Available Defenses to Trademark InfringementBut is the NFL right? Legal defenses are available in some cases, such as where the use of SUPER BOWL constitutes fair use or nomative use. The references to Super Bowl in this article is an example of nomative non-infringing use of a registered trademark.Under the law trademark owners have a legal duty to police their marks, but some contend the NFL takes a much more heavy handed approach than necessary, striking fast and furious against even potential infringers. But the NFL’s trademark protection strategy is important in protecting the licensing value of the brand. If companies could freely use the term SUPER BOWL to promote goods and services around the time of the big game and ride the Super Bowl promotional wave, perhaps the $3.7 million price tag for a 30 second spot in Super Bowl XLVII wouldn’t sell as well. So maybe the NFL is overzealous in its trademark protection strategy, but rather than defend, most advertisers use alternatives.
The Legal Work AroundClever marketers skirt around issue with slogans such “Super Sale”, “Big Game Specials”, and other workarounds. Why? Because it gets the message across, and is more likely to avoid a vicious cease and desist letter and demand for royalties from the NFL. Although advertisers can in some cases successfully defend the use of SUPER BOWL under nomative use grounds, the cost of a legal defense is likely not worth the fight.The NFL’s hyper-vigilant trademark enforcement, coupled with a reputation for litigation, helps maximize brand owners’ control over its exclusive trademarks. For any brand unauthorized use of its trademark or a similar version is alarming.
Author: David N. Sharifi, Esq. is a Los Angeles based intellectual property attorney and technology startup consultant with focuses in entertainment law, emerging technologies, trademark protection, and “the internet of things”. David was recognized as one of the Top 30 Most Influential Attorneys in Digital Media and E-Commerce Law by the Los Angeles Business Journal in 2014. Office: Ph: 310-751-0181; email@example.com.Disclaimer: The content above is a discussion of legal issues and general information; it does not constitute legal advice and should not be used as such without seeking professional legal counsel. Reading the content above does not create an attorney-client relationship. All trademarks are the property of L.A. Tech & Media Law Firm or their respective owners. Copyright 2015. All rights reserved.