Counterfeit arguments

Super bowling

Every year around Super Bowl time I post an item about the NFL’s overzealous efforts to impose a gridiron grip on all aspects of its somewhat valuable SUPER BOWL trademark:

It’s the overselling that’s offensive, because of course the NFL has a trademark right to SUPER BOWL. But like all IP owners, the league has set up a campaign not only to protect its legitimate rights but a buffer of illegimate intimidation-based quasi-rights around the real thing.

This buffer zone not only establishes a zone of litigation-based (not legal-based, litigation-based) early warning triggers around the real rights, such that any would-be infringer on the trademark would have to traverse the hopelessly expensive no-man’s land of illegitimate litigation threats. It also has an even more insidious effect of actually causing an expansion of the original right itself. It does this by actually enhancing the perceived “untouchability” of the real trademark, i.e., its isolation in the market, cinching the future results of consumer surveys and other indices (including, of course, the claim that mark holder “vigorously enforces” its rights) that could be used in a future trademark infringement or dilution claim. This is a privilege Congress, but far more so the judiciary, the latter of which almost never enforces the extant, if weak, fee-shifting provisions of the Lanham Act, have reserved exclusively to wealthy trademark owners.

One cost of this process to the likes of the NFL, however, is that some its “people” do have to find themselves signing cease and desist letters and making statements to reporters that contain some pretty preposterous claims. That’s not much of a cost, because these “people” are paid to do it. Consider this story, via David Gibber, reporting on the fairly uncontroversial practice of the NFL, lo this Super Bowl season, of cracking down on unlicensed vendors of team-affiliation merchandise:

Hawkers selling unlicensed Ravens apparel: beware. The NFL is scouring the area, fiercely guarding its product and willing to alert authorities if its name is being violated.

NFL officials say that the unauthorized use of its shield and team logos on merchandise happens across the country every year, and that as teams progress through the playoffs, the issue grows substantially in the respective cities. The NFL has an exclusive deal with Reebok for its T-shirts, jerseys, hats and other apparel.

League representatives estimate that they lose a significant amount of money each year to hawkers using NFL teams’ names, although they could not provide a figure. Anastasia Danias, an attorney for the league, said that U.S. businesses lose about $250 billion a year in revenue because of the counterfeit market.

No, I’m not talking about that $250 billion figure — which sounds mighty shaggy. All the above is completely plausible, once you accept the dubious, but completely mainstream argument, that the law of trademark really is meant to protect against this. But along those lines, here comes a Super Bowl of whoppers: [read the rest of this story]

Cross-posted on LIKELIHOOD OF CONFUSION(R), Ron Coleman’s blog about intellectual property law.

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