Super bowling
Super bowling

Every year around Super Bowl time I post an item about the NFL’s overzealous efforts to impose a gridiron grip on all aspects of its somewhat valuable SUPER BOWL trademark:

It’s the overselling that’s offensive, because of course the NFL has a trademark right to SUPER  BOWL.  But like all IP owners, the league has set up a campaign not only to protect its legitimate rights but a buffer of illegitimate intimidation-based quasi-rights around the real thing.

This buffer zone not only establishes a zone of litigation-based (not legal-based, litigation-based) early warning triggers around the real rights, such that any would-be infringer on the trademark would have to traverse the hopelessly expensive no-man’s land of illegitimate litigation threats.  It also has an even more insidious effect of actually causing an expansion of the original right itself.  It does this by actually enhancing the perceived “untouchability” of the real trademark, i.e., its isolation in the market, cinching the future results of consumer surveys and other indices (including, of course, the claim that mark holder “vigorously enforces” its rights) that could be used in a future trademark infringement or dilution claim. This is a privilege Congress, but far more so the judiciary, the latter of which almost never enforces the extant, if weak, fee-shifting provisions of the Lanham Act, have reserved exclusively to wealthy trademark owners.

One cost of this process to the likes of the NFL, however, is that some its “people” do have to find themselves signing cease and desist letters and making statements to reporters that contain some pretty preposterous claims.  That’s not much of a cost, because these “people” are paid to do it.  Consider this story, via David Gibber, reporting on the fairly uncontroversial practice of the NFL, lo this Super Bowl season, of cracking down on unlicensed vendors of team-affiliation merchandise:

Hawkers selling unlicensed Ravens apparel: beware. The NFL is scouring the area, fiercely guarding its product and willing to alert authorities if its name is being violated.

NFL officials say that the unauthorized use of its shield and team logos on merchandise happens across the country every year, and that as teams progress through the playoffs, the issue grows substantially in the respective cities. The NFL has an exclusive deal with Reebok for its T-shirts, jerseys, hats and other apparel.

League representatives estimate that they lose a significant amount of money each year to hawkers using NFL teams’ names, although they could not provide a figure. Anastasia Danias, an attorney for the league, said that U.S. businesses lose about $250 billion a year in revenue because of the counterfeit market.

No, I’m not talking about that $250 billion figure — which sounds mighty shaggy.  All the above is completely plausible, once you accept the dubious, but completely mainstream argument, that the law of trademark really is meant to protect against this.  But along those lines, here comes a Super Bowl of whoppers:

“It hurts. To the fan, they’re getting an inferior product,” Danias said. “It’s made much more cheaply and without attention to detail.”

Really, at what price is professional self-respect sold such that one can say such a thing to a newspaper sold in the town where you live?  Yeah, the NFL — always looking out for “the fan”!

In case I am too obtuse still, here’s the point:  Everyone knows “the fan” doesn’t need to be protected from allegedly shoddy merchandise bearing an NFL team logo any more than “the fan” needs to be protected from shoddy merchandise bearing paisley, polka dots or duckies. “The fan” chooses what he wants to spend on a garment and is perfectly willing and able to evaluate quality for himself.

Unlike someone who purchases a designer or specific maker’s product and relies on the maker’s label as a guarantee of quality, “the fan” does not associate the Ravens trademark with the quality of the garment. Notwithstanding the NFL’s exclusive contract with Reebok, manufacturers of fine athletic wear (maybe!), “the fan” is buying a Ravens jersey not because  he associates “genuine” NFL logo merchandise with high quality construction and materials.  He buys it because he wants a Ravens logo on his jersey!

He wants to show the world, loud and proud, that he loves his team!

Again:  Under current law the NFL owns the right to prevent the manufacture and sale of unlicensed merchandise bearing the trademarks of its valuable NFL franchises.  This is simply an exploitation of the brand equity built by the league, and the policy choice to assign this “rent” to the NFL, while not morally mandated, is not unreasonable either.  And it is not likely to change.

But don’t try a head fake about protecting “the fan,” attorney Danias.  You’re throwing into deep coverage here!

By Ron Coleman

I write this blog.

9 thoughts on “Counterfeit arguments”
  1. I thought trademarks and copyrights expired after so long. Remakes of popular Rock songs made after the first SUPER BOWL have been popping up – how come the NFL still gets to claim dibs?

    Shouldn’t that old stuff be in the public domain now, and unavailable for anyone to claim as “mine”?

  2. Brad, they only become public domain if you do not enforce the trademark/copyright. If a singer/publisher lets tribute bands play their songs without a contract or lets their music be played at public events without enforcing their copyright, over time it becomes public domain. If however, every time they catch wind of someone using their property without consent and they litigate they retain the rights.

    1. Elmer, copyrighted works do not go into the public domain by non-enforcement or acquiescence via a process comparable to the way trademarks may become generic. Here is a little discussion on that topic:

      There is a common belief that if someone infringes a copyright, and the copyright owner does not sue or otherwise put a stop to the infringement, the copyright is lost and the work goes into the public domain. There is some pre-1988 law on this (e.g., Stuff v. E.C. Publications, 432 F.2d 143 (2d Cir., 1965) and Transgo v. Ajac Transmission Parts, 768 F.2d 1001 (9th Cir. 1985)), but it seems to derive mostly from the fact that the copyright holder had acquiesced in the publication of the work without notice back when notice was a requirement. It was the publication without notice, and not the lack of enforcement, that actually worked to put the work in the public domain. This is forfeiture of copyright, not abandonment. Because the notice requirement is now gone from copyright law, these cases don’t have much weight today.

      I can’t find anything that supports the idea that failure to assert a copyright against an infringer can alone lead to placing the work in the public domain (if you have any authoritative information on this, please drop me a note at one of the addresses listed in the introduction). Of course, circumstances may be such that the ability to sue a particular infringer might be waived (e.g., a statute of limitations may expire (see section 3.4), or if the infringer has reasonably relied to his or her detriment on the copyright holder’s failure to sue, the doctrine of laches may bar a suit), but that’s only with respect to that particular infringer, and does not affect the status of the copyright with respect to others.

  3. How about the NFL do a better job protecting the fans from a shoddy product like that put on the field by the Detroit Lions?

  4. I’ve stopped watching pro football and most other pro sports (including quasi-pro “college” ball). Great athletes blocking, tackling, checking, shooting, passing, swinging, scoring, etc., for the big buck. The intensely commercial aspect — I remember when they played for other reasons — turns me off. So I turn off the TV.

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