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

Originally posted 2012-12-19 17:21:37. Republished by Blog Post Promoter

[stextbox id=”info”]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.[/stextbox]

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 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.

By Ron Coleman

I write this blog.

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