[Blogmeister’s note: Kevin Goldberg, our resident Swami when it comes to predicting Supreme Court decisions, is also our guru (Swami? Guru? Yes, he’s that multicultural) for all things trademark. Since it’s That Time Of The Year, we asked him to re-visit the NFL’s perennial effort to control the use of the term “Super Bowl®”. The Swami initially larded his response with tons of references to Tim Tebow in a transparent attempt to attract all kinds of hits to his post. But we’re obviously above the kind of cheap ruse that would depend on repeated use of the name “Tim Tebow” to improve CommLawBlog®’s hit stats. Accordingly, we have edited out of Kevin’s post the name “Tim Tebow” (who plays for the Denver Broncos® – who aren’t even playing in the Super Bowl® this year. Everybody knows it’s the New York Giants® and the New England Patriots®, featuring Tom Brady).]
Football is a game of numbers. Here are some interesting Super Bowl®-related numbers for you:
455 The number of trademark applications that have been filed listing the “National Football League” as the applicant/owner
141 The number of federally registered trademarks owned by the “National Football League”
9 The number of trademarks containing the word “Super” that are owned by the National Football League
11 The number of international classes in which these trademarks exist
Ideally you’ve figured out by now that this post serves as our annual reminder – for the fourth year running – that the National Football League takes its trademarks very seriously. The league uses those marks to protect its exclusive right to use the term “Super Bowl®”. As the NFL® sees it, that right extends not only to the game itself, but also to a mind-numbing range of stuff from clothing to jewelry to party invitations/napkins/decorations/posters to sporting goods to a concert series to things like . . . television broadcasting services.
Close examination of available records indicates that the scope of the NFL®’s trademark protection does not appear to include parties, restaurants, bars or contests. As a result, one might legitimately wonder whether the NFL® really has the strength it claims in threatening legal action against anyone using the term “Super Bowl” in promoting their own events (assuming you could do so without infringing the NFL®’s trademarks with respect to goods and services that it has protected). But there’s no doubt that the league (like the owner of our local Super Bowl-averse franchise here in DC), has never been shy about threatening legal action and certainly has the money to back it up.
Better safe than sorry we say, so we’ll reiterate our advice from last year:
The NFL has registered several trademarks, many of which you might feel inclined to use when you’re referring to the Event-Of-Overriding-National-Importance-That-Shall-Not-Be-Named. These include: the expressions “Super Bowl®”, “Super Sunday®”, “National Football League®”, “American Football Conference®” “National Football Conference®”, “NFL®”, “AFC®”, “NFC®”. The NFL also holds a registration on the Super Bowl logo, and all team names, uniforms and logos.
With that in mind, one should NOT use any of these terms or images in a way that falsely connotes any connection to the league, the game or the teams, especially if that occurs in conjunction with the promotion of any event, contest, or other activity not sanctioned by the league.
On the other hand, one MAY use those terms and images in a legitimate news story, factual recitation or commentary about the game, before or after it occurs. One MAY also use other, generic terms which have not been registered as trademarks including the all-time favorite alternative, i.e., “The Big Game” (although several years ago the NFL® took an unsuccessful stab at registering “The Big Game”). One MAY also use the names of the cities whose teams are competing in the game (without using the team nicknames).
And, as we’ve said before, the same considerations apply to lots of other prominent sports- or entertainment-related trademarks, so consider all of this equally applicable to events such as the Oscars®, March Madness®, and the Olympics®. (Helpful practice tip: The IOC is another entity not shy about asserting its legal rights.)
Finally, since this post is all about the number and because I am the Swami, I’d be remiss if I didn’t offer a prediction on the Big Game. (This is, of course, for entertainment purposes only):
Patriots: 34
Giants: 28
Take that with a grain of salt, since the Super Bowl® is generally the only game I watch in its entirety each year, and those 60 minutes are probably more football than I watched in the previous 20 weeks. You want a real prediction for Sunday, February 5? Chelsea: 1, Manchester United: 3. Glory, Glory Man United!
[Blogmeister’s note: “Multicultural” only begins to describe him . . .]
