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I’ll let you all in on a little secret: I love pickles. Yes, let that statement spawn a million jokes in the comments; I don’t care. Pickles are great and the fresher the better. I began gardening specifically so that I could grow cucumbers, garlic, onion, and dill, just so I could make my own at home. And, because I investigate pickle brines the way a sommelier inspects a glass of red zinfandel from a freshly tapped cask, I’ve been to my share of pickle festivals.
So perhaps I’m in a slightly protective posture having come across an article about how one pickle festival in Canada, the Downtown Brandon International Pickle Fest, had to rebrand under threat from Picklefest Canada, which somehow has a trademark on the term “Pickle Fest”.
Aly Wowchuk, who is one of the organizers, said the trademark issue forced a name change — but not a change in spirit.
“It’s the same event, we have the same heart and soul, it just has a different name,” she told the Sun. “We were not sued … we received an email on behalf of Picklefest Canada’s lawyer about the use of ‘Pickle Fest.’ There was a lot of back and forth between lawyers about the use of the name, but ultimately, it was easier for us to move forward and change the name of the Brandon Pickle Fest event.”
This is the outcome of a point we’ve made for years and years: Trademark bullying happens because it generally works. And this is trademark bullying. As in the States, Canadian trademark law does include prohibitions on trademarking descriptive marks. Picklefest Canada is an organization with a trademark on its name and logo and it primarily, you guessed it, puts on pickle festivals. To that end, its trademark rights ought to be extremely limited. Limited, I would say, to its use of the term in overall branding and marketing iconography, as that can be described as original and creative.
But the idea that such a trademark could be wielded to prevent other people, groups, or municipalities from putting on their own pickle fests is plainly at odds with how trademarks are supposed to work. But when a small entity is bullied by a larger one, they often feel they have no choice but to rebrand.
Wowchuk said the new name, Brandon Brine Bash, was chosen in part to stand out in an increasingly crowded field of pickle-themed events.
“With the popularity of pickle festivals across Canada and internationally, almost every variation of ‘pickle party’ or ‘pickle palooza’ has been used,” she said. “We wanted something unique that included Brandon and was easy to find.”
The rebrand also required updates to the festival’s logo, created by local artist Alexander Matheson. While the iconic pickle design has been retained and modernized, references to “Pickle Fest” have been removed.
It’s too bad that a simple festival to celebrate one of man’s greatest inventions has to devolve in overly protective intellectual property bullshit. And it’s equally too bad that nobody has yet stood up to Big Pickle to get this nonsense trademark cancelled.
Filed Under: canada, picklefest, pickles, trademark
Companies: brandon brine bash, pickle fest, picklefest, picklefest canada
A little over a year ago, we wrote about a fairly silly lawsuit filed against Netflix (and Warner Bros.) by Pepperdine University in California for trademark infringement. At issue is the Netflix show Running Point, which is a fictionalized story of a female executive thrust into ownership of a professional basketball team, inspired by the Lakers’ Jeannie Buss, who is also an Executive Producer on the show. The show’s fictional team, which is supposed to be a reference to the NBA’s Los Angeles Lakers, is called “The Waves”. Pepperdine’s sports teams are also called “The Waves”, which the school claimed made all of this trademark infringement.
They were wrong about that, as we said in the previous post. Creative works are given wide latitude in trademark law, specifically in that the Rogers test typically applies. Even in the aftermath of the Supreme Court’s terrible ruling on parody in the case of the Bad Spaniels and Jack Daniels lawsuit, this was always a situation in which the Rogers test would definitely apply. Specifically, SCOTUS’ decision that Rogers doesn’t apply when the offending trademark is used as a source identifier, because we’re talking about a fictional team used in a wider work of fiction, meaning the use isn’t an identifier or any source.
Netflix and Warner petitioned for dismissal for those very reasons and the now the court has agreed and the suit has been dismissed.
U.S. District Judge Cynthia Valenzuela said on Tuesday , opens new tab that the fictional Los Angeles Waves basketball team in “Running Point” did not violate the Malibu, California, school’s rights because the show did not use the “Waves” name and logo as trademarks.
