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


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  1. icon
    Anonymous Anonymous Coward (profile), 1 Feb 2019 @ 6:23pm

    You can beat the crime, but you cannot ignore the ride.

    The problem comes when the big bucks NFL takes the small time pub or restaurant owner to court. The costs (whether defending or settling) can be catastrophic, and business ending. That the NFL does not actually see it as advertising for their 'property' is not just amusing, but it is antediluvian to their cause. Don't they get revenue from venues that show the game? I mean, the bar/restaurant pays a service (cable, satellite, other) for the right to view the game, from which the NFL benefits. They may not get money per patron, but that was never the deal. 40 people over to my house to watch the game does not benefit them anymore than if I watch it alone.

    Which I won't be doing. I could care less about the NFL or any other professional sport as they seem to be able to pay players multi-million dollars per year but cannot afford to build their own venues. I have little patience, or sorrow for any woes they achieve, on their own or otherwise. As for collegiate or Olympic sports, they don't pay their participants, but are no less greedy when it comes to CONTROL or income.

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

  2. identicon
    Anonymous Coward, 1 Feb 2019 @ 8:36pm

    antitrust

    NFL also enjoys some exemptions from FederalAntiTrust laws.

    Professional baseball is totally exempt from AntiTrust Law.
    US Supreme Court ruled in 1922 that pro baseball does not involve any interstate-commerce.

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

  3. identicon
    Anonymous Coward, 1 Feb 2019 @ 9:00pm

    Re: antitrust

    A nice thing about the US Supreme Court is that it can overrule itself. It might have been true in 1922 that pro baseball does not involve any interstate commerce, but there's no way that's true in 2019.

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

  4. identicon
    Anonymous Coward, 1 Feb 2019 @ 9:04pm

    Re: You can beat the crime, but you cannot ignore the ride.

    and that's the real problem in my opinion. If I have 1000x more wealth than you, I can use the courts to bankrupt you. It doesn't matter if I have the law on my side or not.

    Congress should change the civil court system so the loser pays everything. That would put an end to the shenanigans organizations like the NFL and the IOC pull ever year.

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

  5. icon
    Gary (profile), 1 Feb 2019 @ 9:40pm

    Re: Re: antitrust

    Common law, or judicial precedent, means that this is still just as true then as it is now. So it bears the full weight of the law unless the supremes change it.

    I guess since each game only take place in one state at a time it's all good, right?

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

  6. identicon
    Glenn, 1 Feb 2019 @ 9:42pm

    Neither the super bowl (no caps--not super) specifically nor the NFL in general is either interesting or entertaining. If it weren't for the controversy regarding bad officiating, I wouldn't even know who's playing--as with every other year for several decades.

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

  7. identicon
    Dan Under, 1 Feb 2019 @ 9:59pm

    Once again we get to ruffle their feathers

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

  8. identicon
    Paul Brinker, 1 Feb 2019 @ 10:07pm

    Re: Re: You can beat the crime, but you cannot ignore the ride.

    Loser Pays only works if you have enough money to get to the end. Sure its great if your Buffalo Wild Wings, and all your stores do a "Super Bowl" Viewing Party, You could fight the NFL till you win and collect your costs. Most likely the NFL wont bring a suit because they know the chain can fight back and the law is on their side.

    Joes Grill holds a party and they will be bankrupt from lawyer fees before the end of the case and the NFL knows this. The NFL will then demand a settlement where Joe's Grill says it was wrong to use NFL trademarks with out authorization and anyone who reads Tech Dirt will know that it really means, they dragged out the case by demanding 7 years of discovery, took individual action for each person at the event, and privately sued the owner just to get the point across that they will out spend Joe 10 to 1 in order to win. This settlement will of course be tossed in the face of the next 10 Grills.

    You would actully need a system that equalizes the courts when its the very rich sueing the not so rich. Technology could play a part here, where modern courts create wizards and establish vast software for even the novice could at least put up a fight with out a lawyer, but this will never happen as you have many starving lawyers who would be very angry if people were on equal footing with out them.

    Just look at apps that fight parking tickets, after a month or so of being live, they shut off the fax, disconnect the email box, and force anyone who still wants to fight to come in person.

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

  9. identicon
    Anonymous Coward, 1 Feb 2019 @ 11:43pm

    At my restaurant this weekend, we are celebrating unorthodox soups, so stop by Sunday for our annual Soup-Rebel Party!

