Tag Archives: Super Bowl

NFL punts in “Big game”

Originally posted 2007-05-25 13:34:06. Republished by Blog Post Promoter

The NFL is a lot of things, but I never thought it was stupid. It turns out that it isn’t. The Sports Blognfl.jpg reports:

Remember that stupid effort by the NFL to trademark the phrase “Big Game,” even though everyone knows the phrase has, for more than a century, been used referring to the Cal-Stanford rivalry?

Well, the NFL has dropped its bid.

Smart.

UPDATE:  “Repeat after me: TRADEMARKS ARE NOT “WORD PATENTS”

SUPER BOWL® Trademark Watch and Contest I

Originally posted 2008-01-17 15:50:57. Republished by Blog Post Promoter

nfl-logoEvery year it’s the same thing: Several weeks before the Super Bowl®, people and businesses wishing to promote events related to the timing of the biggest sporting event of the season — the Super Bowl®, that is, the National Football League’s championship game — go through all sorts of contortions to avoid saying the trademark-protected words, Super Bowl. Most frequently ad copywriters and broadcast announcers used the phrase, “the big game,” until last year they were intimidated out of even that tepid use of a descriptive word by the league as well.

This year should be no different, and you can already hear the litigation terror bubbling up on sports radio and elsewhere. Want to tell people they can get a great price on a new large-screen HDTV on which to watch the Super Bowl®? No way! You can’t say that on TV! People will think the TV is an Official Super Bowl® Broadcast Entertainment and Enjoyment Partner! And so on. There is no fair use of trademarks when it comes to the Super Bowl® — right?

Of course not right.

I would love to collect Super Bowl® trademark workarounds that people see in the various media and post them on LIKELIHOOD OF CONFUSION®. But… I need your help in order to get up a nice collection in time for the

SUPER BOWL®!

So please spread the word, keep your eyes and ears open, and send submissions to me at likelihoodofconfusion at GMAIL. If we get enough submissions we can make a contest out of it. It could be the SUPER BOWL® of IP Blawging submission contests, no?

Don’t say it! SUPER BOWL®, that is.

I don’t watch a lot of TV — don’t even have one, actually.  And I only raise the topic because that is my excuse for missing this epochal commercial riffing on my favorite topic — the Big Game that Shall Not Be Mentioned.  Not mentioned, that is, because of, you know.  Bullies.  Trademark bullies.

Super Bowl® bullies.

Anyway, good thing Chuck “no relation, not a typo” Colman is out there keeping tabs on stuff, as in this incredibly trademark-law laden post.  Makes my brain hurt, even, but that’s because when I came into the game, of course, we’d be sent right back in for the next series after a deep snort of smelling salts.  Chuck, he’s a young gun.

And this TV, now, that is easy watchin’!  Edjamacational too.  So as a matter of record, the Samsung spot has to be embedded here, too:

Yes.  Yes yes yes yes yes.

Hey — here’s a thought:  Isn’t it kind of funny to have a brand that you don’t want people to mention?

One more reason some of us just don’t “get” big-time Brand Equity, I guess.

Shh.  Don’t mention that brand!

The ugly side of branding

Originally posted 2007-07-27 15:42:20. Republished by Blog Post Promoter

Who but the ultimate trademark pig the NFL would make unwilling third parties endorse their sponsors?

Makes me want to throw a SUPER BOWL PARTY!

Best of 2012: SUPER BOWL® trademark post XI: Consumer Reports and the super-duper exemption

Blogger Ron ColemanAt the end of the year, when I typically have more time for blogging because things are so relatively relaxed in the lawyering part, I recycle instead.  The main reason is that traffic really starts to plummet about now, through New Year’s.  If a blog post falls in the forest, right?  With that, we now initiate 2012’s “Best of” class.  The “Best of” selection for this year is, as always, based on criteria.  This first re-run was published originally on  January 30, 2012.

Thank you for your attention to this matter.

Yes, it is that time of year again — the SUPER BOWL® trademark overreaching (dare I say bullying?) time of year.  This January I’m focusing on this article from, of all places, Consumer Reports, which focuses on the BIG GAME non-trademark aspect of the NFL’s X’s and O’s on this:

[I]f you’ve been searching the Web for an amazing Super Bowl deal on an HDTV only to find the pickings slimmer than a runway model after a three-day fast, we have another suggestion: Try substituting the term “Big Game” for “Super Bowl” in your search engine.

