The NFL's trademark is treating its fans like dirt

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  • Overbearing trademark cases that alienate fans, it seems, could be an official trademark of the NFL.

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  • Overreach is standard for the NFL’s legal team writes @TPCarney

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  • .@TPCarney: The NFL’s trademark is treating its fans like dirt

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As the Super Bowl approaches, imagine this nightmare scenario for a fan:

Captivated by the drama of brothers John and Jim Harbaugh facing off in the big game, you buy a T-shirt online sporting the word "Harbowl!" and the date of the game. Or maybe you buy a "Harbowl" hat.

But after you buy it -- and this is the terrifying part -- you learn this "Harbowl" shirt is not official merchandise of the National Football League. "How can that be?!" you cry. " 'Harbowl' is so similar to 'Super Bowl,' a registered trademark of the National Football League!" The word "bowl" on it fooled you into believing it was made with love in Guatemala with the same expert seamsmanship and decal artistry you think of whenever you think of the National Football League.

But don't worry, football fans. You have been spared this betrayal and shame by NFL Assistant Counsel Dolores DiBella and the consumer watchdogs on the league's legal team.

The background: Last season, as the Ravens and 49ers advanced through the playoffs, a fan in Pendleton, Ind., had an idea.

Roy Fox is a Colts fan, though he confesses fondness for the Broncos ever since quarterback Peyton Manning went there.

The word "Harbowl" first surfaced when the Harbaugh brothers faced off on Thanksgiving 2011. Fox thought maybe he could make money by selling hats and T-Shirts with that word if those two coaches ever played again.

Fox tells me he recalled that when basketball coach Pat Riley was chasing his third consecutive NBA title, Riley trademarked the word "Three-Peat," in order to make money off of shirts bearing that word. "I'm assuming if it's worth his time," Fox told me, "it's worth mine."

Fox isn't a businessman. Nor is he rich. He didn't want to hire a team of lawyers or start a business. He just wanted to possibly sell some hats and shirts. So he paid $1,000 to LegalZoom, which helped him apply for a trademark for both "Harbowl" and "Harbaugh Bowl."

According to online records, the U.S. Patent and Trademark Office received Fox's trademark application on Feb. 28, 2012. In July, the PTO published this application to give any competing trademark holders a chance to object that this trademark could cause confusion.

That's when the NFL's lawyers stepped in, according to emails and letters Fox forwarded to me.

NFL attorney DiBella wrote Fox in August, explaining that the NFL "has developed extensive rights its [sic] federally-registered [sic] mark SUPER BOWL. ... " She warned: "We are concerned that, because our mark and your applied-for marks are similar, it may cause the public to mistakenly believe that your goods and/or services are authorized or sponsored by or are somehow affiliated with the NFL. ..."

Fox wasn't planning on emulating the Super Bowl logo, nor using 49ers or Ravens logos. DiBella's objection was that the word "Harbowl" sounds like "Super Bowl."

Fox didn't want to give up the trademark, though. And so DiBella pushed harder. "If you are still interested in resolving this matter amicably and abandoning your trademark applications, please contact me as soon as possible," she wrote in October. Otherwise "we will be forced to file an opposition proceeding and to seek recoupment of our costs from you."

"I was threatened to be taken to court," Fox told me, "and I just assumed I would lose, and I couldn't afford the court costs." So he abandoned the trademark.

It's important here to recall what trademark law is about. The PTO justifies trademarks as "identifying the source of products and services and being an indicator of safety and quality to the consumer."

When you buy ice cream that says "Ben & Jerry's" on the carton, you expect a certain level of quality. If I churned out rancid custard and slapped Ben & Jerry's name on the label, I'd be ripping off consumers.

So ask yourself: By putting the word "Harbowl" on a shirt, would Roy Fox be tricking folks into thinking they were buying official NFL shirts?

It's a silly premise, and you'd be hard-pressed to find a trademark lawyer siding with the NFL on this case. But such overreach is standard for the NFL's legal team.

Recently, NFL lawyers ordered stores to stop selling shirts bearing New Orleans Saints' fans longtime refrain, "Who Dat?" The NFL also warned local retailers not to sell shirts with Saints colors and roman numerals.

Overbearing trademark cases that alienate fans, it seems, could be an official trademark of the NFL.

Timothy P.Carney, The Examiner's senior political columnist, can be contacted at [email protected] His column appears Monday and Thursday, and his stories and blog posts appear on washingtonexaminer.com.

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