Fall has arrived, which means professional football is in full swing on and off the field. While on-field activities are geared toward physical dominance, victory and relentless pursuit of the Lombardi Trophy, an equally competitive set of battles wages off field in the world of trademarks.
The National Football League (NFL) constitutes 30 teams and one of the strongest brands in the world. Not only do teams protect their names — BEARS, BUCCANEERS, PACKERS — but also their slogans – WE ARE ALL PATRIOTS, AMERICA’S TEAM, and of course logos. The 2015 football season, full of on-field excitement and drama, also brings two trademark cases that deserve mention.
SUPERB OWL confusing with SUPER BOWL?
First, a small Arizona non-profit company has sought registration of the trademark SUPERB OWL for running races. The race is a night time race and following this nocturnal theme, some racers wear owl costumes and participant award medals carry the phrase SUPERB OWL. In July, the NFL challenged registration of this trademark arguing it is confusingly similar to its own SUPER BOWL trademarks. While there are a number of differences between the marks in sound and impression as well as in terms of the services — worldwide professional football championship versus 5k running race to benefit the arts – the NFL is a very deep pocket and seasoned litigator who may just run the clock down against this non-profit who is seeking funding to fight this case via Kickstarter. However the case turns out, the takeaway is that it appears the NFL will challenge anyone who uses a mark remotely similar to SUPER BOWL. Thus, businesses are advised to choose their BOWLS or OWLS carefully.
REDSKINS case nearing Sudden Death
Second, the seemingly never ending REDSKINS saga appears headed to the Appellate Courts and, possibly, the Supreme Court. Beginning in the 1990’s, groups began challenging registration of the REDSKINS trademark as disparaging toward Native Americans. This movement ultimately led to dozens of schools changing team nicknames to move away from names that referenced Native American themes (including the Author’s Miami University, who changed from REDSKINS to REDHAWKS in 1997). The NFL and its Washington franchise, however, bucked this trend and have fought tooth and nail to maintain the REDSKINS trademark.
Last year, a challenge to the REDSKINS mark succeeded in the USPTO Trademark Trial and Appeal Board (“TTAB”). The TTAB cancelled the REDSKINS trademark on the grounds that it was disparaging. After this setback, the NFL filed suit in Federal Court arguing the TTAB decision was wrongly decided. In July, however, a Federal District Court in Virginia affirmed the TTAB decision, agreeing that REDSKINS is indeed disparaging. The NFL has indicated it will appeal this decision.
This ongoing, nearly 20-year battle involving the REDSKINS mark is like a game stuck in overtime, each team fighting for every yard, giving nothing to chance. Though the NFL is on the back foot right now, it has, literally, challenged and sought review of the decision on the field. This case could easily come to sudden death in the Supreme Court by the end of the football season.
Our blog will provide periodic updates on these, and other, relevant football-related trademark cases.