If I say the words “super” and “bowl” together as one term, will the NFL sue me?

The seemingly short-sighted and monopolistic National Football League (“NFL”) has done itself a disservice for limiting the commercial use of the term “Super Bowl.”  Before the NFL regularly seemed to enforce its copyright and/or trademark moratorium on using the “Super Bowl” name in commercial speech and discussions, during the weeks leading up to the “Super Bowl,” that game was all most anyone talked about prior to the football game.  Now, with the NFL’s hard-line copyright/trademark agenda, no one even mentions the “Super Bowl” game is nearing game time.   

For the most part, the game is no longer mentioned on radio airwaves, commercials, or anywhere else for that matter - other than news and sports broadcasts.  If the game is mentioned on the radio, it’s merely spoken of as “the big game,” or the like.  Mostly because broadcasters fear having to pay royalties for mentioning the event by its “Super Bowl” name.  (See:  “Is Super Bowl Protected by Trademark or Copyright Law? Try Both.”; located at: https://www.broadcastlawblog.com/2012/01/articles/is-super-bowl-protected-by-trademark-or-copyright-law-try-both/ .  Also see:  “Be careful with the phrase 'Super Bowl' in marketing; NFL has the trademark”; located at: https://www.startribune.com/be-careful-with-the-phrase-super-bowl-in-marketing-campaigns-nfl-has-the-trademark/446916483/ . Finally, see:  “Super Bowl Advertising Guidelines: The Do’s And Don’ts for Marketers”, located at: https://www.themotherhood.com/super-bowl-advertising-guidelines/.)

I understand the legalities of trademark law, both common law and the Lanham Act as well.  (See:  “U.S. Trademark Law: Rules of Practice & Federal Statute”, located at: https://www.uspto.gov/trademarks/laws .  Also maybe see: “U.S. Army Department Prepares for War with the “VEGAS GOLDEN KNIGHTS” – a Brief Note.”, located at: https://engineeringandcommerce.blogspot.com/2018/03/us-army-department-prepares-for-war.html .)  I likely even understand much of copyright law and copyright protection, mostly anyhow.  Of course, I also basically understand the concepts of “fair use” (See: “Fact Sheet: Protecting a Trademark. Fair Use of Trademarks”, located at: https://www.inta.org/fact-sheets/fair-use-of-trademarks-intended-for-a-non-legal-audience/ .  Also see: “More Information on Fair Use”, https://www.copyright.gov/fair-use/more-info.html .)  And. I maybe even understand any other “newsworthiness exception” – to whatever extent these doctrines might apply to this noncommercial blog topic.  

But in spite of all those legal protections, it is my opinion that the NFL has done itself no favors by stifling the free advertising it would otherwise receive when anyone would be free to relay pre-game thoughts and to address those thoughts by the game’s “Super Bowl” name.  Compound this lack of free advertisements by our awareness that the NFL may not have the unbridled clout with the nation’s populace as it once enjoyed.  That popularity with the nation was, of course, prior to the NFL introducing politics into its arenas as a precursor to the football game – with the millionaire football players kneeling and protesting against our nation during the obligatory pre-game rendition of the national anthem, for whatever the reason of the protests. 

Regardless, in my opinion, the NFL is still in the entertainment business and surely generates more dollars for its offerings by having more viewers and more advertising “buzz,” (so to speak) which typically leads to more viewers.  I mean…, the NFL is not in the business of selling “Kleenex” or “Aspirin” or novels wherein others using their products’ names cuts-into the original trademark/copyright owner’s financial bottom line or turf (pardon the lame pun, if you would).  There is still only one “Super Bowl,” in other words, after all.  Unless maybe we include the likes of Massachusetts High School football.  (See:  http://www.mhsfca.net/super-bowl-history.html .)  Then again, maybe the mighty NFL is not fearful of anyone confusing the Massachusetts State High School football championship for the NFL’s “Super Bowl.” 

Ironically, I must wonder if I am creating any personal liability with the use of the “Super Bowl” term here in this blog entry.  So, like…, maybe the NFL will sue me?   Like…., not that I really care, of course.  ‘Cause I ain't paying the NFL any royalties for using the term anyhow.  Then again, maybe the NFL will go after Google and force it to remove this blog entry.  (Google owns this blogspot/blogger platform.  Unless maybe I can purchase my blog domain names, as Google once offered long ago.)  And thereby, such thoughts and fears of liability highlight the unseemliness of the whole matter concerning the NFL’s copyright/trademark issue of forbidding the use of the “Super Bowl” term.  Maybe it is an example of such, anyhow.

The NFL’s effort to get more money or protect their copyright/trademark – or however the NFL rationalizes it all, has only worked to the detriment of all concerned if popularity of the event is what they actually seek.  In the modern world, any attempts to prevent “buzz” or talk of one’s product is only to the detriment of the entity offering the product.  Or at least so the matter seems in the case of the NFL and use of the term “Super Bowl.”

 

Adam Trotter

(February 3, 2021.  A few days before Super Bowl ?̅ ?̅ - whatever number I don’t know because nothing about the game is ever mentioned on the radio stations to which I listen -  with the "big game" being between quarterback Tom Brady’s new team, the Tampa Bay Buccaneers, and the Kansas City Chiefs.)

U.S. Army Department Prepares for War with the “VEGAS GOLDEN KNIGHTS” – a Brief Note.

There seems to be no end to the interesting news relevant to the newest expansion team in the National Hockey League, the “Vegas Golden Knights.”  Not the least of which is that the team likely will be the most successful first-year expansion team in sports history.[1]  “The Golden Knights are trying to become the first team in North American professional sports to finish first in its division in its inaugural season [minus some technical exceptions].”[2]

While Vegas appears to be betting on Vegas, the Vegas Golden Knights team could lose in another venue, the U.S.Patent and Trademark Office.  Because, it is with the PTO where the team could lose the rights to its name, due to the Army Department’s opposition. 