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

  10. identicon
    Anonymous Coward, 1 Feb 2019 @ 11:43pm

    Re: antitrust

    I thought they ruled that the national interest was served by one professional league with stable talent rosters. The reserve clause was baseball's answer to players bailing on teams in midseason or holding the owners hostage.

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

  11. identicon
    Anonymous Coward, 2 Feb 2019 @ 8:05am

    They should do a Superman comic where he eats his cereal out of a Super Bowl and let them slug it out in court for the rights.

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

  12. icon
    Gary (profile), 2 Feb 2019 @ 8:47am

    Re: Re: antitrust

    That is the explanation I've heard from lawyers on several occasions, it was in the national interest.
    For them to have teams and rosters - not a monopoly on celebration. :)

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

  13. identicon
    Anonymous Coward, 2 Feb 2019 @ 10:05am

    Re: Re: You can beat the crime, but you cannot ignore the ride.

    Really what congress needs to do is start putting in criminal punishments for copyfraud. It shouldn't be up to every business owner to maintain their own lawyers for this. Instead they should have police kicking down their doors and the prosecutor trying to get them to plea to /only/ fifteen years in jail and asset forfeiture in the tens of millions.

    They absolutely deserve to be treated far worse than drug dealers because their whole societal purpose is literally predatory and undermining rule of law.

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

  14. identicon
    Anonymous Coward, 2 Feb 2019 @ 10:35am

    Re: Re: Re: You can beat the crime, but you cannot ignore the ri

    It's much more complex than that.

    We see often on the prosecution side of the aisle that lawyers will pick up cases pro bono (is this correct usage?) in exchange for a portion of the settlement/fine. So it's clear that many lawyers are fine with only being paid at the end of a case. However, it's likely that these penalties are often high enough that the lawyer is actually making more than they would have if paid directly, though I don't have any data on this. So a lot would depend on payment rates authorized by the courts.

    Ultimately, though, this is just a symptom of larger political dysfunction. The only reason that this kind of tactic is effective is that the court system is so drastically overworked that very basic litigation can take more than a year even when neither side is trying to drag it out. The US government has consistently failed to expand the court system in time with it's workload. Reasons for this a many and varied, but the main one is that most judges are appointed by the legislature and/or executive. Unfortunately, trust between members of the political establishment is near nonexistent, such that nobody is willing to expand the courts in fear that their political opponents may be in position to appoint additional judges.

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

  15. identicon
    Bruce C., 2 Feb 2019 @ 11:12am

    Re: Once again we get to ruffle their feathers

    ... or the soup ur-bowl... the mother of all soup bowls.

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

  16. identicon
    Bruce C., 2 Feb 2019 @ 11:18am

    Apart from trademark infringement..

    Most businesses such as Sports bars already pay extra to the cable companies to carry and retransmit the sports channels in their place of business, so these small businesses are legal sub-licensees (from the cable company) to "present" or "retransmit" the game. As sub-licensees to retransmit the game, the argument that they are misusing the NFL trademarks is even more ludicrous.

    On the other hand, I suppose it's possible that the cable cos are charging extra to these businesses. without actually having the right to sub-license presentations.

    A business that was "presenting" an over the air broadcast would probably be in hot water over copyright infringement, but might be able to make a fair use argument stand up.

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

  17. icon
    ECA (profile), 2 Feb 2019 @ 12:36pm

    And.

    Sports games used to be, REASONABLE to watch and see... NOW days you will pay More then you may have just to get a seat, close enough to NOT need binoculars, to see.. There is no building, field, auditorium, ... Big enough to suppor the number of people that would love to come, let alone Be close enough to see anything.. An event in Russia, had over 1 million people show up for an out door Light show and music show.. And I think it was free..Paid for by the government. What do you get for a ticket that can cost you Over $25,000, IF you can get one..

    What would happen if they didnt sell 1/2 the tickets??? that would be GREAT, if it could happen.

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

  18. icon
    zyffyr (profile), 2 Feb 2019 @ 2:55pm

    Re: Re: Re: antitrust

    In this particular case, it would make perfect sense for them to change it given that the Supremes redefined Interstate Commerce in the late 1930s / early 1940s. While the existing ruling probably made sense under the old rules, the existing "anything with even a theoretical economic impact is fair game" definition take that justification away.

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

  19. identicon
    cpt kangarooski, 2 Feb 2019 @ 6:17pm

    Re: Re: Re: Re: You can beat the crime, but you cannot ignore th

    We see often on the prosecution side of the aisle that lawyers will pick up cases pro bono (is this correct usage?) in exchange for a portion of the settlement/fine.

