ARE YOU READY FOR SOME FOOTBALL?

By Debby Winters

Who isn’t ready for some football? Who isn’t ready for that BIG game we call the SUPER BOWL? Okay, so you are ready but you still might be asking why I’m writing about the Super Bowl…well, let me tell you. Every year I look at the Super Bowl and try to link it to Intellectual Property Law or just law in general. This year my link is with the trademarks surrounding football and the Super Bowl.

Trademarks are BIG business in the football world. You may be asking yourself why this is. Let’s take a look at the Super Bowl to see. For non-football fans, the Super Bowl is the annual championship game of the National Football League (NFL). The NFL is the highest level of professional football in the U.S. Each year at the end of the NFL season there’s a game played between the conference champion of the National Football Conference and the American Football Conference. The first Super Bowl was played following the 1966 football season and was dubbed Super Bowl I. On February 1, 2015 Super Bowl XLIX will be played. The Super Bowl is among the most watch sporting events in the world. The NFL restricts the use of its “Super Bowl” trademark with non-sponsoring corporations and because of the high viewership the commercial airtime during the annual broadcast is the most expensive ad time of the year. This means companies regularly develop their most expensive ads for this broadcast. Viewers tune in just to see the annual Budweiser ad. In fact previews of the annual ads are being shown right now.  In additional to the high priced advertisement time, many of the most popular singers and musicians, including Michael Jackson, Madonna, The Rolling Stones, The Who, and Whitney Houston have performed during the event’s pre-game and halftime ceremonies. You may remember the wardrobe scandal between Janet Jackson and Justin Timberlake in 2004. For other memorable halftime shows click here.

Or maybe you remember in 2014 Stephen Colbert changing the name of the game to “Superb Owl” to avoid trademark and logo restrictions.

What is all amounts to is $$$ MONEY! So let’s take a look at the possible trademarks involved in this 2015 game. This year’s teams are the Seattle Seahawks and the New England Patriots. For starters, the New England Patriots have trademarked their brand name (NEW ENGLAND PATRIOTS) and the Seattle Seahawks have trademarked their logo.
The bird head design is a registered trademark of the Seattle team. Trademarks can be anything that identifies a source. Brand names and logos certainly qualify. Then there are trademarks for taglines. ESPN who produced the game has trademarked the tagline, THE WORLDWIDE LEADER IN SPORTS. This is a distinctive identifier for ESPN.  It identifies their products or services and allows them to use this exclusively. 

These are not the only things about the Super Bowl that are trademarked and they aren’t the only things about football that are trademarked. The football industry’s trademark registrations run the gamut, starting with the NFL’s registration of the mark SUPER BOWL® itself, down to the individual players having their own trademarks.  Each team has multiple trademark registrations for their team name and logo.  Many players also have a number of registrations for their own personal brand.  Many players have filed trademark applications over the years to try to leverage a catch phrase or even a pose.  Some of these have been registered and some have been denied. These catch phrases usually first show up on t-shirts (like the one shown).

Seattle Seahawks’ running back Marshawn Lynch owns a registration for BEAST MODE for clothing.  If you have ever seen him in action, that nickname explains itself.

 

New England Patriots’ running back LeGarrette Blount just received a trademark registration for BLOUNT FORCE TRAUMA, also for clothing. Some of the clothing that     bears the BLOUNT FORCE TRAUMA mark displays an image of brass knuckles, like the one shown.

 

 

 

Which trademarks “fumble”?

Leading up to the Super Bowl back in 2008, the New England Patriots had a perfect season.  They got a little too cocky and applied to register the mark 19-0 and 19-0 THE PERFECTSEASON.

The biggest trademark dispute in the football industry heated up this past summer when the Washington Redskins had the trademark registrations for REDSKINS, which they had registered years ago cancelled by the United States Patent and Trademark Office based on the grounds that the team name and logo are disparaging.  See my blog from November 2014.  The team is appealing, and it remains to be seen whether they will change their name in the face of increased pressure.

 

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In Search of Prior Art- Part 2

By Debby Winters

A patent attorney can assist you in having a prior art search performed.  A brief written description and possibly a few drawings or sketches of the invention should be prepared.  This information is provided on a confidential basis to a professional patent search firm that will conduct the patent search.  These firms are usually located in Northern Virginia near the PTO and are staffed with engineers and scientists, at least some of whom may be former patent examiners.  The search firm provides the information to a person with skill in searching the subject matter of the invention who conducts the search.

There are two types of searches that can be conducted. One is a “freedom to operate” search and the other is a “patentability search.” Both take one to two weeks to complete and usually costs between $1,000- $2,000.  For a freedom to operate search, the searchers look at claims of US patents that are currently in effect.  For a patentability search, the searchers will also search for older US patents, foreign patents, and non-patent literature that may disclose the invention.

The results will typically include a stack of the closest 20-30 patents and other prior art references.  The inventor should review them in detail and to bring any that the inventor believes warrant further review to attention. This usually means the closest 3-4.  This saves on attorney time of having to review the entire stack.  The inventor is usually in the best position to determine any differences or similarities between the references and the invention.  After a thorough review, a determination on how best to proceed will be made.

One might reasonably ask why the inventor or the attorney cannot themselves conduct the prior art search on Google, the PTO website, or another search engine.  One answer is that it is far more efficient for these experts to perform the search than for the attorney to do so.  Their hourly rates are typically much less.  Second, the professional searchers find prior art that the inventors and the patent attorney were not able to find.

I almost always advise a new inventor, small company, or start-up to have a prior art search done prior to marketing the invention or preparing a patent application.  In my opinion, the advantages of such a search far outweigh the risks or costs of doing so.