Yesterday, The New England Patriots took a step closer to their fifth professional football championship. As a result, many Maine small business owners will want to cash-in on the frenzy by making references to the Super Bowl in the commercials they run on Portland radio stations. That could be a very expensive mistake.
The word "Super Bowl" is a registered trademark of The National Football League. And the league defends their trademark more vigorously than the Pats offensive line defends Tom Brady. As a matter of fact, "The NFL will inflict the legal equivalent of traumatic brain injury on you if you attempt to use (the words 'Super Bowl')," Bernard Rhodes, a media law attorney with Lathrop & Gage LLP told the Kansas City Business Journal.
Will The NFL Really Come After Me?
But does the NFL really have the time or the inclination to pursue litigation against a li'l ol' Maine small business for what the say on a Portland Radio station?
A few years ago the NFL sent a threatening letter to the Fall Creek Baptist Church in Indiana to demand the cancellation of a Super Bowl party to raise money for the congregations. Why? The church used the words "Super Bowl" in the advertising of the event. So, clearly, if the league goes after churches, then they will have no problem going after a tire store in Westbrook or a sports bar in Brunswick for trademark infringement.
Though the NFL's defensive protection of the Super Bowl trademark may seem offensive to some, it is actually necessary. According to the International Trademark Association, "It is possible to lose rights in a mark by allowing third parties to use the mark without controlling how it is used. This can include failing to control the nature and quality of the goods and/or services offered under the mark by the third party. Such failure to control often is referred to as “naked licensing.” Rights may also be lost if the trademark owner or third parties use the mark improperly, so that it ceases to indicate the source of goods or services and becomes a generic term."
"For example", says the INTA, "escalator and cellophane originally were trademarks in the United States but, as a result of improper use, eventually they became generic names of the products for which they had been used as brands."
The Penalties Are Severe
When the NFL finds a company whom they believe has infringed their Super Bowl trademark, they could exercise their right to litigate. If found guilty, the company will be forced to pay monetary damages. According to Cindy Hill writing for LegalZoom, "These fiscal penalties are based on lost profits calculated from the sales the trademark violator made while using the trademark illegally. If the court finds that the trademark violation was intentional, such as a case in which the violator is selling goods that he is trying to pass off as coming from a known popular brand, the court may impose penalties of three times the amount of actual lost profits.'
In addition to the monetary charges, if a business is, indeed, found guilty of violating the Super Bowl trademark, then they will also be responsible for paying the NFL's attorney fees. And have you seen the cars those guys drive?
So, our advice to any Maine small business who is tempted to use the trademarked term Super Bowl in their radio commercials: Go Safe and Go Home!
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