Dear Barstool Sports: No You Cannot Sue The NFL For Its Non-Infringing Merchandise. Also, Relax.

from the falling-off-the-stool dept

It has certainly been a turbulent year for the NFL. The league is reeling from ratings declines, accusations of political bias, its own versions of the #MeToo wave that has collided with our larger culture, and a seemingly never ending controversy over how players comport themselves during the National Anthem that essentially works as a feedback loop of outrage on every side helped along by the man holding the highest public office in our union. With that in mind, relatively small intellectual property dust-ups may seem low on the eyeball list for those following the league, but it's still worth pointing out when the league gets IP questions wrong, as it often does.

Yet not every accusation lobbed in its direction is valid and the rather over the top response from one online outlet over the branding of some t-shirts is one that is not. The background on this is that Barstool Sports is a part humor, part satire, part sports blog with a turbulent relationship with Roger Goodell and the NFL. The Boston iteration of the site has been a particularly virulent thorn in the NFL's side and made much of its name when the league suspended Tom Brady for deflating some footballs. The site also pitches a line of t-shirts with the phrase "Saturdays are for the boys" on them, which I suppose is some kind of a nod to college football. Well, the NFL recently came out with a line of "Sundays are for the [blank]" line of shirts, with the blank being each of the 32 NFL teams that famously play games on Sundays. This did not escape Barstool Sports' attention.

But this I cannot stand for. I’m not letting this rat fuck Roger Goodell pull one over on me. I’m not letting him stand at the podium at the Super Bowl, say he’s never heard of Barstool Sports, then start slinging SAFTB gear in the NFL.com store. That’s fucking bullshit and I wouldn’t be a man if I let it slide. I don’t know what I’m gonna do because I’m not entirely sure that this is actionable, as we don’t own every day of the week, but I’ve never let the rules stop me from making a scene before, Roger. I’ll get Charlie Kelly to draw up a C&D in crayon and I’ll go sit my ass in the lobby at Park Ave, a place where I’m banned from enter, again. I’ll have Michael Portnoy Esq bury you up to your eyeballs in paperwork. I’ll start selling so many goddamn NFL copyright infringing t-shirts it’ll make your head spin.

First and foremost: bros, take a breath. Whatever the relationship between Barstool Sports and the NFL, these t-shirts are not some threat to the site's merchandise income. As for the intellectual property question here, there really isn't one. A phrase of this nature, this size, and this level of creative originality isn't going to be the cornerstone of the copyright lawsuit of the century, and that's without taking into account the NFL's large cadre of lawyers. On the trademark front, the phrases are both non-unique enough and sufficiently different so as to wave off any concerns about public confusion. There's just nothing here.

But if the threat of selling copyright infringing merch on Barstool's end isn't some joke, or perhaps even if it is, such statements serve as great evidence for any willfull infringement claims the NFL might want to make against the site in the future. Some of the media coverage has included questioning what the upside for the NFL is in using such a similar phrase, which is fairly silly. The upside is selling the shirts. The real question is: what is the downside? The answer is pretty clearly: there is none.


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  • icon
    Anonymous Anonymous Coward (profile), 27 Dec 2017 @ 7:18pm

    What is the downside, revisited

    The downside is that the public will comprehend that collegiate and professional sports are money, time, and attention draining singularities that offer not much, if anything back. They used to, but $$$$ got in the way.

    Personally I no longer give either of them any attention, which is the unintended consequence of their spectacular exhibition of greed, and is now spreading more and more rapidly. This, over time, will be the induction of their own demise. Self fulfilling prophesy self fulfilled. Earn it, deserve it, let it come quickly so that resources may be devoted to something actually worthwhile.

    Another downside is that when the current major benefactors of this dastardly scheme realize their own coming demise, they will work to benefit via legal channels of the bankruptcy courts who will pass debts unto others and relieve the 'aggrieved owners' (in bankruptcy, debts may be forgiven to the debtor but the entity providing the asset is still at a loss, or maybe a percentage of their whole is lost).

    Certainly a sad case when the 'owners' have nothing of value to own, yet they paid hundreds of millions of dollars to own nothing of any value, or that had value until it didn't, and the creditors are made to pay for the 'owners' failure to see that reduction in value coming.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2017 @ 8:56pm

    Saturdays are for the boys has nothing to do with college football and the entire sue the NFL thing for this is entertainment. They probably will take legal action, but the purpose of the legal action is to entertain the fans and annoy Roger Goodell.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2017 @ 11:45pm

    bluster and fake outrage

    In the Age of Trump when just about everyone is constantly crying "wolf" to get attention, it seems the only way to make yourself stand out in such a dysfunctional environment is by screaming even louder and shriller and more insanely.

    Even Trump critics seem to have fallen into this endless spiral, with perhaps one of the worst examples being the almost-NFL player LaVar Ball, whose ridiculous interview on CNN devolved into some kind of parody of the classic Abbott and Costello's "Who's on First?".

    Will people ever realize that these comically absurd loudmouths are just trolling for attention, and should be ignored?

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Kim lori, 28 Dec 2017 @ 1:53am

    Have a question

    Hello techdirt,

    This article is very much helpful. But still I have question on it should I ask here ?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Dec 2017 @ 5:15am

    I hope Barstool Sports wins, just to give the NFL one last "FUCK YOU" for good effort. The NFL deserves to be slapped in the face every time they are seen in public.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Dec 2017 @ 12:05pm

    Saturdays are for the Boys has absolutely nothing to do with College Football. At least get your facts straight before writing a nonsensical hit piece.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Dec 2017 @ 2:27pm

    BarBrawl Sportz

    Well, this certainly livened things up, especially after that brief stint on ESPN2 which made Samantha ponder. Of course, their interaction with Northeastern University was a knockout.

    reply to this | link to this | view in chronology ]

  • identicon
    Fernando, 30 Jan 2018 @ 7:59pm

    Don't you look like an idiot now

    Do you realize how much of an idiot you look like after barstool won this lawsuit. They are the only media outlet who is still worth anything and is appealing to real sports fans. O and did you see those "bros" get a $100 million valuation? Sorry that barstool is saving sports you idiots need to deal with it.

    reply to this | link to this | view in chronology ]


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