Shutdown Any Unauthorized Use of Trademarks

While many outside the nation's capital were engrossed in this weekend's football games, those inside the beltway were engrossed in their own local sport: politics (especially because D.C.'s team - who shall remain nameless even as that name may be trademarked - hasn't played for the Lombardi trophy in 26 years). Specifically, "Shutdown" was THE topic of conversation (and we weren't talking about how the Eagles defense shutdown Keenum to Diggs).

As I often do when writing these posts, I started thinking about how current events might tie into the upcoming final game of the professional football season to be played on Feb. 4. You know, the one they call the "Super Bowl." In past years, I've reported on unsuccessful attempts to trademark a number of different terms, most prominently "Harbowl" and "The Bong Bowl."

Of course, these didn't fail so much because the marks weren't sufficiently distinctive (as opposed to being "descriptive" - an almost always fatal characteristic for any mark). Nor did they fail because they were likely to be confused with the NFL's registered trademark in "Super Bowl." After all, the applicants for both "Harbowl" and "The Bong Bowl" were only seeking to put those terms on various items of clothing (hats, shirts, jackets, etc.). Objectively speaking, the "bowl" could have referred to anything, not necessarily a football game. If those terms are likely to be confused with "Super Bowl," where would it end?

Indeed, neither application was even rejected by the U.S. Patent and Trademark Office (USPTO); both were abandoned by the applicant. It's unclear exactly why Joel Rogers abandoned the "The Bong Bowl," but we know that Roy Fox abandoned his application for "Harbowl" under pressure from the NFL.

So what if the government's fiscal impasse had continued through Feb. 4 and I applied to register "Shutdown Bowl"? To my knowledge no one is using "Shutdown Bowl" as a trademark in any way. There are no such applications on file with the USPTO. But would it fly now? Could I really trademark "Shutdown Bowl"?

The answer - as always - is "it depends." I probably can't create a football game or other sporting event, especially played around this time of year, without creating a likelihood of confusion with the trademarked "Super Bowl" that was registered to the NFL in 1969 for use in conjunction with "Entertainment Services in the Nature of Football Exhibitions." Creating a TV show called "Shutdown Bowl" or selling T-shirts with "Shutdown Bowl" are probably a little stronger because "Shutdown Bowl," on its own doesn't instantly have football connotations. But that then begs the question: why would we have a TV show called "Shutdown Bowl" or sell shirts with "Shutdown Bowl" on them if we didn't want to play off the big game? And if past years are any indication, when it comes to unauthorized use of "Super Bowl," the NFL doesn't play.

Currently, the NFL has 11 registered trademarks or service marks that include both of the words "Super" and "Bowl" and it is not shy about protecting them. Given that "protecting" includes litigation (which can be rather expensive), most people tend to play it safe. And you should too.

Don't promote yourself, your events, your contests, or any other commercial endeavors by using "Super Bowl" or plays on the team names (or too clever knockoffs of either). Don't run advertisements created by others which do that either. Playing it safe means limiting your use of "Super Bowl" and other NFL-trademarks (including team names) to legitimate news stories where you're engaged in what we call "nominative fair use" which involves: 1) using the actual trademarked term to identify what you're talking or writing about, 2) only using that term as necessary for identification purposes (and not engaging in gratuitous use of the term), and 3) not using the term to suggest any sort of sponsorship or endorsement connection with the NFL or its teams

Of course, in 2018 this doesn't end on Feb. 4. The same goes for unauthorized uses of upcoming sporting events like:

• "Olympics": about 50 registered marks owned by the United States Olympic Committee.
• "March Madness": 12 registered marks owned by the NCAA.
• "World Cup": 13 registered marks owned by FIFA.

Finally, the part you've all been waiting for: my predictions. In case you don't recall, last year I said the Patriots would beat the Falcons 31-27. What was the final score again? Oh yeah 31-28 (like anyone would forget a comeback from 28-3 down). Now that we've established my bona fide credentials, here we go:

Philadelphia beats New England 28-24. I know I said last year that you can't pick against Belichick when he has two weeks to prepare, but the Eagles have that team of destiny feel about them, don't they?

And just for fun, let's go with some Olympics, NCAA, and World Cup picks as well:

Olympic Ice Hockey: The Olympic Athletes from Russia (not to be confused with the banned Russian Olympic team) take advantage of no NHL players participating, beating Sweden in the finals.

NCAA Basketball: Villanova wins its second title in three years (and, for good measure, Connecticut reclaims the throne on the women's side).

World Cup: I have a great track record here, picking three out of the past four winners (only failing with Argentina losing the final to Germany in 2014). Because I know what I'm talking about, I can definitively tell you it is way too early to pick a winner. But I'll try anyway. I'm going with a first time champion: Belgium. They finally have all the talent to overcome the team chemistry issues that have plagued them in the past.

So whether you actively follow sports, are prepping your stomach for football snacks, or are eagerly awaiting the Olympic opening ceremonies, be careful how you use these names

If you have any questions, visit our site at www.fhhlaw.com to learn more about our firm and how we can help you with trademark and other intellectual property issues.