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.


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  • icon
    aerinai (profile), 2 Feb 2018 @ 1:52pm

    Disjointed PSA

    Netflix's sitcom Disjointed has a commercial of ex-NFL players who are promoting the use of cannabis over pain killers for sports injuries. They 'had' to refer to the NFL as the 'North American, non-Canadian football league'...

    At the end of the day, it is easier just not to say it so you don't get sued. No matter how stupid the lawsuit, you still have to pay lawyers to defend against it. So the NFL gets its pound of flesh one way or another...

    'MERICA!

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

    • identicon
      Anonymous Coward, 2 Feb 2018 @ 4:18pm

      Re: Disjointed PSA

      So, in 'MERICA! you not only get millions to play sports that injure you and leave you in pain but then more to promote drugs? What a country!

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

      • identicon
        Anonymous Coward, 3 Feb 2018 @ 8:18am

        Re: Re: Disjointed PSA

        I see the promotion of drugs every day on the tv, many of them have funny sounding side effects while other side effects are down right scary. So why would anyone consider the use of pot when they have so many other choices that provide much more entertaining side effects?

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

  • identicon
    Anonymous Coward, 2 Feb 2018 @ 3:47pm

    And don't forget to head over to the Superbowl subreddit for some really superb owls.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 2 Feb 2018 @ 4:13pm

    The confusion is still yours, Geigner: "restaurants and bars" are not "the public"!

    If these "restaurants and bars" are businesses, then definitely have less "right" to use any trademarks for their own gain. Businesses are mere permitted fictions: they DO NOT HAVE PRIMARY RIGHTS. -- That is fact, as those you quote and I agree. Commercial fictions simply cannot be equal to "natural" persons.

    You don't bother with more than assertion, as usual, so CITATION NEEDED to convert me to your view.

    And I think business owners had better check with, you know, a lawyer, not an "IT" clown who knows little more than where to click in Microsoft products.


    It always odd that you don't mind the NFL having actual monopoly, only nitpick on how that billionaire's club abuses trademark.

    If could, I'd make the fictional "NFL" disappear instantly by removing its legislated monopoly, and your trademark quibbles would be over.


    [I don't get the entire last paragraph but guess that you think it's funny.]

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

    • identicon
      Anonymous Coward, 2 Feb 2018 @ 4:27pm

      Re: The confusion is still yours, Geigner: "restaurants and bars" are not "the public"!

      So, by your reasoning, supermarkets cannot use trademarked names in advertising what they have for sale.

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

    • icon
      Toom1275 (profile), 2 Feb 2018 @ 4:32pm

      Re: The confusion is still yours, Geigner: "restaurants and bars" are not "the public"!

      Common law recognizes nominative fair use of trademarks even for businesses.

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

    • identicon
      Anonymous Coward, 2 Feb 2018 @ 4:38pm

      Re: The confusion is still yours, Geigner: "restaurants and bars" are not "the public"!

      [I don't get the entire last paragraph but guess that you think it's funny.]

      That you don't get it is even funnier!

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

    • icon
      Roger Strong (profile), 2 Feb 2018 @ 4:45pm

      Re: The confusion is still yours, Geigner: "restaurants and bars" are not "the public"!

      Nominative fair use is allowed even if that nominative use is commercial.

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

    • icon
      Stephen T. Stone (profile), 2 Feb 2018 @ 5:24pm

      Re: The confusion is still yours, Geigner: "restaurants and bars" are not "the public"!

      I think business owners had better check with, you know, a lawyer, not an "IT" clown

      Hey, Pennywise is doing the best he can down there, cut him some slack.

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

    • identicon
      Anonymous Coward, 3 Feb 2018 @ 12:28am

      Re: The confusion is still yours, Geigner: "restaurants and bars" are not "the public"!

      "Restaurants and bars" are the public. Ask your fuckbuddies in the performance rights organizations demanding money for music being played to horses. Even free-to-air radio counts as a "public performance".

      You lose, blue boy.

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

    • identicon
      Christenson, 3 Feb 2018 @ 7:45am

      Re: The confusion is still yours, Geigner: "restaurants and bars" are not "the public"!

      Hate on people much?

      I don't think it's news to many that the NFL is also about destroying intellect, (as in concussions), not just intellectual property, and that the NCAA division I is effectively the NFL's serf-owning minor leagues, equally ill-behaved with respect to IP issues.

      Why don't you link us to some new developments in those departments, suitable for displaying on a 'news' site such as techdirt?

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

    • identicon
      Anonymous Coward, 3 Feb 2018 @ 9:19am

      Re: The confusion is still yours, Geigner: "restaurants and bars" are not "the public"!

      You're literally just wrong, as always.

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

  • icon
    Anonymous Anonymous Coward (profile), 2 Feb 2018 @ 4:37pm

    So, you CAN use Super Bowl

    The EFF has a piece about this subject, though it is not terribly deep.

    https://www.eff.org/deeplinks/2018/02/you-can-call-super-bowl-super-bowl

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

  • icon
    Roger Strong (profile), 2 Feb 2018 @ 4:39pm

    Wikipedia: Nominative fair use

    ...by which a person may use the trademark of another as a reference to describe the other product, or to compare it to their own.

    The nominative use test essentially states that one party may use or refer to the trademark of another if:

    1. The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute).

    2. The user only uses as much of the mark as is necessary for the identification (e.g. the words but not the font or symbol).

    3. The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial.

    Furthermore, if a use is found to be nominative, then by the definition of non-trademark uses, it can not dilute the trademark.

    There's more relevant information - including a couple commercial use examples - none of it supporting the NFL's claims.

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

  • identicon
    Anonymous Coward, 2 Feb 2018 @ 8:19pm

    The only thing the NFL is more zealous about than its IP overreach, is covering up the effects of repetitive head trauma and CTE.

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

  • identicon
    Anonymous Coward, 2 Feb 2018 @ 8:34pm

    Gotta love the big sports industry

    Man, you just gotta love the big sports industry. From replacing perfectly fine stadia that are in some cases not even two decades old (and almost always on the taxpayers dime), to rampant doping and steroids, outright suppression of concussion studies, and easily the most insane IP maximalism imaginable across the spectrum.

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

  • identicon
    Pixelation, 2 Feb 2018 @ 9:18pm

    Let's rename it.

    The Salad Bowl.

    A lot more nutritious.

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

  • identicon
    Anonymous Coward, 3 Feb 2018 @ 5:27am

    Well I went to the local 10 pin

    and had a super bowl. 7 strikes and no gutters. Not to mention the super bowl of nachos they sell. But it's nothing on the hyperbole of some people.

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

  • identicon
    Anonymous Coward, 3 Feb 2018 @ 6:07am

    Wouldn't it be wonderful if abuse of trademark was grounds for losing that trademark?

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

  • icon
    orbitalinsertion (profile), 3 Feb 2018 @ 9:03am

    Pff, give the NFL what it wants, and follow Stabbe's suggestions. See how much the NFL likes it.

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

  • identicon
    Jordan Chandler, 4 Feb 2018 @ 11:23am

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

  • identicon
    Anonymous Coward, 5 Feb 2018 @ 4:47am

    Im just not that into bowling.

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


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