There is no shortage of stories telling of how the team decided on its name.  However, the following seems to sum it up nicely:

“The franchise is owned by Black Knight Sports and Entertainment LLC, run by Bill Foley. Mr. Foley’s interest in Knights apparently stems from his time attending West Point military academy.  West Point’s sports teams are known as the Black Knights.   Foley initially wanted to call the new hockey team the Black Knights but received push back from West Point, according to the Army Times.  Knights also appear in other Army teams – the U.S. Army Parachute Team is called the "Golden Knights,” and it appears Mr. Foley next moved his choice for a team name to the Golden Knights. “[3]

(From here the reported stories somewhat diverge as to what actually transpired leading up to the final decision on the hockey team’s name.[4])

The Army, for its part, does not seem amused with Mr. Foley’s choice of names for his team, and the Army appears to be mobilizing for war.[5] The Army Department has filed a Notice of Opposition to the “GOLDEN KNIGHTS” name with the PTO.[6]  The Army Dept. claims: use of the color scheme since 1919 (incl. current USMA hockey team); both parties are in the same field (sporting events); both use “GOLDEN KNIGHTS” (Army since 1962/67).  All amounting to confusion and suggesting a false connection and dilution of its common-law mark (trademark).[7]  Allying alongside the Army appears to be none other than the PTO itself – albeit in defense of College of Saint Rose in Albany, NY (owner of “GOLDEN KNIGHTS THE COLLEGE OF SAINT ROSE”).[8]  

Given the success of the Vegas Golden Knights team, the City of Las Vegas – and many hockey fans – appear to be bracing for battle.  Because, the City of Las Vegas appears ready to give the Army Dept. a middle-finger salute.[9]  The team notes, “no one has showed up at our hockey games complaining that they were expecting to see an acrobatic sky-diving team.”[10]

For now, calmer heads have prevailed, according to Trademarkology, as the parties have decided to try to negotiate a settlement.[11]  But this blogger is betting on the Vegas Golden Knights to win in the end, as this blogging consumer never experienced any such confusion in the matter until reading the Army Department’s Opposition.

Adam Trotter  (March, 2018) 

PS:  It's lookin' to be a good fight, if logos could talk!

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[1] “Vegas Has The Best Expansion Team In The History Of Pro Sports, And It’s Not Close”, By N. Paine, FiveThirtyEight, located at:  https://fivethirtyeight.com/features/vegas-has-the-best-expansion-team-in-the-history-of-pro-sports-and-its-not-close/, last accessed Mar. 26 2018. 

[2] “Golden Knights first to 100 points in inaugural NHL season - Vegas trying to become second debut team … to win division”, NHL.com, located at: https://www.nhl.com/news/vegas-first-to-100-points-in-inaugural-nhl-season/c-297239732, last accessed Mar. 26 2018. (See poss. Exceptions: ‘50 Browns, ‘66-67 Flyers, ‘76 Nuggets.)

[3] “NHL Team Trademark Gets Iced”, by Guest Blogger on Dec. 12 2016, Trademarkology, located at: https://www.trademarkologist.com/2016/12/nhl-team-trademark-gets-iced/, last accessed Mar. 26 2018.

[4] See, for example: “Vegas Golden Knights, Named to Avoid Trademark Dispute, Face Trademark Dispute”,  by M. Stevens, NY Times, Jan. 12 2018, located at: https://www.nytimes.com/2018/01/12/sports/hockey/vegas-golden-knights-army-trademark.html, last accessed Mar. 28 2018.

[5] See for example: “Courting War – in a Court of Law”; Poetry and [Would-Be] Proverbs, by A.V. Trotter (blog), located at: http://poetrybyadamvernontrotter.blogspot.com/2018/03/courting-war-in-court-of-law.html, last accessed Mar. 28 2018.

[6] “The renowned U.S. Army Parachute Team has been nicknamed the “Golden Knights” since 1962 [or ’67?] and also uses a “yellow/gold, black, and white” color scheme.” From: “The Fight Over the “Golden Knights””, By R. Dix Bishop, Jan. 30 2018, Trademarkology, located at: https://www.trademarkologist.com/2018/01/6354/#respond, last accessed Mar. 26 2018.  Also, the Army’s filed Objection can be seen at: http://ttabvue.uspto.gov/ttabvue/v?pno=91238886&pty=OPP&eno=1.

[7] The Army claims Vegas violates Lanham Act Section 2(a) (falsely suggest a connection with … institutions, … or national symbols), and 2(d) (false connection … to cause confusion…). 15 USC 1052(a) and (d); and Section 13 of Lanham Act (likely to cause dilution by blurring or dilution by tarnishment under section 1125(c) [false designation of origin]). 15 USC 1063.

[8] See FN 6, Trademarkology.

[9] “Don’t bet on a Golden Knights name change in trademark case”, By A. Candee & J. Granger, Jan. 16 2018, Las Vegas Sun, located at: https://lasvegassun.com/news/2018/jan/16/dont-bet-on-a-golden-knights-name-change-trademark/, last accessed Mar. 26 2018.

[10] Id.  See also: “Sleekcraft Factors,” from: AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979).

[11] For the Army: “[R]ecent filings with the TTAB reflect that the parties are actively engaged in settlement negotiations and have agreed to suspend all deadlines for 90 days.” For Saint Rose: “The Vegas Golden Knights responded to the office actions in June 2017; however, final disposition has been stalled as the Vegas Golden Knights’ applications have been suspended pending disposition of earlier filed applications.”  See FN 6.