Super Bowl Legal Blitz: Inside The NFL's Legendary Trademark Defense; Forbes, January 30, 2018

Michelle Fabio, Forbes; Super Bowl Legal Blitz: Inside The NFL's Legendary Trademark Defense

"A trademark is a "word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services." Generally, courts use a "likelihood of confusion" test to determine whether trademark infringement has occurred, i.e., whether a consumer is likely to be confused as to the source of the goods or services by the allegedly infringing usage.

Legally speaking, defending a mark is an important aspect of being a trademark owner. Besides the potential weakening and loss of distinctiveness ("dilution" in trademark speak), the failure to enforce a trademark could even lead to the forfeiture of some of the available remedies for infringement.

For this reason, multimillion-dollar companies hire professional watch services to monitor trademark use and possible infringement. And with the NFL, nothing seems to escape its notice—or legal wrath—which goes far beyond just counterfeiters.

In 2007, the NFL sent a warning letter to an Indianapolis church that had advertised a “Super Bowl” party and planned to charge admission for a viewing on a screen larger than 55-inches. The league has since loosened its policies regarding gatherings—the word “Super Bowl” and team names can be used—but still no admission fees are allowed. For churches, the event must be held in the usual place of worship as opposed to a rented space.

Notably, the logos of the NFL, the Super Bowl and the participating teams may not be used, which has led to rather hilarious if legally sound results. Take, for example, this promotional image by a Bethlehem, Pennsylvania arts campus, which features clip art, "Birds" and "Big Game," instead of official NFL logos, "Philadelphia Eagles" and "Super Bowl"..."

Out of a Rare Super Bowl I Recording, a Clash With the N.F.L. Unspools; New York Times, 2/2/16

Richard Sandomir, New York Times; Out of a Rare Super Bowl I Recording, a Clash With the N.F.L. Unspools:

"Haupt owns the recording but not its content, which belongs to the N.F.L. If the league refuses to buy it, he cannot sell the tapes to a third party, like CBS or a collector who would like to own a piece of sports history that was believed to be lost. He would like to persuade the league to sell the tapes jointly and donate some of the proceeds to their favorite charities. His mother said that she would give some of her share of the sale to the Wounded Warrior Project.

“They’re not doing anybody any good sitting in a vault,” he said. “Let’s help some great charities.”

But that is unlikely to happen. A letter from the league to Harwood last year provided a sharp warning to Haupt. “Since you have already indicated that your client is exploring opportunities for exploitation of the N.F.L.’s Super Bowl I copyrighted footage with yet-unidentified third parties,” Dolores DiBella, a league counsel, wrote, “please be aware that any resulting copyright infringement will be considered intentional, subjecting your client and those parties to injunctive relief and special damages, among other remedies.”

The law favors the league, said Jodi Balsam, a professor at Brooklyn Law School.

“What the league technically has is a property right in the game information and they are the only ones who can profit from that,” said Balsam, a former N.F.L. lawyer."

The NFL wants you to think these things are illegal; Ars Technica, 1/31/15

Sherwin Siy, Ars Technica; The NFL wants you to think these things are illegal:

"The voiceover in the clip says:

"This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited."

That second sentence is bunk from a legal standpoint. It is not illegal to describe or give an account of one of the biggest media events of the year. You can talk about the Super Bowl without infringing copyright. This is not a case of the NFL politely looking the other way while most of America, in public and private, in casual conversations and in commercial broadcasts, discusses the game without the NFL’s permission. The NFL would be laughed out of court for trying to prevent them from doing so—just because you have a copyright in a work doesn’t mean you can prevent people from talking about it. Copyright simply doesn’t extend that far."

Is The NFL Committing Copyright Infringement By Using Photos Without Consent?; Forbes, 10/23/13

Darren heitner, Forbes; Is The NFL Committing Copyright Infringement By Using Photos Without Consent? : "On October 21, 2013, seven photographers filed a federal lawsuit in the Southern District of New York against the National Football League (NFL), Replay Photos, Getty Images and the Associated Press. The lawsuit requests damages for copyright infringement from all the defendants, damages for vicarious and contributory copyright infringement, breach of contract and breach of fiduciary duty. The basis for the action is that the NFL has used photos in violation of the photographers’ copyrights in the same. The photographers further allege that the NFL’s failed to receive consent to use the photos in connection with the NFL’s advertisements, news, promotions and products."