Remember to Exercise Super Judgment When Discussing the Big Game
The matchup for the National Football League's championship game, aka the "Super Bowl", is set. The Los Angeles Rams will face the New England Patriots on Sunday, February 3 in Atlanta in a game that will be hard pressed to exceed either conference championship game in terms of excitement or controversy. Each of the NFC Championship, where the Rams beat the New Orleans Saints, and in the AFC Championship, where the Patriots beat the Kansas City Chiefs, saw one of the teams come back from a double-digit deficit to force a thrilling overtime finish. Both games will be remembered for some questionable officiating.
As a referee myself (albeit the real football, not the one that should be called "throwball"), I chafe at criticism of sports officials. The casual fan neither appreciates the amount of training, education, and dedication that goes into reaching the top levels of officiating nor the nuances of working the games themselves. But, come on, that was a clear pass interference on Rams cornerback Nickell Robey-Coleman. And Kansas City defensive end Chris Jones definitely didn't rough the passer on that "hit" on Tom Brady (and let's not forget overturning that muffed punt call on Julian Edelman after video review which, frankly, could have gone either way, but didn't look conclusive enough from any replay angle to overturn the original call on the field. I only bring this up because Kansas City got the ball right back after a pass intended for Edelman-which clearly was touched this time-was intercepted by the Chiefs, allowing me to bring up one of sports' best quotes, attributed to the NBA's Rashad Wallace: "Ball Don't Lie").
Why do the referees matter? Why are you reading this in CommLawBlog? What does it have to do with trademark law, which, if you've ever read this blog in the past, you've already surmised is the point of this post?
Because the application of laws isn't very different from the application of the rules of sports (which, I'll note, for the real football are technically called "The Laws of the Game"). While there are laws on paper, these are subject to interpretation by the neutral decisionmaker which means we expected predictable outcomes based on prior precedent, whether by a judge, a trademark examining attorney, or a football referee.
There's also a similarity in that participants can sometimes make the rules work in their favor-and some are better at that than others. The New England Patriots certainly spring to mind on the field ("Tuck Rule" anyone?). However, the NFL has a nice history of bending trademark law to its will, too.
I've written extensively on this in the past, covering the fact and the fiction surrounding proper use of the term "Super Bowl", the names of the participating teams, and other NFL trademarks. If I haven't been clear in my previous 11 posts on the subject: the legal line is more or less drawn on whether your use of the trademarked term is commercial in nature or not. You should not be using a trademarked term in any promotions, events, contests, or other commercial endeavors which might create a likelihood of confusion your company, organization, promotion, event or client and the NFL, its teams, its game or other events. "Likelihood of confusion" is one of those legal terms I refer to above that are subject to interpretation by neutral decision makers. Another is "fair use." In this case, we're talking about "nominative fair use" which is what gives you the right to use "Super Bowl," team names, and other NFL trademarks in a legitimate news context. As I've said in the past, nominative fair use involves:
using the actual trademarked term to identify what you're talking or writing about;
only using that term as necessary for identification purposes (and not engaging in gratuitous use of the term); and
not using the term to suggest any sort of sponsorship or endorsement connection with the NFL or its teams.
As I've said in prior posts, and consistent with the other big theme of this post, the NFL tends to "game" the system when it comes to enforcing its trademark. You need to go no further than the stories I wrote in 2014 about an attempt to register "Bong Bowl" and 2013 about an attempt to register "Harbowl" for evidence that the NFL will police its marks to a degree that many might consider excessive under the "likelihood of confusion" test. That's what you can do when you're a heavyweight taking on a little guy who's unlikely muster the resources to fight back, regardless of what a truly neutral arbiter might decide.
As always, you need to keep all of this-the legal standards and the practical implications-in mind as you ramp up your promotions between now and February 3.
And now what you really came for: my annual prediction. I'm feeling pretty confident right now. I'm on a three-game heater in this column (and also picked the winners of the Olympic Hockey tournament and NCAA basketball tournament last year for good measure). More importantly, I WON an NFL pick'em pool this year, beating 126 other participants (including former FHH colleague Joe Di Scipio by a whopping twenty games). While that sounds impressive, in reality, I only got 57.5% of the games correct, so you'd have barely made money following my advice. Still, making money is better than losing money, so if you're looking for guidance, I'm saying Los Angeles beats New England 34-28.