Wait, the Colts are in Indianapolis??? :eek:
What about Baltimore?
Baltimore. Colts. Those words were meant to go together! Like Green Bay and Packers! Like St. Louis and Cardinals! Like Boston and Patriots! Like Los Angeles and Rams!
Like California and Angels!
Like Los Angeles and Dodgers! <still mad> And Lakers! <don’t care as much>
This is from the UK, but I think the McLibel case is the most well-known example of Big Corp sues Little Guy
Also, IANAL but from what I’ve read, the loser paying legal costs of the winner is far more common in Canada; which is why we are substantially less litiginous. I recall hearing about some major class action suit that folded when the class could not come up with a bond to guarantee they could pay the defendants if they lost the case. In that situation, it was hundreds of thousands of dollars - as to be expected in a big class action suit.
(Another reason for less lawsuits - universal health care. Since the provinces cover most medical expenses, there are no big expensive medical bills to sue for. Plus, “pain and suffering” is not an open-ended jackpot category to sue for in Canada.)
The “English Rule” (loser pays fees/costs) is the norm in most of the common law world. The US is a definite outlier in that regard, which is perhaps the reason we’re so litigious.
How liberal is the interpretation of what a trademark covers? Harbowl or Harbaugh Bowl no more dilutes the trademark Super Bowl than any newly created college bowl game such as the Roto-Rooter Toilet Bowl.
How close does a name have to be to infringe on a trademark? If I own a bar that has the Supper Bowl on the day of the big game, does that infringe on the trademark (looks really close to Super Bowl) or is it protected because it is not the same word? And how would that cause confusion? I hope most people would realize my Supper Bowl does not feature the top 2 NFL teams playing in the dining area.
I’m confused. Did the guy in the story already have the trademark registered? If so, then assuming it was registered correctly as a trademark re: sporting events and promotion then how could he be forced to give it up. So if the guy actually had a registered trademark, how stupid would it be for him to just give it up? Isn’t there a presumption that if you own a registered trademark that it is legal to use it unless committing fraud*?
The key to trademark infringement claims is (1) whether the infringer has a valid, protectable interest in use of the mark, and if so, (2) the potential to confuse the public. If the answer to (1) is no there is no need to move onto the second step.
In the case of the Harbaugh Bowl mark, the whole point is to confuse the public (even assuming the guy actually uses the mark for some commercial purpose). If the guy’s name was Harbaugh and he made toilets or somesuch, he would have a legitimate claim that he established his right to use the mark via his longstanding business practice - or, more easily, simply establishing that he made commercial use of the mark first (since, in this case, the mark is inherently distinguishable). This is called the priority of use test.
Registration of a trademark is really kind of meaningless, AFAIK. It just makes it easier for others to avoid infringement.
So it seems he didn’t have to abandon a trademark but rather his application for a trademark but assuming he persevered the above question stands.
But it does raise a new question: assuming that I apply for the trademark MacDonald’s to sell hamburger but don’t actually use it prior to being approved, what standing would McDonalds have for suing me (or threatening to sue) if I don’t abandon the application? Isn’t that illegal intimidation? Wouldn’t the issue be left up to the trademark office?
Maybe Ascenray can answer the first part. I have no idea.
As far as the second part, the Patent and Trademark Office is a federal agency and can adjudicate only matters relating to “public rights” - that is, claims by a person against the government, or vice versa. A dispute between two persons regarding a trademark requires an adjudication of private rights, which can only be done by the courts.
Wow. You’re almost 30 years out of date.
You mean like Chicago Cardinals (1920-59), Cleveland Rams (1936-1946), and Los Angeles Angels (1892-1964)?
It depends. There are no bright lines.
Infringement is not just about confusion, it’s also about free-riding and implied sponsorship. Your bar has no right to latch on to the Super Bowl in order to promote its services.
So far as I know, he had filed an application, but no registration had yet been issued.
Part of registering a trademark “correctly” is proving that you actually have legitimate rights in a trademark. Trademark rights do not originate in registration. Trademark rights exist independently of it.
Even if Fox had somehow managed to obtain a registration, the NFL could still seek to have the registration cancelled for multiple reasons, including:
A trademark registration is not in itself a right or a piece of intellectual property. It’s the underlying trademark itself that is the property right. The registration is just one bit of evidence that such a property right might exist. But if it is shown by other means that no trademark right exists, then your registration is nothing but a meaningless piece of paper, and, as I said before, the senior user can get your registration cancelled anyway.
And, also, everything that Really Not All That Bright said.
What question was that? I’ve lost the thread.