The ruling goes into much more detail, of course. It very specifically examines whether the Rogers test applies, deciding it does based on the usage. For example:
Here, Plaintiff fails to allege that the Waves mark was used by Defendants to exploit the success of Plaintiff’s sports teams or to create an association between the Running Point series and Pepperdine’s teams. Rather, at most, the FAC shows that the Waves mark is “immediately recognized” to identify the Running Point series, and that its use is synonymous with the series. These allegations, which Plaintiff concludes show that the Waves mark is used to “identify the show” are still not sufficient to show that the Waves mark was used as a designation of source for the series. Plaintiff’s repeated use of the words “identify” and “source-identification” do not actually show how the Waves mark was used to identify the source of the series. Rather, here, Defendants clearly claim to be the source of the series.
Finally, the Court is not persuaded by Plaintiff’s arguments regarding the marketing of the show or Defendants’ behavior in similar uses. Although Plaintiff alleges that Defendants’ used the Waves mark in marketing the Running Point series, this does not alter the Court’s above analysis that the Waves mark is not used to identify the source of the series. And the fact that Defendants have obtained trademarks in fictional businesses central to their shows in the past again does not show that Defendants have used the Waves mark to identify the source of Running Point here.
The ruling goes on to note that if Rogers applies, the Lanham Act does not. With source identifying out of the equation, the only remaining question is if the use in this case is artistically relevant. As the fictional team the main character owns, the name of that team is obviously artistically relevant.
Pepperdine has been given leave to amend its complaint into something that is actually legally sound, but I’m struggling to understand what that would even be. In lieu of an amended complaint, it seems that some creative works are still protected some of the time from nonsense trademark infringement claims, even in a post Bad Spaniels world.
Filed Under: lanham act, likelihood of confusion, running point, trademark
Companies: netflix, pepperdine
It’s been a long and winding road to mostly get us right back to where we started in the battle between pop star Katy Perry and Aussie clothing designer Katie Perry. If you’re not familiar with this saga, here is a brief summary. Note that I will be mostly using only Katy and Katie when naming the players here to avoid confusion.
Katie Taylor is the real name of the Aussie designer, but she began selling clothing under the name “Katie Perry” in 2008 and secured a trademark for the name in Australia for clothing. While Katy’s team initially sent a C&D to Katie’s business around that same time, it appears nothing came of that C&D, even as the singer went on a worldwide tour that included Australia in 2014. That’s when Katie sued Katy, arguing that clothing merch sold on her local tour constituted trademark infringement, as the public might be confused between the two entities and who was producing what and for whom. She won her initial lawsuit, but Katy appealed and won, with the court not only clearing her of trademark infringement but also canceling Katie’s trademark entirely. Rather than leaving well enough alone, Katie appealed that ruling to Australia’s High Court.
And that brings us to an unlikely present, in which the High Court partially agreed with Katie’s appeal, reinstating her trademark, but not ruling that Katy Perry infringed upon it. I’m going to stay away from the first part of CNN’s post on the matter, because it does a horrible job of framing all of this, mostly in that in paints Katie Perry as some kind of underdog victim in all of this when she very much is not. But as for the ruling itself:
But on Wednesday, Australia’s High Court overturned the ruling, arguing the cancellation of the trademark was not warranted, and the use of the “Katie Perry” trademark was not likely to deceive or cause confusion.
Taylor said the court battle was a long and difficult process, but she did it to show that trademarks are there to protect small businesses, not just large brands.
“So many people said to me, like, why don’t you just give up? It’s not worth it. I really believe in standing up for your values. Truth and justice are part of my core and my values.”
And this is where I’m once again frustrated with CNN’s posture in its reporting. Katie sued Katy. That’s how this whole episode really started. Katie talking about how she is glad this all isn’t hanging over her head when she started the lawsuit that led to all of this is insane. This was a self-inflicted wound of epic proportions on a timeline equally crazy.
But the key part to me is that the logic behind ruling that Katie can have her trademark back is that Katie’s and Katy’s trademarks can coexist without any real concern for deception or confusion. That same logic is what I stated at the start of this whole ordeal as the reason this trademark lawsuit battle never should have been started in the first place.
