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January 30, 2013

NFL Sacks Football Fan’s Effort to Trademark ‘Harbowl’

By: Ifrah Law

When the Baltimore Ravens and San Francisco 49ers won their NFL conference championship games, a Super Bowl matchup emerged with a great storyline — the opposing head coaches are brothers. An interesting legal question has also developed regarding the right to trademarks associated with the match-up between brothers.

Last February, Roy Fox, a football fan in Indiana, said he spent more than $1,000 to file for the trademarks “Harbowl” and “Harbaugh Bowl” in anticipation that Jim Harbaugh’s San Francisco 49ers and John Harbaugh’s Baltimore Ravens might meet in the Super Bowl. Fox said he remembered how former Los Angeles Lakers Coach Pat Riley made money by trademarking the term “Three-Peat” and thought that if the brothers were to meet in the Super Bowl he could make some money selling some T-shirts.

Fox applied for a trademark in February. In July, the United States Patent and Trademark Office (USPTO) published the trademark request, which is the standard procedure used by the office to see if anyone is opposed to a request.

In August, the NFL got the USPTO to extend the period of time allowed for filing an objection. At the same time, the NFL sent Fox a note saying that it was concerned that his recent trademarks could be easily confused with the NFL’s trademark of the Super Bowl or that “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 or its Member Clubs.”

The NFL continued to push Fox to drop his trademark application and began using more aggressive language in its correspondence.

“If you are still interested in resolving this matter amicably and abandoning your trademark application, please contact me as soon as possible,” NFL Assistant Counsel Delores DiBella wrote to Mr. Fox in October. She warned that otherwise, the NFL “will be forced to file an opposition proceeding and to seek the recoupment of our costs from you.”

Fox said he made a few requests of the league including a reimbursement of money he spent on the trademark applications, Indianapolis Colts tickets, and an autographed picture of NFL Commissioner Roger Goodell. Fox said that all of his requests were denied. Fox said he then dropped the trademark applications in October when additional correspondence from the league became more threatening and because he did not want to go to court to fight the NFL.

Trademark law protects a trademark owner’s exclusive right to use a trademark when use of the mark by another would be likely to cause consumer confusion as to the source or origin of the goods.

In order for the NFL to prevail on a challenge to Fox’s trademark, the league would have to show that the use of the “Harbowl” or “Harbaugh Bowl” mark would “cause a likelihood of confusion” as to the affiliation, connection or association of the mark with the marks owned by the NFL, or as to the origin, sponsorship, or approval of defendant’s goods services or commercial activities. Generally speaking, a “likelihood of confusion” exists when consumers viewing the allegedly infringing mark would probably assume the product or service it represents is associated with the source of a different product or service identified with a similar mark.

The NFL’s strong-arm tactics were successful in getting Fox to abandon his trademark application. The threat of a lengthy and costly legal battle is often enough to deter people from pursuing trademarks that another trademark owner – in this case the NFL – considers to be possibly infringing, even if the USPTO or a court may not ultimately agree.

It is unclear who would have prevailed had this case been contested, but it seems unlikely that the NFL ultimately would have prevailed. While it is clear in some sense, with the benefit of knowing now that the Ravens and 49ers are in the championship game, that “Harbowl” or “Harbaugh Bowl” is referring to the “Super Bowl” (which is a trademark owned by the NFL), it likely would not have risen to the “likelihood of confusion” level that would be needed for the NFL to prevail before the USPTO or in court.