Get a bit more action? That’s because retail ads and promotions can’t legally use the phrase “Super Bowl”—or even “Super Sunday”—unless the companies have paid big bucks (really big bucks) to the NFL, which owns the trademarks to the two terms. Fortunately, exceptions are made for news organizations like Consumer Reports, or this article would have a different headline.

Good idea on the search strategy. But not quite sure I get that last line.  Yes, they’re right about the application of the fair use doctrine to news and commentary, but mistaken (and surprisingly, given Consumer Reports‘ supposed mission) in suggesting that non-profit organizations are per se entitled to assert the defense without regard to the nature of the use in question.  They are not.

Non-profit use of a trademark is indeed a factor courts consider when analyzing fair use.  Now, the fact is there is no way on earth this article (but wait, there’s more!) constitutes a prima facie copyright or trademark infringement such that fair use would have to be asserted in an action by the NFL.  But even if it did, there is no bright-line “exception for news organizations.”

I sure hate to think that, laboring under such a misapprehension, Consumer Reports is actually refraining from giving accurate, descriptive names to its publications that happen to be someone’s copyright or trademarks.

In fact, Consumer Reports’ misunderstanding of the fair use doctrine is so profound, from how I understand it, anyway, that this next part is not too surprising, though it is pretty amusing (sorry, it just is) — and it clearly does not look at all like fair use!:

Find all of our Super Bowl coverage in one place on ConsumerReports.org: Super Bowl XLVI game plan helps you pick out the best TVs for watching the game, how to find those TVs, apps that’ll augment your fun, the tastiest TV-watching treats, and lots more.


Really?!  Maybe there is a super-duper blanket exception for Consumer Reports!  We’ll see.

I do like this from the piece:

But just as it’s done in years past, regional retailer H.H. Gregg is once again pushing up against the NFL’s Super Bowl advertising restrictions—this year with a website that sports a very Super Bowl-looking logo, complete with the words “Super Sale” and the Roman numerals “XLVI.” I guess some retailers figure “Big Game” promotions call for some big-time gambles, and not just on the outcome of the game.

Perhaps other retailers will also adopt more creative end-arounds to help promote football-oriented TV sales without violating the NFL’s trademarks. As we get closer to game day, let us know if you see any local ads that tie in to a “Big Game” promotion, or if you notice any especially creative ways a dealer is finding to promote “super” sales without getting flagged by the NFL for trademark encroachment.

Ah, the old SUPER BOWL® trademark contest promo, eh?  Maybe it will work better for CR than it did for LIKELIHOOD OF CONFUSION®.  Could be that super-duper exemption thing?

UPDATE:  The New York Times, in its article inviting readers to enjoy its live online coverage, bravely writes:

Follow this link to invite us to your Super Bowl party or to join ours.

Gasp!  “Super Bowl Party“?!!

Yes.  Super Bowl Party.  It’s fair use, damn it:  It’s a party.  You’re going to watch the Big — I mean, the Super Bowl.  And there is no conceivable concern of confusion, dilution or anything nearly so corrosive.

It’s a celebration of a great event, protected by a great trademark:  Your Super Bowl party, at your house or even Pinch Sulzberger’s.   Say it.

SUPER BOWL® trademark post XI: Consumer Reports and the super-duper exemption

Yes, it is that time of year again — the SUPER BOWL® trademark overreaching (dare I say bullying?) time of year.  This January I’m focusing on this article from, of all places, Consumer Reports, which focuses on the BIG GAME non-trademark aspect of the NFL’s X’s and O’s on this:

[I]f you’ve been searching the Web for an amazing Super Bowl deal on an HDTV only to find the pickings slimmer than a runway model after a three-day fast, we have another suggestion: Try substituting the term “Big Game” for “Super Bowl” in your search engine.

Get a bit more action? That’s because retail ads and promotions can’t legally use the phrase “Super Bowl”—or even “Super Sunday”—unless the companies have paid big bucks (really big bucks) to the NFL, which owns the trademarks to the two terms. Fortunately, exceptions are made for news organizations like Consumer Reports, or this article would have a different headline.

Good idea on the search strategy. But not quite sure I get that last line.  Yes, they’re right about the application of the fair use doctrine to news and commentary, but mistaken (and surprisingly, given Consumer Reports‘ supposed mission) in suggesting that non-profit organizations are per se entitled to assert the defense without regard to the nature of the use in question.  They are not.

Non-profit use of a trademark is indeed a factor courts consider when analyzing fair use.  Now, the fact is there is no way on earth this article (but wait, there’s more!) constitutes a prima facie copyright or trademark infringement such that fair use would have to be asserted in an action by the NFL.  But even if it did, there is no bright-line “exception for news organizations.”