Started by Katie Perry, I’ll remind you. And so we’ve come full circle, with both groups having their trademarks but without any actual infringement having occurred. It’s been a wild, stupid trip, but I guess we got where we were going: right back to where we started.
Filed Under: australia, katie perry, katy perry, trademark
Alright, I think it might be time for a wellness check on the people running Buc-ee’s.
I realize that these chain of gas and convenience stores has a strange cult following in the south. I won’t pretend to understand why that is, but whatever. Unfortunately, the company also appears to be run by a bunch of trademark bullying jackwagons. I’ve referred to Buc-ee’s as the Monster Energy of gas stations, because the company appears to think that trademark law allows it to own the concept of a cartoon animal mascot in any tangential industry. They have bullied and/or sued many, many companies under this premise. Because most of its victims are smaller companies, they have gotten a lot of settlements out of these bullying efforts.
But those settlements don’t make the bullying legitimate. Buc-ee’s views on what trademark law allows it to own and control are fantasy. They’re still out here doing their bullying thing, though, with the latest example being its decision to sue a company that runs a gas station called “Mickey’s”. I’ve embedded the suit below, but here is a sample of the claims in the filing made against the gas station chain.
Like the Buc-ee’s Marks, Defendant’s Logos incorporate a cartoon animal facing right with wide eyes and a smile, overlaying a round background…also uses red as a predominant color in its interior and exterior signage, as well as employee uniforms and anthropomorphic representations of its cartoon moose mascot…also uses red as a predominant color in its interior and exterior signage, as well as employee uniforms and anthropomorphic representations of its cartoon moose mascot.
Consumers are likely to perceive a connection or association as to the source, sponsorship, or affiliation of the parties’ products and services, when in fact none exists, given the similarity of the parties’ logos, trade channels, and consumer bases.
And here, dear readers, is the very similar branding that the lawsuit references.
Once again, as with past Buc-ee’s trademark suits, the claims simply fall apart on inspection of the evidence. These logos are not similar. They don’t use the same overall color schemes. They feature easily distinguishable cartoon animals as mascot. A beaver is not a moose, which is a sentence I never thought I’ve have to type out on a keyboard. Likewise, a hexagon is not round, another thing I’d never thought I’d have to write. This is all very, very stupid, and not at all concerning from a customer confusion standpoint.
Despite that, the suit alleges that Mickey’s has “used” the Buc-ee’s logos to enrich themselves. It’s bonkers. In addition, Buc-ee’s has petitioned the USPTO to cancel the trademark registrations Mickey’s has for its branding.
Why is this company so beloved? They truly seem like craven bullies above all else. None of this is trademark infringement and I certainly hope the owners of Mickey’s are prepared to fight this fight. Because Buc-ee’s doesn’t somehow have a monopoly on cartoon character mascots. Not for its industry, never mind others.
Filed Under: beaver, moose, trademark
Companies: buc-ee's, mickey's
The ten year war over Iceland is over and Iceland has come out the victor.
If you don’t know what I’m talking about, be prepared to listen to a whole bunch of stupid. In 2016, we wrote about Iceland Foods, a UK grocer, which had somehow convinced the EU to give it a trademark for “Iceland” and which then went about bullying other companies and opposing trademarks for any that included the name of that country. One of the entities that Iceland Foods found itself in a trademark opposition with was Iceland, as in the country, when it attempted to trademark “Inspired by Iceland.” The Icelandic government didn’t take too kindly to that appropriation of its own name and petitioned to cancel the Iceland Foods trademark, which is exactly what happened. Rather than put an end to this absurdity, Iceland Foods appealed that decision, lost, then appealed it again, lost again, appealed a third time, only to lose there as well.
From there, Iceland Foods had but one final option for appealing all of these perfectly sane rulings, which would be to take this before the Court of Justice of the EU. And, while that would obviously be crazy, everything I’d seen to date led me to believe the grocer would do just that.
But sanity seems to finally be on the menu, I guess. Iceland Foods has publicly announced that it is ending the fight and surrendering.
Executive chairman Richard Walker revealed the supermarket would drop the legal dispute, which centres on the right to use the phrase Iceland in the EU, following its third legal loss in July 2025.
