Our annual reminder about NFL trademark enforcement
This year’s Roy Fox “I Coulda Been Somebody” Award goes to (drum roll, please) – Joel Douglas Rodgers of Tampa, Florida. Our readers will recall that, last year about this time, I reported that one Roy Fox had applied for a trademark registration covering the mark “Harbowl”, a mark which – had he obtained it – could have been a gold mine for him once the teams for last year’s Super Bowl® were set. (I’m still waiting for ESPN to call to apologize for not giving me and CommLawBlog our due credit for breaking the story.) Both of last year’s teams – the Niners and the Ravens, for those of you with short-term memory about such things – were coached by gentlemen named Harbaugh, so the desirability and commercial potential of “Harbowl” was obvious.
Also as I reported, though, the NFL made a bunch of threatening noise about Mr. Fox’s application and thereby convinced him to abandon it. My point was to remind one and all that the NFL is super-aggressive when it comes to asserting control over anything that could conceivably be related to the Super Bowl®. (Don’t forget that R-in-a-circle!) Because of the NFL’s strong-arm approach, we annually warn folks to avoid using the term “Super Bowl®” in any way that might likely create an impression that their product or event is authorized or endorsed by the NFL. (Check out a collection of our Big Game-related posts here.)
So who is Joel Douglas Rodgers?
It turns out that, in June, 2012, Mr. Rodgers applied to register the trademark “Bong Bowl”. So what? So this: The teams in this year’s Super Bowl® – the Seattle Seahawks and the Denver Broncos – both happen to hail from states which have recently legalized marijuana. As a result, multiple drug-related nicknames for the big event have been suggested by members of the Great Unwashed: Weed Bowl, Stoner Bowl, Reefer Bowl, Super Oobie Doobie Bowl, Smoke-a-Bowl, etc., etc. You get the idea.
We don’t know whether his application had anything at all to do with the NFL’s premier event. But “Bong Bowl” could have been a major league money-maker, particularly since Mr. Rodgers, in his application, proposed to use the term on “athletic apparel”, including sweat shirts (hooded and otherwise), tee shirts, hats, caps and other such merch. Who wouldn’t be proud to sport a Bong Bowl hoodie to the nearest sports bar on Game Day?
The good news is that, at least as far as USPTO records show, the NFL didn’t oppose Rodgers’s application, maybe because the possibility of a Dope Bowl pitting two weed-approving venues against each other wasn’t on the NFL’s radar back in 2012.
The bad news is that that possibility apparently wasn’t on Rodgers’s radar, either: he abandoned his application in August, 2013, just before the current season cranked up.
Had he toughed it out and then tried to market “Bong Bowl” merchandise, the NFL would have been in a difficult spot.
On the one hand, in view of its historical tendency to bogart any and all terms even mildly reflective of the Super Bowl®, the NFL might have been all over Rodgers like a cheap suit, insisting he back off and let the NFL reap the profits.
But on the other, the NFL’s substance abuse policy prohibits pot use, so the League might not have wanted to get hooked up with a product that could be seen as promoting just such use. (That may also be why the National Anthem at this year’s Super Bowl® is being sung by opera superstar Renée Fleming and not the Doobie Brothers, and why the half-time entertainment is Bruno Mars and not James Blunt or Snoop Dogg/Lion, joined by a hologram of Bob Marley, singing the scat improvisation from Frank Sinatra’s “Strangers in the Night”.)
In any event, our message this year is the same as last year: Don’t be a dope and risk having your hard earned revenues go to pot. We don’t even have to get into the weeds of trademark law to avoid making a hash of this situation. Before you use the words “Super Bowl”, any NFL team names, any NFL team logos, or any NFL trademarks of any kind – or anything resembling them – between now and the game, ask yourself this one question: Am I using it in a way that is likely to create an impression that my product or event is authorized or endorsed by the NFL?
If you’re confident that your use is more rationally related to reporting on or about the game, you should be OK – but understand that the NFL is likely to be skeptical about your claim, so be “super” sure.
Of course, everything – including those too-cute variations on “Super Bowl” – has to be analyzed in its own context, so you may want to discuss any potential uses with your attorney beforehand. An understanding of how the law might apply to any ideas you may come up with should help. We’re just trying to help you stay on the high side of the law.
And remember, it’s not just the NFL you have to be worried about. Every year, people get tripped up by their unauthorized use of “March Madness”. Every two years it’s “Olympics” (most often by simply throwing “-lympics” on just about anything). And every four – including this year – FIFA gets pretty darned protective about “World Cup”.
So when it comes to ads or promotions that might violate these strongly protected marks, take a tip from Nancy Reagan: Just Say No!
P.S. – Because I’m the Swami and I make predictions, I’ll go ahead and provide my annual prognostication about “The Big Game”. My Gold Medal prediction for the Meadowlands: Denver 37, Seattle 24.
P.P.S. – You should know that my record in picking NFL games this season was pretty mediocre (about 48% correct). I haven’t done much better in the post-season, boasting a 4-5-1 record. But last year I accurately picked the winner and predicted the three-point spread right on the button. And if you’ve ever been lucky enough to hit the FHH home page at the right time, you’ll know I’ve correctly picked the winners of the last three World Cup tournaments. Bonus unofficial prediction: with the caveat that it’s early, things can change and I have to see just how the various teams look closer to the tournament in Brazil, I’m leaning toward Argentina.