I know it’s weird. Me – me of all people – writing a post about football. When it comes to trademarks, I’m willing to get in the game and talk a bit of sports chatter.
What is so super about the Super Bowl® trademark? If you are the National Football League – quite a lot. If you are a business hoping to piggy back off of the excitement surrounding one of the largest television events each year – there’s nothing super. In fact, it could actually hurt your business.
As the New York Times reported in a story earlier this week, a New Jersey business man and cigar store owner wanted to increase his business during the excitement that would take place down the street. The article points out that the cigar store owner planned on hanging a banner outside his business and offering custom cigars with the Super Bowl® logo. Wisely, the business owner has forgone those plans after learning that the National Football League fiercely protects its trademark in the words “Super Bowl.” The article continues by giving several other examples of people in the New Jersey area wanting to reap some of the economic benefits of having the game in their backyard, but are prohibited from doing so out of fear of ruffling the NFL trademark enforcement division.
A search HERE at the U.S. Trademark Office reveals that the National Football League (NFL) does have a trademark on the phrase “Super Bowl” and has had it since December 1969. A quick search on the internet also reveals many stories of small businesses receiving the dreaded cease and desist letters from the NFL. The New York Times article continues by including a quote from the NFL stating the restrictions on the Super Bowl name. A representative with the NLF stated in the article, ““Without being able to protect it [super bowl name and logo],” he added, “you lose control.” There have been “a handful of instances.”
Now before you go getting upset at the NFL, let’s take a look at it from their perspective, which, outside of a few quotes was not adequately demonstrated in the New York Times article. As the exclusive owner of a trademark the NFL has not only the right, but the absolute obligation to protect its mark. A trademark owner has an affirmative duty to protect the mark against unauthorized uses. As the trademark statute stands now, failure to protect the mark could result in loss of rights in the mark in the future.
Marks that have not been properly policed or protected fall into what the trademark statute calls generic. The last thing a trademark owner wants to hear is that their mark has fallen into the land of the generic. Once that happens there is no going back and the original owner has lost all the time, resources, potential licensing revenue and other rights that go along with owning that trademark. Some examples include Escalator, Thermos, and Laundromat. For an interesting look at marks that have fallen into the land of generic marks read the Business Insider article titled 24 Trademarked Brands That Everyone Uses as Generic Names.
The NFL has invested a lot of time, effort and money into making the Super Bowl® one of the biggest, if not the biggest, sporting event every year. It is estimated that nearly 100 million people will take part by watching the game this upcoming Sunday. And let’s not forget about the commercials. Advertisers and sponsors spend a great deal of money to be associated with the famous trademark. Those advertisers should enjoy some of the exclusivity they purchased and the esteem that goes along with being associated with the mark. While it might seem like un-sportsman like conduct to send cease and desist letters to mom and pop businesses that just want to get in on the excitement of the game, it really is just the NFL doing what it must do to protect their investment in the Super Bowl® trademark.
What do you think about the NFL’s tactics to protect its trademark? What would be some alternatives that the NFL could use and still work with those mom and pop businesses? Take part in the comments below and Stay Tuned In!
If you liked this post, please share it and click the FREE Subscription button above to get more! Follow me on Twitter where I pass along the latest entertainment law, broadcasting and intellectual property news @RyanneDSaucier.