Super-Bull – 2014 edition

I’m posting this year’s Super Bull post early because it seems that companies who are not official sponsors of “the Big Game”  (that’s the Super Bowl if you didn’t know) are getting an early start on publishing cute references to the Super Bowl.

I won’t re-hash the legal issues and ridiculousness of it all, you can find that on many other blogs, including this one:

So, I’ll just present this year’s example, brought to you by my Dad, who received this e-mail from PayPal:

You really could name it if you wanted to...
You really could name it if you wanted to…

Ok, ha-ha.  But I wonder if companies are just having fun with the absurdity of it at this point.  Does PayPal honestly believe that it cannot use the Super Bowl mark descriptively?  When people run contests to win an Apple iPad, they don’t feel compelled to advertise it with, “Win a device made by a company that’s named after a fruit and makes a rectangular thing with a screen and buttons.”

Just make a conspicuous disclaimer that the contest isn’t endorsed, sponsored, approved, blessed, baptized, or otherwise supported by the NFL.  Then, let the catharsis begin – just call it the damn Super Bowl.  [CONSPICUOUS DISCLAIMER – that’s not legal advice.  If you do that, the NFL may sue you.]

Even the fine-print rules of the contest don’t call the prize for what it is – a trip to the Super Bowl:

Pssssst....  you win a trip to the Super Bowl.  That's what is happening on that day, time, and location.
Pssssst…. you win a trip to the Super Bowl. That’s what is happening on that day, time, and location.

And don’t even get me started on the NFL’s attempt to register “THE BIG GAME” as a trademark a few years ago.  It later abandoned the application, but in doing so it admitted that it was trying to prevent “ambush marketing” of the Super Bowl by using “The Big Game” instead.  With that logic, expect a trademark application for “The game we cannot name” to be in the works…  Intellectual property attorneys are usually safe from lawyer jokes, but not in this case.

National FirstAmendment Losers.

Super Bull

Chipotle ad as found in story.

It’s that time of year again.  News stations and retailers will start advertising and discussing (shhhh, don’t say it too loudly…) “the big game.”  Careful!!!!  I know what you’re thinking, but, don’t. say. “Super Bowl.”  That there is a genuine registered trademark of the National Football League, and may the stench of 1,000 jockstraps plague your nostrils should you dare to say “Super Bowl” in your advertisement for guacamole dip and pizza.

The NFL is a notorious trademark bully, and it has managed to fool the public into believing that there is no fair use of the trademark “Super Bowl.”  Ordinarily, it would be perfectly within a retailers rights to say something like:  “Need a great deal on pizzas for your Super Bowl party?  Well, place an advance order with us the day before the game, and we’ll deliver your pizzas before kickoff…”  While that may be a “commercial” use in that the trademark is being used in an advertisement, there is nothing in that ad to suggest that the pizza place is connected with the Super Bowl in any way.  Consumers will not be confused as to whether or not the pizza is officially sponsored by the NFL.  Yet, due to the NFL’s quest to sign up “official sponsors” for everything from pizza to TV sets, the League has bullied what would likely be fair uses of “Super Bowl” out of existence.

The NFL as a trademark bully is nothing new, and I wasn’t even going to blog about it this year.  However, I found out about another interesting trademark issue related to this year’s “big game.”  (H/T mom).

While it’s not enough for me to shed a tear for the NFL, last year an enterprising citizen named Roy Fox decided to seek registration for HARBOWL and HARBAUGH BOWL on the off chance that the two Harbaugh head coaches would face each other in this February’s Super Bowl, er, big game, uh Big Game….  And wouldn’t you know it, that happened.  The Ravens and 49’ers are both coached by Harbaughs.

There is one major problem with Mr. Fox’s foxy trademark speculation.  For trademarks that refer to a living individual, the applicant must include a statement that  the person or persons referred to in the mark have consented to their name(s) being registered.  (See my post regarding the TRAYVON MARTIN applications for more on personal names in trademarks.)  Amazingly, the Examining Attorney who was responsible for the HARBOWL and HARBAUGH BOWL applications did not inquire into whether or not the marks referred to living individuals, and the applicant, Mr. Fox, didn’t disclose that fact either.  The applications may have proceeded to registration if it wasn’t for the NFL stepping in and pressuring Mr. Fox to be a good sport and immediately cease and desist before being sued to within 4th-and-inches of bankruptcy.

So, shame on Mr. Fox for “trademark-squatting,” shame on the USPTO for not inquiring about the “living individual” consent issue, and shame on the NFL for continuing it’s bowlshit tactics.


(Go Ravens!  Relishing the thought of Ray Lewis sprawled out at mid-field in tears while melodramatically and megalomaniacally proclaiming that God took a break from the rest of His general duties to help the Ravens become the Divine Winners of the Big Game.)