Iceland had one fourth and final route of appeal, via the Court of Justice of the European Union, but Walker told the Financial Times it would instead use the “couple of hundred grand” it would save in legal fees to give a “rapprochement discount” to Icelandic shoppers.
Yeah, that’s how this should have been approached from the jump, folks. And this actually goes back even further, where this broad, geographic trademark by a private entity consisting of the name of a sovereign nation never should have been granted a trademark to begin with.
But that’s all over now. Iceland Foods’ trademark is invalidated. Iceland once more is free from being bullied over its own name, as would be other companies from the island nation. Iceland Foods can keep on operating as it always has, sans the ability to bully others with this ridiculous mark. Walker himself said as much, in a very frustrating manner.
“We lost for a third time. We’re going to throw in the towel,” Walker told the FT. “It’s actually fine — we don’t have to change our name.”
Exactly. You never had to. That was never in question. The only question is whether you got to keep your laughable trademark and bully others over it.
Instead, the grocer wasted everyone’s time, and who knows how much of its own money, trying to wage this silly war.
Filed Under: cjeu, iceland, iceland iceland iceland, trademark, uk
Companies: iceland foods
It will only take a few moments perusing all the headlines of posts we’ve done on the collective group that owns the Pokémon properties to know that they really, really care about intellectual property. It doesn’t matter if it’s patents, copyright, or trademark, these people will wield it all if they sniff out even the barest potential infringement they can find. But sometimes the depravity of these people’s unflinching focus on IP can surprise even I.
In January, a card shop called The Poke Court held an event at the store in Manhattan. Unfortunately, that event was interrupted by armed gunmen that stormed the storefront and robbed it. It was all over the news and the store received all kinds of support from the local community and online. Obviously a shitty situation, but good people rallied to support them.
Then Nintendo came calling.
The shop posted on its Instagram account that Nintendo reached out with “concerns” about its name and logo, which included the iconic red-and-white Poké Ball. “The short story is Nintendo reached out to us with concerns about our name and logo,” the message read. “This means we’re evolving!”
As such, the owners have released a statement with a new name and logo. The store will now be called The Trainer Court, and now has replaced the Poké Ball logo with a new one with a stylized “C” for “Court.” Beyond that, the store will continue to offer the same cards, community events, and tournaments. The Trainer Court will also be hosting an event on Pokémon Day, February 27, which commemorates the series’ 30th anniversary.
Now, I want to be very clear about this: Nintendo can do this. The store’s name and logo are likely infringing. In a vacuum, this would be your run of the mill trademark issue, with a large company forcing a smaller company to rebrand, because that’s simply what they do.
But this isn’t in a vacuum. Nintendo only caught wind of this supposed “threat” because very real people with very real guns forced a traumatic experience upon the store owners, workers, and customers. There is nothing in the Instagram message posted above to indicate that Nintendo expressed anything at all to the business other than its concerns about intellectual property. It appears that Nintendo cares more about that than any of the lives impacted by what was an armed robbery.
The business itself is putting on both a brave face and a positive attitude about all of this.
“Above all, we have always been fans of Pokémon,” the statement reads. “We are a group of kids who refuse to grow up, and we spend every day celebrating this franchise that means so much to us.”
That’s great, but it sure would be lovely if that same humanity and enthusiasm was mirrored by the very business of which they are such fans. And perhaps the ink could have dried on the police reports before Nintendo felt it necessary to pump out some legal threat letters.
Filed Under: pokemon, trademark, trademark bully
Companies: nintendo, poke court, trainer court
Remember how Donald Trump was going to “drain the swamp” as president? The idea, spilling out from his first campaign for president, was that Washington was horribly corrupt, that politicians and unelected government stooges were making money from their positions of power, and that even politician’s families were in on the grift. The only reason I am aware of a name like Burisma is because Trump and his sycophants screamed about it as an example of how Biden’s family was corruptly making money by utilizing Joe Biden’s time as vice president for influence.
