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.