I sure hate to think that, laboring under such a misapprehension, Consumer Reports is actually refraining from giving accurate, descriptive names to its publications that happen to be someone’s copyright or trademarks.

In fact, Consumer Reports’ misunderstanding of the fair use doctrine is so profound, from how I understand it, anyway, that this next part is not too surprising, though it is pretty amusing (sorry, it just is) — and it clearly does not look at all like fair use!:

Find all of our Super Bowl coverage in one place on ConsumerReports.org: Super Bowl XLVI game plan helps you pick out the best TVs for watching the game, how to find those TVs, apps that’ll augment your fun, the tastiest TV-watching treats, and lots more.


Really?!  Maybe there is a super-duper blanket exception for Consumer Reports!  We’ll see.

I do like this from the piece:

But just as it’s done in years past, regional retailer H.H. Gregg is once again pushing up against the NFL’s Super Bowl advertising restrictions—this year with a website that sports a very Super Bowl-looking logo, complete with the words “Super Sale” and the Roman numerals “XLVI.” I guess some retailers figure “Big Game” promotions call for some big-time gambles, and not just on the outcome of the game.

Perhaps other retailers will also adopt more creative end-arounds to help promote football-oriented TV sales without violating the NFL’s trademarks. As we get closer to game day, let us know if you see any local ads that tie in to a “Big Game” promotion, or if you notice any especially creative ways a dealer is finding to promote “super” sales without getting flagged by the NFL for trademark encroachment.

Ah, the old SUPER BOWL® trademark contest promo, eh?  Maybe it will work better for CR than it did for LIKELIHOOD OF CONFUSION®.  Could be that super-duper exemption thing?

UPDATE:  The New York Times, in its article inviting readers to enjoy its live online coverage, bravely writes:

Follow this link to invite us to your Super Bowl party or to join ours.

Gasp!  “Super Bowl Party“?!!

Yes.  Super Bowl Party.  It’s fair use, damn it:  It’s a party.  You’re going to watch the Big — I mean, the Super Bowl.  And there is no conceivable concern of confusion, dilution or anything nearly so corrosive.

It’s a celebration of a great event, protected by a great trademark:  Your Super Bowl party, at your house or even Pinch Sulzberger’s.   Say it.

Best of 2011: The entrepreneurship of trademark bullying

Originally posted January 12, 2011.
I figured I must have written somewhere about that PTO trademark bullying thing — or if I didn’t, I am sure I linked to someone who did — well, I thought I did.

But finally, I really did.  And I was reminded of it when I read a press release including this interesting comment from one Scott Smith.  It also links to this article about Entrepreneur magazine’s own trademark adventures in attempting to secure ownership of part of the English language.

Now, what I wrote, however, is in an article called “Bully for Who?” in the January 2011 Intellectual Property Magazine.   (You can read or download it here.)

Below is a fairly unrepresentative sample of the article.  As it is, I could not resist the seasonal opportunity to consider one particular trademark bully whose invocation is practically an annual LIKELIHOOD OF CONFUSION® tradition

Is there anything worse than a “bully”?  Maybe not, but a close second may be the misuse of loaded terms – such as “bully,” “racist,” etc. – to avoid reasoned consideration of substantive issues. In fact, there really is a trademark bullying problem in US law and practice. But discussion will not be fruitful, and solutions will not be found, unless we define our terms. We need to separate bullying, a real issue for which there are solutions, from rational and fair enforcement of bona fide rights that can exist even where big firms employ “disproportionate force” to achieve their aims. . . .

[F]or all our hand-wringing over asymmetry in legal disputes, we must keep in mind that in two out of the three examples of supposed trademark bullying set out above, even absent many of the more nefarious elements in the last paragraph (in which some defendants were all domestic, above-ground and legally compliant), the “bullies” were to some extent repulsed. Mega-brewer Anheuser-Busch, faced with the fury of an underdog-loving Internet, backed off from its threats against Vermonster, described in an October 2009 article in Atlantic Monthly entitled, “In Beer Battle, Internet Beats Goliath.”  Similarly, while Intel Corporation continues its mop-up operations against pockets of resistance to its legally “no quarter” policy on domain names using the word “intel,” it recently dropped one such case brought in California that received some Internet attention when pro bono legal assistance brought the company to the brink of an unfavorable published opinion that could scotch its entire enforcement campaign. . . . [aw, shucks!].

