NFL Tightens the Screws

As most people know, the NFL doesn't want you to use the word "Superbowl" when hosting a party, sale, event, etc, and they aggressively enforce their trademark on this term.  In response, since all the country does in fact have parties, sales, events, etc. associated with the Superbowl, folks have adopted the euphemism 'the big game" in their communications. 

I observed that this not only pointed out some of the silliness in our intellectual property laws, but also was counter-productive for the NFL -- shouldn't they want people talking about and holding events for the Superbowl?  I suggested a simple licensing program that would raise a little money and probably work better for everyone:

The NFL needs to offer a one time use license each year for a bar or
other establishment to hold a Superbowl party and actually use
Superbowl in the promotion.  The license would of course be
non-exclusive, and would carry a myriad of restrictions on how you use
the name, etc.   The license could be purchased for a price that would
be cheap for a business, maybe $200, and could be purchased right over
the web.  It would actually be easier, I think, to go after violators
because the NFL could point to the existence of a legal licensing
program the violator could easily have participated in.  I would think
they could easily bring in a couple of million dollars, not to mention
saving them enforcement money and PR headaches.

The NFL has decided to go in a different direction.  It is trying to trademark the term "the big game" so that term can't be used either (HT Overlawyered).  I particularly liked this from the application:

Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "GAME" APART FROM THE MARK AS SHOWN

Jeez, why not?  Who at the NFL is sleeping on the job here?

Well, that's what I get as a libertarian for trying to work within the system to make things incrementally better rather than going on one of my usual idealistic rants.  So I officially withdraw my previous suggestion in favor of a new one:  Trademarks should, at most, only give one the protection from someone else labeling a similar product with the trademarked name.  By trademarking Jif, P&G gets protection from another company selling peanut butter under the same name in the US.  However, any other use of Jif in communication should be entirely legal.  If I communicate to people that I am having Jif party, that communication is protected under the first amendment and P&G can't shut down my party.  If I want to put out a poster and sell it with Jif peanut butter labels and how they have changed over the past 100 years, I should have the right to do so.   Ditto if I want to print bumper stickers that say "Jif sucks."

Similarly, the NFL can be legally protected from having another group host a football game (and if I am in a generous mood, maybe any type of sporting event) and calling it the Superbowl.  And that is it.  They should not be granted an exclusive government monopoly to use the word Superbowl, or more ludicrously, "the big game":

posters, calendars, trading cards, series
of non-fiction books relating to football; magazines relating to
football, newsletters relating to football,notepads, stickers, bumper
stickers, paper pennants; greeting cards; printed tickets to sports
games and events; pens and pencils, note paper, wrapping paper, paper
table cloths, paper napkins, printed paper party invitations, paper
gift cards; paper party decorations, collectible cards; collectible
card and memorabilia holders, souvenir programs for sports events,...toys and sporting goods, namely, plush toys, stuffed toy
animals, play figures, golf balls, footballs, sport balls, toy banks,
playing cards, Christmas tree ornaments...Men's, women's and children's apparel, namely T-shirts, fleece tops, caps, headwear

And don't even get me started on Pat Riley's "Threepeat."

  • http://www.humanadvancement.net/blog Kyle Bennett

    It's one thing to trademark a label, the "Super Bowl", but trying to trademark the new label that arose to describe their game can only be seen as trying to trademark any reference at all to the event. In other words, they're trying to trademark the concept itself.

  • Oski

    The California-Stanford annual football game has only been called "The Big Game" for over a hundred years. I guess the NFL gets the rights.

  • jimothy

    How long before the NFL issues cease-and-desist letters to people who merely blog about...this...um...sporting event...or what to call it?

  • harry

    This is getting ridiculous. "The Big Game" doesnt refer to anything, Why the hell dont we just copyright the entire English language, then everybody can just shutup for fear of being sued.

  • http://users.bestweb.net/~robgood Bob Goodman

    The first I heard of this type of attempt at using trademark was a hotel in Detroit's being threatened by Parker Bros. for advertising on its marquee & elsewhere a Monopoly tournament that they host. This seems a more strained use of trademark than the Super Bowl affair, because it's not as if Parker charges people to see other people playing Monopoly. Their authentic equipment was in fact in use in the tournament. Plus, it seems idiotic that Parker would want to throw away the free publicity that they no longer get now that it's been renamed the Monotony Tournament.

  • Deirdre

    Oh people, get over it. The Humongous Sporting Event XLII will be here before you know it and this will all be forgotten.

  • http://www.schliefkevision.com Michael S

    The NFL would never sell licenses that you refer to in an attempt to keep from diluting the strength of their 'official' sponsors. If Coke, Miller, and Tostitos are the official soda, beer and chip of the Super Bowl, and paid handsomely to put the logo on their packages and cans, they'd be upset if Bud could put up the $200 fee for ever bar advertising 'Super Bowl' with a gigantic Bud ad.

    Of course, trademarking the 'Big Game' is ridiculous. But then again, so are lawyers.

  • http://www.myspace.com/zombieclaus Zombie Claus

    Well I have news for the NFL it doesn't actually matter what they copyright because at the end of the day whoever holds a party is going to call it a superbowl party. They are not going to say come over and watch this game with me if it's a superbowl party they will prefer to it as a Superbowl party. Same thing with the big game, i am not going to take the time to find other words, for the big game when my team is in fact playing a big game...

    this is pretty pathetic...

  • damaged justice

    I hate football, but I'd host a Superbowl party if the NFL promise to sue me.

  • http://www.risingconviction.com Bryan

    Wow, that is really, really stupid from a branding perspective. It's like if Kleenex got upset about their name being synonymous with tissues, etc.

  • stockguru

    FYI Procter and Gamble sold Jif to Smuckers a few years back. Procter doesn't have a say.

  • http://triticale.mu.nu triticale

    Simple solution. Every tavern and partygiver in the country can refrain from violating the NFL's copyright by not paying any attention whatsoever to the Humunguous Sporting Event. That should make them happy.