    That’s not pro bono.

    Pro bono essentially means that the case is taken for free. Sometimes a court might award fees and costs to a winning party, allowing a pro bono attorney to get paid, but it’s the exception.

    I’d say you’re thinking of a qui tam suit brought on a contingency basis. That is, a civil suit where an individual sues someone on behalf of the government, claiming that the defendant ripped off the government; in exchange for bringing the suit, qui tam plaintiffs are allowed a share of the damages (if any) as a reward. A lawyer could agree to represent someone in exchange for a share of that reward, if there is one.

    Regarding contingency fees generally, I can assure you that no lawyer ever works on contingency unless they think they can make more money than on an hourly basis. But there are risks involved — not getting paid, not having any money come in for years, perhaps, having to do so much work that it turns into a losing proposition that cannot be escaped — which must also be taken into account. Plus, some clients with good cases might not be able to afford hourly fees, so there is also a concern that there won’t be enough work to go around if everyone refuses to take contingency cases.

    The only reason that this kind of tactic is effective is that the court system is so drastically overworked that very basic litigation can take more than a year even when neither side is trying to drag it out. The US government has consistently failed to expand the court system in time with it's workload. Reasons for this a many and varied, but the main one is that most judges are appointed by the legislature and/or executive.

    Well also things just take time, and lawyers often are juggling multiple cases at once. In my personal experience, cases that don’t even reach trial and which aren’t especially contentious can take a year to a year and a half, just because of the difficulty in working things out between the lawyers’ schedules.

    It reminds me of that Clausewitz quote: Everything in war is very simple, but even the simplest thing is difficult.

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

  20. identicon
    Anonymous Coward, 3 Feb 2019 @ 1:52am

    Greatest Trick

    Got to disagree about this being the "Greatest Trick." Tax-exempt, 501(c)(6) it Trick #1. Their trademark bullshittery runs a lame and distant second place.

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

  21. identicon
    Prinny, 3 Feb 2019 @ 3:54am

    Thing is, the NFL is used to dealing with stupid people, dood. Remember a few years back when we found out about all those football players who didn't understand how repeatedly damaging your brain with concussions over a long term could lead to long-term brain damage? The NFL spends most of its time dealing with folks who are literally that dumb. So it shouldn't surprise anyone when they treat the rest of the world as if they're that dumb too.

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

  22. identicon
    Anonymous Coward, 3 Feb 2019 @ 11:02am

    Re:

    Yeah, and those stupid cheerleaders - how dumb can you be signing up for a job that pays less that minimum wage and sexually harasses you. It's their own fault I say!

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

  23. identicon
    Anonymous Coward, 3 Feb 2019 @ 12:11pm

    Reddit.com/r/superbowl

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

  24. identicon
    Anonymous Coward, 3 Feb 2019 @ 4:43pm

    Re:

    Bit harsh to go after the players when even the licensed medical professionals that studied it didn't know until some of the players finally died and had their brains cut open, and the doctors realized that concussions had permanent effects that worsened with frequency, even when wearing helmets.

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

  25. identicon
    Anonymous Coward, 3 Feb 2019 @ 5:27pm

    Eh, at least they're not as bad as the Olympics

    At least businesses are allowed to acknowledge there's a pro football championship on the first Sunday in February; unlike the IOC, who won't even let them acknowledge literally anything to do with a certain quadrennial multi-sport event that must not be named.

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

  26. identicon
    Anonymous Coward, 4 Feb 2019 @ 5:16am

    Re: Re:

    They did know, though. They knew pretty much forever, and the teams deliberately had them downplay the risks to the players. It may have taken a while to realize just how bad it could get, but nobody with a working brain thought concussions were harmless the way they were telling the players. (A set of people which apparently does not include football players! Every once in a while the stereotypes turn out to be true.)

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

  27. identicon
    Anonymous Coward, 4 Feb 2019 @ 7:47am

    Re: Re: Re:

    That explains football players, what about those nascar crazies?

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

  28. identicon
    Anonymous Coward, 4 Feb 2019 @ 8:54am

    Isn't the NFL a non profit organization? That's their greatest trick.

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

  29. identicon
    Prinny, 4 Feb 2019 @ 8:54am

    Re: Re:

    Not sure exactly what you're trying to convey here, dood. I can think of 3 or 4 possible interpretations, even knowing it's sarcasm, and none of them reflect particularly well on you.

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

  30. identicon
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