Yet there are real bullies, real abuses of the system, exactly as the economic theory of “rent seeking” predicts there would be. The problem is well understood by consideration of one of the best-known trademarks in the US, and one deserving of great protection:  SUPER BOWL®, the name of the annual championship game in the National Football League (NFL). Like all IP owners holding premium “brand equity,” the NFL has in place an “enforcement programme” designed not only to protect its legitimate rights, but to establish a buffer zone of illegitimate, intimidation-based quasi-rights that have a very real effect because it is never economically rational to test them in court. Such a buffer zone establishes a zone of litigation-based (not legal-based, litigation-based) early warning triggers around the real rights, such that any purported infringer of the trademark – even a party making a protected fair use of the SUPER BOWL® mark – would have to traverse the hopelessly expensive no-man’s land of illegitimate litigation threats to establish his defense.

Did I give away the game?

Bully for who?

Or should it be whom?  Anyway, my article on trademark bullying first published in January’s Intellectual Property Magazine and excerpted in this previous post, is now available free and easy for download, right here.

Here’s what the old bloggers would call the “money quote” on that excerpt, if I may. Please forgive the British spelling — it’s that kind of magazine.  Links are exclusive to here, though!:

[T]here are real bullies, real abuses of the system, exactly as the economic theory of “rent seeking” predicts there would be. The problem is well understood by consideration of one of the best-known trademarks in the US, and one deserving of great protection:  SUPER BOWL®, the name of the annual championship game in the National Football League (NFL). Like all IP owners holding premium “brand equity,” the NFL has in place an “enforcement programme” designed not only to protect its legitimate rights, but to establish a buffer zone of illegitimate, intimidation-based quasi-rights that have a very real effect because it is never economically rational to test them in court. Such a buffer zone establishes a zone of litigation-based (not legal-based, litigation-based) early warning triggers around the real rights, such that any purported infringer of the trademark – even a party making a protected fair use of the SUPER BOWL® mark – would have to traverse the hopelessly expensive no-man’s land of illegitimate litigation threats to establish his defense.

The entrepreneurship of trademark bullying

I figured I must have written somewhere about that PTO trademark bullying thing — or if I didn’t, I am sure I linked to someone who did — well, I thought I did.

But finally, I really did.  And I was reminded of it when I read a press release including this interesting comment from one Scott Smith.  It also links to this article about Entrepreneur magazine’s own trademark adventures in attempting to secure ownership of part of the English language.

Now, what I wrote, however, is in an article called “Bully for Who?” in this month’s Intellectual Property Magazine.  You can download it here.

Below is a fairly unrepresentative sample of the article.  As it is, I could not resist the seasonal opportunity to consider one particular trademark bully whose invocation is practically an annual LIKELIHOOD OF CONFUSION® tradition

Is there anything worse than a “bully”?  Maybe not, but a close second may be the misuse of loaded terms – such as “bully,” “racist,” etc. – to avoid reasoned consideration of substantive issues. In fact, there really is a trademark bullying problem in US law and practice. But discussion will not be fruitful, and solutions will not be found, unless we define our terms. We need to separate bullying, a real issue for which there are solutions, from rational and fair enforcement of bona fide rights that can exist even where big firms employ “disproportionate force” to achieve their aims. . . .

[F]or all our hand-wringing over asymmetry in legal disputes, we must keep in mind that in two out of the three examples of supposed trademark bullying set out above, even absent many of the more nefarious elements in the last paragraph (in which some defendants were all domestic, above-ground and legally compliant), the “bullies” were to some extent repulsed. Mega-brewer Anheuser-Busch, faced with the fury of an underdog-loving Internet, backed off from its threats against Vermonster, described in an October 2009 article in Atlantic Monthly entitled, “In Beer Battle, Internet Beats Goliath.”  Similarly, while Intel Corporation continues its mop-up operations against pockets of resistance to its legally “no quarter” policy on domain names using the word “intel,” it recently dropped one such case brought in California that received some Internet attention when pro bono legal assistance brought the company to the brink of an unfavorable published opinion that could scotch its entire enforcement campaign. . . . [aw, shucks!].

Yet there are real bullies, real abuses of the system, exactly as the economic theory of “rent seeking” predicts there would be. The problem is well understood by consideration of one of the best-known trademarks in the US, and one deserving of great protection:  SUPER BOWL®, the name of the annual championship game in the National Football League (NFL). Like all IP owners holding premium “brand equity,” the NFL has in place an “enforcement programme” designed not only to protect its legitimate rights, but to establish a buffer zone of illegitimate, intimidation-based quasi-rights that have a very real effect because it is never economically rational to test them in court. Such a buffer zone establishes a zone of litigation-based (not legal-based, litigation-based) early warning triggers around the real rights, such that any purported infringer of the trademark – even a party making a protected fair use of the SUPER BOWL® mark – would have to traverse the hopelessly expensive no-man’s land of illegitimate litigation threats to establish his defense.

