I recently came upon this story about an NFL proposal to require all photojournalists who cover the SuperBowl to wear bright red vests advertising the SuperBowl’s two big sponsors: Canon and Reebok.

However, this post is not about that. It made me think about the NFL’s earlier efforts to prevent third parties from using the phrase “The Big Game” in their efforts – in the NFL’s words – to ” attempt[] an end-run around the term ‘Super Bowl.”

It is true that the NFL has been very successful in preventing others from using the term “SuperBowl” in any context. However, it seems to me that there are two reasons that the NFL has been successful, and neither has anything to do with the strength of its trademark claims. In my opinion, the reasons are 1) the NFL takes on individuals or small entities that cannot afford to defend a federal lawsuit and 2) they take on corporations who stand to benefit from complying with the NFL’s demands. For example, if a company like BestBuy refuses to comply with the NFL’s demands it risks losing potential future tie-in promotions with the NFL and, more specifically, for the SuperBowl. Therefore, large companies comply for business reasons – not because they have weak trademark defenses.

I would love to see some company or individual who does not have the same need for future tie-in contracts stand up to the NFL and watch the NFL actually lose its claim in a court. After all, any company that advertises a sale on big screen TVs in time for the SuperBowl is in fact referring to the SuperBowl – not some competing event. Trademark law does not simply prevent using another’s trademark. It prevents use of a trademark that is likely to result in a likelihood of confusion. To advertise TV sales in order to watch the SuperBowl does not result in a likelihood of confusion – even if the NFL has contracts with promotional partner. Any such sale actually refers to the NFL’s SuperBowl. Thus, there can be no confusion.

Practically speaking, since only authorized companies can use phrases like “Official Sponsor,” etc., there is no real likelihood that consumers would believe that a sponsorship exists by the mere use of the SuperBowl trademark.

If Katonah, NY can find a law firm to represent it pro bono against Martha Stewart, I am sure that someone could find a firm to stand up to the NFL pro bono.

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