I read a great article by Darren Rovell of ESPN today regarding the upcoming Super Bowl, or as some like to put it, “Harbowl”, “Harbaugh Bowl”, or even “Harbaughgeddon”, due to the two coaches, Jim and John Harbaugh, coaching against each other.
The article discusses a man named Roy Fox who had the great idea last February to apply with the United States Patent and Trademark Office for trademark registration on the names “Harbowl” and “Harbaugh Bowl” because, as he states, “”Right before the conference championship games last year, I thought to myself, ‘Can you imagine if these guys played each other?’” Fox said. “If Pat Riley would go through the trouble of trademarking three-peat, why shouldn’t I try this?”
I commend Roy for the ingenuity, however, the NFL did not react so kindly. Apparently, a couple of weeks before this season started, the NFL sent a note to Fox saying that it was concerned that his recent trademarks could easily be confused with the NFL’s trademark of Super Bowl.
Fox said the league refused to provide him with any remedy. He first asked the league to reimburse him for his costs to file for the trademarks. He also asked for a couple of Colts season tickets and an autographed photo of league commissioner Roger Goodell.
He says the person within the league office he spoke to denied all his requests. After the language got increasingly more threatening, including one note that said the league would oppose his filing and seek to have him pay its legal bills, Fox eventually obliged.
I did some research on these claims and Mr. Fox did in fact obtain Federal trademark registration for the terms “Harbowl” and “Harbaugh Bowl” (See here and here). If this case had been taken through the court system, the NFL would have been fighting an uphill battle; however, they have the deep pockets and could tie up Mr. Fox for years. The reason that the NFL would have an uphill battle is that the terms “Harbowl” and “Super Bowl” do not, in my mind at least, constitute confusingly similar marks. In order to be successful in a trademark infringment action, the asserting party must pass the “likelihood of confusion” test that is outlined in numerous court cases (In the 9th Circuit it is AMF v. Sleekcraft).
Apparently, the league has been known to be very aggressive in cases such as these and nine times out of 10, the person backs away. It would be really interesting to see someone take the league on in a case like this.
For more information on Trademark law in Bellevue, Kirkland and Redmond, consider contacting a Bellevue, Kirkland and Redmond Trademark Attorney.