But, if there was a grift going on there, at least the Biden’s had enough shame to try to hide it. The same people who were up in arms over Burisma and other such claims have been remarkably silent on the far more obvious and in your face grifting that Trump is doing. Our president appears to look at the tax coffers as his own personal piggy bank, constantly dreaming up reasons why your tax money should find its way into his pockets. He wanted $10 billion in taxpayer money because his tax returns leaked. He wants $230 million because he was tried for his criminal behavior. He guided billions in taxpayer money to his pet supporter Elon Musk. And, because the corruption must be as naked as possible, agencies under his executive umbrella would be the ones approving all of this redistribution of taxpayer wealth into his own personal bank accounts.
It hasn’t stopped and the latest attempted grift is absolute stunning in how brazen it is. You may have heard that Trump is attempting to strong-arm several local governments into renaming an airport after him. It started with Dulles International Airport outside of Washington DC, with Trump reportedly holding millions in approved federal infrastructure funds hostage if he didn’t get his way. He has no authority to do this with congressionally approved funds, of course, but that isn’t stopping him. The state government in Florida raced to be first in line to lick Trump’s boots, unsurprisingly, with the state House voting to change the Palm Beach International Airport’s name to the President Donald J. Trump International Airport instead. That measure will now go before the state Senate, where it is likely to pass.
And while all of this was going on, an interesting thing happened: a private company that manages Trump’s intellectual property licensing filed for trademarks on the potential names for these airports.
The applications, submitted by DTTM Operations LLC on February 13 and 14, seek federal protection for the names:
All three applications were filed with the United States Patent and Trademark Office on what is known as an “intent to use” basis. This is a filing strategy that allows applicants to stake a claim to a name before it is used in commerce.
As Josh Gerben notes in his post, this has simply never happened before. We’ve never witnessed an American president, while in office, have his private company proactively trademark the very names of a piece of government infrastructure that that same president was attempting to bring about. It’s an incredibly naked grift, in which an American president is clearly, unabashedly seeking to make money on the backs of taxpayers while purporting to do the people’s business.
I should be very clear: these are trademark filings that are completely unprecedented. Airport names almost always originate from the governmental body that owns or manages the facility. They are not owned or licensed by privately held entities.
Here, the filings were made by DTTM Operations LLC, the same entity that protects the Trump brand across hotels, consumer goods, and licensing ventures. That fact alone signals that this is not merely about honorary naming. It is about brand control.
The broader goods listed in the applications, such as clothing, luggage, and watches, are equally telling. Those categories are classic merchandise plays. If an airport were renamed, the trademark filings would allow DTTM Operations to control and monetize branded merchandise associated with the location.
The intent is obvious: create a licensing structure such that the American government will need to pay licensing fees to Trump’s business in perpetuity. There is no other reasonable explanation for this sequence of events. And it appears to be going on without any serious comment from the very same people who whined about what a swamp Washington had become.
Your money is not Trump’s personal piggy bank. Or, rather, it shouldn’t be. Unfortunately, those who ought to be clapping back on all of this are either in on the grift, or perfectly willing to allow it to occur.
Filed Under: airports, corruption, donald trump, dulles, palm beach international, trademark
Companies: dttm operations, trump organization
Back in 2023, we talked about a strange trademark dispute out of the UK concerning oat-based milk products. Specifically, Oatly, a large producer of oat milk, applied for a trademark in the UK for its slogan, “Post Milk Generation.” Dairy UK, a lobbying organization representing dairy farmers in the country, opposed the trademark in the application stage, arguing that a UK regulation prevented any company from using the word “milk” in conjunction with “products that are not mammary secretions.” Oatly successfully argued that its slogan did not run afoul of the regulation because it was both not suggesting that its product was milk and was instead describing the consumers of Oatly’s product, or the generation that was moving beyond milk. In other words, there was no association being made with milk here; in fact, the opposite was the messaging.
That should have been the end of this nonsense. Instead, Dairy UK appealed that decision and the London Court of Appeal reversed the lower court’s decision. Suddenly, Oatly could not trademark the slogan, nor use it on its products, ostensibly.
Oatly stated that the reversing of the decision was absurd and clearly a ploy by Dairy UK to limit competition with its members. The company appealed up to the UK Supreme Court which, amazingly, affirmed that Oatly cannot have its slogan trademarked.
The UK Supreme Court has unanimously ruled that Oatly cannot use its “Post Milk Generation” trademark on oat-based food and drink, handing a landmark victory to the dairy industry, as it contends with record-low farm numbers, falling retail volumes, and collapsing wholesale prices.
