Coyote Blog

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."

Every year about this time, the NFL earns itself some bad press for busting some small bar or local group for using the word "Superbowl" rather than that catchy phrase "the big game on the first Sunday in February down in Miami."  This year, the bad press honor goes to the NFL for shutting down a party at a church in Indianapolis for having a screen too large.  (Hey NFL!  I am breaking the law!  I have a 110" front projection TV, twice the "legal" 55-inch limit, and I am showing the game on it at my party.  HA HA HA!).  And by the way, what lapdog legislator wrote this law for them, and did he get Superbowl tickets for life?

Now, I understand the situation with copyrights - if you don't defend them vigorously and even-handedly, you can lose them.  I seem to remember Exxon or some other chemical company lost the rights tot he name Formica when they let it be used too generically for counter-top materials.  And the NFL PR people use this defense every year, saying "we really don't want to shut down these folks, but we have to." 

I don't agree that individual words should be copyrighted such that their use in a broad range of contexts should be illegal.  I am fine saying that I can't create another peanut butter and call it "Jif."  I will accept P&G has some sole right in this country to that use.  However, I don't think P&G can tell me that I can't advertise a "Jif party" feature their peanut butter.  In the same way, I am willing to grant the NFL exclusive use of "Superbowl" to describe a sporting event, but I don't think that should restrict me from advertising that people should come to my bar to watch the Superbowl.  And just to add one more example so I have a "threepeat," I don't think Pat Riley should have any ownership in that word.   However, since copyright law is not going to change tomorrow, I will offer up a more modest change.

So here is my suggestion.  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.

PS-  Welcome to the NFL intellectual property department.  I presume I included enough verboten uses of "Superbowl" to catch your search engine's attention.

PPS-  My Firefox spell checker (which I love!) does not have "Superbowl" in it.  I wonder, would the NFL consider it a copyright violation for a program to use the word "Superbowl" in its dictionary?