The biggest scandal this time of the year tends to be the NFL’s heavy-handed efforts to protect trademarks, even those it doesn’t own.
It’s no secret that we here in the CommLawBlog bunker don’t fully approve of the NFL’s aggressive efforts to protect trademarks that the NFL doesn’t happen to own. Who can forget the famous “Who Dat” contretemps in 2010? And how about the NFL’s successful effort to squelch an average Joe’s (actually, an average Roy’s) attempt to register the term “Harbowl” in 2013. (Not that we’re bitter or anything, but it was CommLawBlog, not ESPN, that unearthed that particular tidbit, although you wouldn’t have known that from ESPN’s reporting.) We didn’t see a similar effort last year when somebody tried to register “Bong Bowl”, but that may have been because the applicant pulled the plug on the application before it got on the NFL’s radar.
This year, if anybody’s looking for a catchy alternative name for this year’s Super Bowl®, how about the “Scandal Bowl”? After all, it wasn’t but a few hours after the Patriots beat the Colts that ESPN began reporting that the Pats were being investigated for doctoring the game balls. (We take no credit for uncovering that particular story; credit apparently goes to Station WTHR in Indianapolis, which the ESPN report acknowledged.) Of course, it’s not like this is the first time the Pats have been charged with cheating during the Belichick era (cough, “Spygate”, cough).
And on the other side of the field will be the Seahawks, whose head coach, Pete Carroll, high-tailed it out of Southern California just before penalties were levied against the program he coached at USC.
And how particularly appropriate would “Scandal Bowl” be this year, when the NFL has been awash with serious bad press. (Concussions, anyone? Or how about Messrs. Rice or Peterson or Hernandez, among others?)
So “Scandal Bowl” might make sense like “Bong Bowl” made sense last year (when the two teams happened to be from states that legalized marijuana use.)
I just checked the USPTO and, so far at least, it looks like no one has tried to register “Scandalbowl” or any other combination of “Scandal” and Bowl” as a trademark in conjunction with any goods and services. So, should you do it?
Depends on your tolerance for risk.
As we have reported every January for years now, the term “Super Bowl”® – and a surprising number of other “super” terms (think “Super Sunday”®, “Super Bowl Concert Series”®, “Super Bowl of Golf”® – oops, that last one is registered to the National Football League Alumni, Inc.) – have been registered as trademarks by the NFL. That means that, while those terms can be used in certain limited contexts, as a general rule they may not be used in any commercial promotions. No advertising of your own events, no advertising of client-conducted events, sales, promotions, no contests, no nothing. Nada. Zip. Zilch.
And while the NFL may not happen to own other trademarks, that hasn’t stopped it from taking steps to, um, discourage anybody else from using them, as we learned via the “Who Dat” and “Harbowl” incidents. It appears that the NFL would like to lay claim to just about any expression which includes either “Super” or “Bowl” and which may be used in connection with some football-related event. Would the NFL go so far as to try to prevent registration of “Scandal Bowl”? Who knows? It would seem that the league wouldn’t want to embrace a name that might suggest misbehavior by its two premier teams, but the league’s seemingly fanatical concern about “[Fill in the blank] Bowl” terminology could override any reticence. In any event, it might be fun to see what the league would do if a “Scandal Bowl” trademark application were to be filed.
But that’s all hypothetical. More importantly, when can a broadcaster safely use any of the terms the NFL already has registered?
In bona fide news stories before and after the game. But you can’t use them in any way that might suggest an official connection between you and either the No Fun League or any of the teams involved. And you can’t use them in any way which creates the impression that any of those entities endorses your station (unless, of course, you have cut a deal with the NFL or one of its teams that expressly permits you to do so).
You can use the term “the Big Game” because the NFL doesn’t happen to own that mark (although it did indeed try to tie it down once).
[Let’s take a quick break from trademark niceties so that I can assume my role as the Swami and give my annual prediction for the game. Please remember this is for entertainment purposes only and should not be relied upon any way or connote my endorsement of gambling. I understand that there is something called “the spread” which indicates that the game is basically a “pick ’em” (meaning neither team is favored). I say go with the mad genius and the Pats. Final score will be New England 27 Seattle 21]
As always, take that pick with a grain of salt, since football isn’t really my game. You’re better off coming back to me for my thoughts on the winner of the next FIFA World Cup or UEFA Champions League. Just know that both of those are heavily protected trademarks as well…
And, since it’s right around the corner, let’s talk “March Madness”, too. That’s a registered trademark of the NCAA so similar rules apply, even if the NCAA, when compared to the NFL is a relatively scandal-free, upstanding organiz…oops – nevermind.