The judgment arrives at a precarious moment for British dairy. The number of British dairy farms has fallen to a record low of 7,010 — an 85% decline from an estimated 46,000 in 1980, according to industry estimates and the Agriculture and Horticulture Development Board (AHDB).
It’s hard to see this as anything other than a national-level court falling all over itself to protect a domestic industry from foreign competition. The explanation the court offered for its decision is equally confusing. For one, while Oatly pointed out again that its use of the word “milk” in the slogan is not describing the product, but the consumer, the court said that doesn’t matter at all. The word instead simply suffers from a blanket ban on any marketing or trade dress if it doesn’t come from a nipple.
Then, when Oatly also points out that its use obliquely informs the public that the product does not contain milk — hence the “post milk generation” language –, the court points out that because Oatly has stated that the slogan doesn’t describe the product, any insinuation about the product itself doesn’t count as it’s not direct and clear enough.
The second: even if the word “milk” is caught, is Oatly saved by an exception that allows protected terms when they “clearly” describe a quality of the product, such as being milk-free? Again, the court said no. Lords Hamblen and Burrows, writing for the unanimous panel of five justices, held that the slogan describes a type of consumer — younger people turning away from dairy — rather than anything about the product itself.
Even if it could be read as referencing a milk-free quality, it does so in an “oblique and obscure way” that fails to clarify whether the product is entirely milk-free or merely low in dairy content.
This is the court acknowledging explicitly that Oatly’s slogan is not describing the product, but the consumer. It also claims that a slogan that describes a consumer that has moved beyond milk isn’t clear enough as to whether the product is sufficiently non-milk. What?
All the court has demonstrated is that Oatly is definitely not trying to call its product milk and is not trying to confuse anyone with its slogan. For that, Oatly doesn’t get its trademark.
Again, the lobbying efforts here are quite clear. And they appear to have influenced the court’s decision. In fact, what Dairy UK is trying to restrict goes well beyond the word “milk” to the point of absurdity.
The Supreme Court has emerged from years of lobbying action. An investigation by Greenpeace’s Unearthed, based on documents obtained through disclosure, revealed that Dairy UK had been lobbying for tighter enforcement of dairy term protections since at least 2017.
Committee meeting notes showed the association presented “the issue of misuse of protected dairy terms” to a Business Experts Group panel and was subsequently tasked by Defra with developing a briefing paper for the Food Standards Information Focus Group (FSIG).
Dairy UK submitted a position paper to Defra in November 2022, backing FSIG draft proposals that would have gone significantly further — banning descriptors such as “yoghurt-style,” homophones like “mylk,” and even phrases like “not milk.” Forty-four plant-based companies and NGOs, including Alpro, Oatly, Quorn, and the Good Food Institute, co-signed an open letter opposing the restrictions.
If we’ve reached the point in which someone who doesn’t produce milk can’t point out on its trade dress that their product is “not milk”, then we’ve crossed the Rubicon into a land of dumb.
Was the court solely looking to protect suffering UK dairy farmers in its decision? I can’t say so for sure. But what is very clear is that nothing in its decision has anything to do with protecting the public from deception, which is the entire point of trademark law to begin with.
Filed Under: oat milk, post milk generation, trademark, uk
Companies: dairy uk, oatly
It’s been several years since we last did this, but I’d like to remind you all that the National Football League plays a lot of make believe when it comes to what its trademarks for the “Super Bowl” do and do not allow it to do in terms of enforcement. Thanks largely to media outlets that repeat the false narrative the NFL puts out there, far too many people think that businesses, or even members of the public, simply cannot use the phrase “Super Bowl” in any capacity whatsoever if there is any commercial component to it.
TV companies advertising their goods and telling you to “be prepared for the Super Bowl”? Can’t do it. A church holding a party for the game with invitations to the Super Bowl and a 5$ cover charge? Verboten. And this way of thinking is perpetuated by posts like this one from TVLine.
The term “Super Bowl” is an NFL trademark, and licensing that trademark is very, very expensive. After all, the NFL makes a lot of money from “Super Bowl” commercials – 30-second slots for this year’s game have cost upward of $10 million.