No, it isn’t illegal intimidation. McDonald’s can bring a claim for your application to be rejected by the Patent and Trademark Office. If the application is still in process, the usual way would be for McDonald’s to file a petition to oppose your application to be adjudicated by the trademark examiner (and on appeal to the Trademark Trial and Appeal Board). If the registration has already been issued, then McDonald’s can file a petition for cancellation with the T.T.A.B. There are also optional routes through the courts.
Also note that trademark law exists at both the federal and state levels, so actions can also be brought in state courts.
But that’s not what the NFL did. They threatened to sue if the application wasn’t withdrawn. What standing would the NFL have to sue and how can they force me to abandon an application considering it can be dealt with as part of the public comments part of the application?
I wouldn’t read too much into the legal reporting of a general interest newspaper. Having said that, I assume the NFL meant they would sue if the trademark application was granted.
A pizza place cannot advertise “Buy Our Superbowl Pary Pack” because the public might think it implies a sponsorship deal where none exists - since “Superbowl” is trademarked and the association with the big game is obvious; and the NFL does all kinds of sponsorship deals with a lot of different businesses. Odds are the case woudl result in an NFL win on the infringement. Places use “the big game” or similar wording instead to save on legal fees.
Similarly, any use of “Harbowl” and Harbaugh Bowl" to refer to the Superbowl. The NFL could argue the public might be confused that the “Bowl” might imply that there is a connection (It obviously refers to the Superbowl) Similarly, the Harbaughs or the NFL Players Assoc. probably hold the rights to use that name in connection with NFL sports, so there’s an equally infringing issue there.
I assume the gist of the legal issue is this:
There is no direct, specific conflict (name is not taken) so odds are the guy might get the trademark registered.
The dispute -whether there is a confusion - is up to the courts, so the Trademark Office can’t decide that case in advance - they would give the trademark.
I assume the NFL is suggesting the moment the trademark is granted, they would file for a declaratory judgement (?) that there is a confusion and the trademark is invalid.
The NFL is likely making sure everyone knows they won’t put up with this crap and won’t pay such people to simply go away.
I suspect if I tried to trademark Coco-Coolio for a drink, I would get a similar and lively reaction from some party who thought there might be confusion. IIRC it was Virgin in the UK who got nailed for selling a Virgin Cola in a red-and-white can as likely to “cause confusion between brands”.
To be honest, it’s very difficult to figure out exactly what the NFL did or said in this situation, because the general press reports use extremely imprecise and frequently inaccurate language. And since it seems that it never got to the point of anyone actually filing a claim, there’s nothing in the public record regarding what the NFL thinks it could have done.
One thing the NFL probably could do is file a claim in federal court under the Declaratory Judgment Act, and ask a court to declare that Fox has no legitimate trademark rights in the term “Harbowl” or “Harbaugh Bowl.”
If Fox actually sold any T-shirts, then the full range of trademark actions would be available to the NFL and they could tack on an opposition claim to that.
No. The application for a trademark gets published and people get the opportunity to oppose the applcation. The US Patent and Trademark office has a system to handle the opposition and decide whether the application should be granted
This is not necessarily correct. The Patent and Trademark Office is not supposed to issue registrations on trademarks that conflict with senior users’ rights. But they might not be aware at the time of examination that such a senior user exists–that’s when a registration might be erroneously issued.
No, as I said above, that’s not correct. The PTO must examine the applications and determine, among other things that, the applicant has legitimate trademark rights, that the applicant’s use does not interfere with a senior user’s rights, etc.
Why wouldn’t the NFL or the Harbaugh coaches start with a opposition with the trademark examiner?
Well, perhaps the application hasn’t yet been published for opposition.
And, anyway, trying to resolve problems before they become official is routine – legal actions almost never start with a filing – it’s almost always considered better to make the problem go away before getting a court or other tribunal involved.
The application was filed on February 14, 2012; it was published for opposition on July 10, 2012; and it was abandoned on October 24, 2012.
I’ve read suggestions in some posts that no one could stop the application and that the USPTO lacks authority to decide whether Fox should get a trademark. We should be clear that the USPTO allows people like the NFL to oppose trademark applications and that the USPTO has the authority to resolve the opposition. A courtroom isn’t the first place the dispute can be involved.
I think we can make a reasoned guess that the published application came to the NFL’s attention, and they responded by contacting Mr. Fox to suggest he abandon his application. (His address is part of the application.)
Okay.
But the question seemed to be why didn’t they just file an opposition. The reason is that parties often try to make a problem go away before having to file something. There’s nothing wrong or unusual about that.