insane amount of merchandise in place bearing the "Go Hawks" language. So why haven't those teams ever tried to trademark the term? Well, because unlike the Seahawks, most professional sports teams are surprisingly lax when it comes to trademarking tangential language.

Scott Andresen, a sports entertainment attorney in Chicago, said the Seahawks’ pursuit of so many different trademarks contrasts with conduct by other teams, even those with a national brand such as the Dallas Cowboys.

“They’ve always been a little aggressive about securing intellectual property for themselves,” said Andresen, who has worked with other professional franchises. “They’ve really taken the position that the more intellectual property, the better.”

Just in the past few months, the Seahawks have petitioned the U.S. Patent and Trademark Office for a chance to oppose a film company’s application to trademark a geographical name featured in the blockbuster “Hunger Games” books and movies: “District 12.”...While the Seahawks’ team owners have submitted 24 trademark applications in the past 15 months, officials with the Green Bay Packers, last weekend’s opponent, have filed just 36 applications in the past 40 or so years, according to federal records.

So the Seahawks are especially insane when it comes to trying to trademark anything and everything. Perhaps they learned this deviant behavior at the hands of Texas A&M, and the cycle simply repeats itself with the victim becoming the perpetrator. Or maybe there's some kind of gas leak in the offices of the team's attorneys. Either way, it's probably time for a well-being check.

Filed Under: 12, 12th man, boom, go hawks, seahawks, super bowl, trademark
Companies: nfl, seahawks