Of course, there are ways around not being able to mention the Super Bowl in commercials. Brands that aren’t willing or able to license the name will refer to it as “the big game” or something along those lines instead. What’s more, the brands that pay to license the name still have to work within strict parameters. According to L.A. Tech & Media Law, parties that purchase Super Bowl ad spots can only mention the name of the event for a limited period of time.
In the past, the league has sent cease-and-desists to bars and even churches that host Super Bowl parties and charge an admission fee. In short, if an entity of any kind uses the term for commercial gain, they can expect a letter from the NFL’s lawyers.
Yes, they can, but that shouldn’t be the entirety of the post. The NFL can send whatever letters they like. What matters is whether they are asserting rights they actually have or not. Otherwise, posts like this leave the public with an, at best, incomplete idea of what rights the NFL has and what rights it doesn’t.
The NFL certainly has a trademark on “Super Bowl.” That does not automagically mean it can fully control all uses of that mark, even where there is money involved. Fair use defenses still apply, of course, as does the general standard that the use had to either confuse the public as to the source of the product or service, or falsely imply an association between the company and the NFL. Not all uses, even commercial, will do that.
Stop giving the NFL power it doesn’t actually have. A restaurant putting out a sidewalk sign that says it will have the Super Bowl on its TVs is not trademark infringement by any sane reading of the law. An advertisement merely acknowledging the existence of the Super Bowl does not in and of itself make it infringing.
Yes, the NFL pulls overly protectionist crap with this trademark all the time. Yes, it would take coordinated pushback from more than one corporate entity with deep pockets to fight it. But it’s a fight worth fighting and, at the very least, none of us have to pretend that the NFL has rights it doesn’t have.
Filed Under: super bowl, trademark
Companies: nfl
It’s been nearly a decade since Mike wrote about the strange trademark approval the New England Patriots received on the term “Perfect Season.” The story rang as odd for several reasons, not the least of which being that the team applied for the mark in 2008 just before that year’s Super Bowl and at a time in which the Patriots had completed an 18-0 record including the regular season and two playoff games. The Patriots then famously fell on their collective face against the Giants, making the season very much not perfect. But the team went ahead and got the mark anyway. Add to that my take that this kind of phrase for the categories of sports apparel and the like is not nearly unique enough to serve as a valid mark to begin with and we have a situation practically begging to get absurd.
And the absurdity may have arrived. For you non-sports fans in the audience, the Indiana University Hoosiers just won the College Football National Championship without losing a single game during the season. IU, in stark contrast to the Patriots, did in fact have a perfect season. But if they, or anyone else, would like to celebrate that fact, they would need to license the use of the term from the Patriots to do so.
Not only did The Kraft Group continue, they licensed the mark to the Massachusetts Interscholastic Athletic Association for use in a DVD in order to satisfy the “use in commerce” stipulation by the U.S. Patent & Trademark Office and, in 2016, the team was granted rights to the trademarks.
Unlike Pat Riley, who filed to trademark “Three Peat” when he was the coach of the Lakers and then cashed in when the Chicago Bulls and New York Yankees won three straight titles, The Kraft Group’s trademark hasn’t had many opportunities to gain royalties from the mark.
But Kraft can demonstrate it has used the term in commerce via its previous licensing agreements. That puts IU and/or apparel companies in the position to go one of three routes. They can license the term for apparel from Kraft, thereby perpetuating this entire silly enterprise, they can not license the phrase and potentially fight a court battle to invalidate the trademark after they make the products and are sued or threatened by Kraft, or they can just not use the phrase at all.
The latter appears to be the most likely route.
Items in Indiana’s team store use the word “Perfection.” Homefield Apparel, whose original school is Indiana, uses “Perfect” without “Season” on its shirts.
Even that is absurd. Again, the end result, thanks to a USPTO all too happy to approve trademarks that it probably shouldn’t, is that a team that achieved a perfect season cannot freely use the phrase that correctly describes its own accomplishment because it would have to license it from a team that didn’t.
Filed Under: perfect season, trademark, trademark bullying
Companies: indiana university, kraft group, new england patriots
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