Yet again, the NFL provides evidence of its aggressive efforts to protect both trademarks it owns and trademarks it doesn’t own.
With four minutes to go in the AFC Championship game and the Ravens looking good for a trip to Super Bowl XLVII®, I noticed that the hashtag #Harbowl was already blowing up on my Twitter feed. That’s because a Ravens victory would mean that, for the first time in NFL history, two brothers – those would be John and Jim Harbaugh, of the Ravens and Forty-Niners, respectively – would be facing each other as head coaches in the Super Bowl®. Look for “Harbowl” to become the unofficial moniker for the game.
Being a trademark lawyer geek, I immediately flashed on two thoughts: (1) how quickly could I get an application on file with the U.S. Patent and Trademark Office (USPTO) to register “Harbowl” as a trademark (for hats, shirts, bumper stickers, temporary tattoos and all the other impulse items that NFL fans will be craving for the next two weeks); and (2) what are the chances that I could get that application granted?
Answer to Question One: I might be able to have an “intent to use” application on file before the game is done – it’s just that easy to file for trademark protection. (Tip to readers: The ease of filing for such protection is a reason all of you should consider protecting your call signs, program names, slogans and other important brands by filing applications for federal trademark registrations.)
Answer to Question Two: “slim” and “none”, since – thanks to federal trademark law – I’d probably need the permission of the Harbaugh brothers to trademark something referencing their names.
And that’s before the NFL has its say.
As we all know (at least those of you who have read my Super Bowl®-related posts for the last several years), the NFL has a reputation for ruthlessly enforcing its trademarks relative to the Big Game, even when it doesn’t happen to have any trademarks to enforce. As it turns out, “Harbowl” graphically illustrates this.
Geek that I am, I searched the USPTO database for “Harbowl”. Turns out I wasn’t alone in this thought, but I was about a year too late. Back in February, 2012, Roy Fox of Pendleton, Indiana filed an “intent to use” application for “Harbowl” in conjunction with “hats; t-shirts”. Mr. Fox’s application made it through the initial processing steps. (I’m guessing that the USPTO examining attorney wasn’t a football fan and thus may not have recognized “Harbowl” as a reference to a Harbaugh v. Harbaugh Super Bowl®.)
But then the NFL stepped in.
The NFL and NFL Properties, LLC each filed multiple requests for more time in which to oppose Mr. Fox’s application. Those requests were granted, giving the NFL and NFL Properties, LLC until early November, 2012 to file their objections. (The original due date for objections was in July, 2012). For whatever reason, Mr. Fox abandoned his application for “Harbowl” on October 26, 2012.
I personally don’t really believe that the NFL has a legitimate beef about “Harbowl” because that neologism doesn’t create a likelihood of confusion – the legal test for trademark infringement – with any of the “Super Bowl” trademarks that the NFL owns. (I addressed some of those in last year’s post.) “Harbowl” doesn’t incorporate other NFL trademarks like the Ravens’ or Forty-Niners’ names, logos (or, to be safe, colors), much less make any reference to “Super Bowl”.
Even so, this underscores how aggressive the NFL is when it comes to asserting control over anything that could conceivably be related to the Super Bowl®. (Shades of the “Who Dat” kerfuffle that arose in 2010!) Because of that, all broadcasters should exercise extreme care when it comes to using NFL-trademarked words or logos – including, most obviously, the many uses of Super Bowl® – in any way that makes it appear that you have a connection with, or the endorsement of, the NFL.
That means that you should not promote your contests with the words “Super Bowl” or anything resembling those words. Don’t promote events like game-watching parties. Familiarize yourself with the list of NFL-owned trademarks, which include all team names and logos. You may use those terms on-air, but only for news and information, not commercial or entertainment, purposes. Don’t even accept advertisements from others using the term “Super Bowl” unless you have absolute certainty that the advertiser has a license to use the trademarked term.
(And as long as we’re on the subject, we’re giving you a couple months’ notice that the same applies to “March Madness” when the NCAA basketball tournament starts up in that month. Ditto for most other recurring, high-profile events (e.g., the Oscars®, the Olympics®, etc., etc.))
As you can see from the way that they got right up in Mr. Fox’s grill at the USPTO, the NFL doesn’t mess around. And while his encounter with the NFL probably cost Mr. Fox a mere $275 (that is, the extremely modest filing fee for his application –another reason you should consider applying for protection of your own marks), you might find yourself in a much more expensive predicament. When it comes to trademark infringement claims, the NFL doesn’t just litigate at the USPTO; rather, they’ve shown an affinity for going to big boy court and seeking big time damage awards when it suits their needs.
So, we salute you, Mr. Roy Fox. Not just for your creativity, foresight and entrepreneurial spirit, but also for the relatively inexpensive reminder you’ve given to broadcasters around the country. The take-home lesson here: do NOT promote yourselves, your stations, your events or any of your commercial interests using the words “Super Bowl” or other NFL trademarks unless you have permission from the NFL to do so. You CAN report on the game and/or events (including official NFL events) surrounding the game, but using NFL-registered trademarks for promotional purposes without permission can cause you a world of grief.
And a personal note to Mr. Fox: I hope you put your obvious foresight to profitable use. When you applied for the “Harbowl” mark in February, 2012, the Ravens were around 14-to-1 and the Niners were about 20-to-1 to win the Super Bowl back then. I’m sure the odds of both teams getting to the Big Game would have been astronomically higher, and any of those “prop bets” would have made you more money than selling t-shirts would in any event.
[And now for my annual prediction. This is tough. It’s going to be a great game, and I’m personally torn between the two teams. On the Ravens side, I grew up in Maryland and know that a Ravens Super Bowl win will tick Redskins fans (and Redskins owner Dan Snyder, a megalomaniac in the eyes of many) off to no end, and I love that. On the Niners side, I love SF, having split time between that city and DC for about three years and knowing many people that will be very happy about a Niners win. But San Francisco already celebrated a World Series win in the past few months – their second in three years to boot – and I’m all for spreading the wealth. (Plus I’m not sure the Mission can stand another championship celebration). So you heard it here first: the Swami sees the Ravens over the Niners, 24-21.]