Did I give away the game?  Again, the whole article is here.

Large game

Forbes chimes in on the NFL’s heavy-handed IP campaign, and how much more this year has looked like flag football, or maybe “touch”:

nfl-logoClearly, brand owners need to be proactive to protect their intellectual property rights, which are enormously valuable assets and can be threatened by piracy and unauthorized third-party uses. And clearly the NFL has taken this mandate to heart. But its aggressive tactics raise the question: When is a global brand owner overstepping the line of reasonable enforcement? The NFL found its tipping point when it applied to register “The Big Game” as a trademark. . . .

Not only did the NFL blink by withdrawing its applications, but the league apparently hasn’t attempted to prevent any current promotions from referring to “The Big Game” either. A current Radio Shack promotion encourages consumers to “make The Big Game even bigger” by purchasing high-definition TV accessories, and one of the national pizza chains asks viewers to participate in a text messaging contest “when the Big Game takes place in Phoenix on Sunday.”

Naturally there is a flip side to this coin. Advertisers still must be careful not to skate over the edge and force a brand manager’s legal hand. In 1999, a judge sided with the NFL in a dispute over Coors’ use of the phrase “the official beer of NFL players.” Coors’ use had been based on its partnership with National Football League Players Incorporated, the marketing arm of the NFL players’ union. Coors was ordered to remove the offending phrase from its advertising.

The lesson at the end of the day is that while protecting a brand from infringement and dilution is always mission-critical, you can go too far. The NFL has learned that, and so should other global brand executives.

Couldn’t have said it better myself (though “better” and “earlier” are different things). SUPER BOWL-style helmet tip to Jeff Richardson.

SUPER BOWL!!!! (Updated and moved up)

nfl-logoSUPER BOWL! SUPER BOWL! SUPER BOWL!

Now that they “own” the English words “Super Bowl” — terrifying everyone from even the fairest of use with the threat of linebacker-sized litigation — Marty Schwimmer reports that the NFL wants to own the euphemism of choice — THE BIG GAME — too. The opposition period is now. Do you want to oppose the granting of this trademark registration? Do you have some possible standing to do so? Please? I’m sure we can work something out. Someone has to stop this juggernaut! This is the real Big Game! Hat tip to Legal Fixation.

SUPER BOWL! SUPER BOWL! SUPER BOWL!UPDATE: Cal and Stanford push back. (Where are Yale and Harvard? If the Big Game is about to be taken out of the lexicon, how long can it be for The Game?) How’s this for an incredibly fatuous NFL response?:

The NFL insists that Cal and Stanford have nothing to fear if it is granted the trademark by the U.S. Patents and Trademark Office.

“This filing was done in regard to companies that have attempted an end-run around the term ‘Super Bowl,’ ” said Brian McCarthy, the NFL’s director of corporate communications. “So this would not affect the college game that’s played in the fall.

“It would affect somebody who was trying to intimate a relationship with the NFL or the Super Bowl. They’re trying to draft off the goodwill we’ve built up over the years.”

Don’t you get it? They don’t just believe they own the words SUPER BOWL for all purposes. They believe they own the concept. They’re targeting the appliance store that is already too intimidated to run the ad saying, “Come to John’s for a great deal on a wide-screen TV to watch the Super Bowl” — which only an idiot would think “intimates a relationship” between John and the NFL, as opposed to John and human life in North America. Now they don’t even want John to be able to say, “Come to John’s for a great deal on a wide-screen TV to watch the big game!” — which is what, if you haven’t noticed, John has been doing for the last five years.

It’s PREPOSTEROUS! SUPER BOWL! SUPER BOWL! SUPER BOWL!

UPDATE: Bad press along the same lines from the San Francisco Examiner. He makes my Harvard-Yale game point but we’ll never prove he read it here, will we? Meanwhile just down the Coast the NFL admits the breadth of its arrogance in the Los Angeles Times:

“You hear radio ads or TV commercials where a company would promote its product by saying, ‘Come on in before the big game’ ” said Brian McCarthy, the league’s director of corporate communications. “We’re in essence trying to stop these companies from doing an end-around on the Super Bowl.

“To some it may be comical, but to us it dilutes the value of the Super Bowl and our ability to sell those rights to our partners.”

But it is, in fact, comical Brian. Comical and cynical. SUPER BOWL!

UPDATED:  The NFL punts.