MarkIt to Market® – Recent Updates on the NFL and Intellectual Property | Sterne, Kessler, Goldstein & Fox P.L.L.C.
With three games on Thanksgiving Day and another on Black Friday, the NFL was likely a predominant discussion point in many households this past holiday weekend. However, these discussions were probably focused on the actual games—or maybe the love story between Taylor Swift and Travis Kelce—and not the recent efforts by NFL teams to secure and promote their trademark rights. Luckily, this article will bring our readers up to speed on all the recent trademark drama involving the NFL.
Philadelphia Eagles Seek to Trademark BROTHERLY SHOVE
At 10-1, the Philadelphia Eagles are the best team in football right now. A large reason for their success is their ability to convert on third and short through a play coined the “brotherly shove.” On October 10, 2023, the Philadelphia Eagles filed an application to register the trademark BROTHERLY SHOVE in connection with clothing items.
Shortly thereafter – perhaps in anticipation/preparation for a potential Super Bowl showing, another company filed an application for the mark BROTHERLY SHOVE, and an individual filed an application for the mark CITY OF BROTHERLY SHOVE, both for related goods and services.
While the marks are still being examined and the jury is out on whether the U.S. Patent and Trademark Office (USPTO) would consider the marks to be confusingly similar, the Philadelphia Eagles are in a good spot priority-wise, as they were the first to file their application.
Tennessee Titans Protect Houston Oilers Throwback Jerseys
Earlier this fall, the NFL and the Tennessee Titans took the field on offense to protect its legacy Houston Oilers football jerseys. According to the Houston Chronicle, the Titans sent a cease and desist letter to the University of Houston demanding that it cease all use of their Houston Oiler’s inspired uniforms and refrain from selling any similar merchandise.
The letter was prompted by the University of Houston Cougars football team wearing baby-blue and red uniforms in homage to the former local NFL team during a September 2, 2023 game. The NFL stated that it was “disappointed to learn that the Houston Cougars made unauthorized use of the Oilers Trade Dress in a manner that is likely to cause consumers to believe that the Houston Cougars are associated with, or are an authorized licensee of, the NFL and the Titans.”
The Tennessee Titans have been known to wear the throwback uniforms themselves, most recently on October 29, 2023, in a home game against the Atlanta Falcons, and are scheduled to do so again on December 17, 2023, against the Houston Texans.
NFL Seeks to Combat Live-Streaming of Its Games
The NFL, UFC, and the NBA, submitted a comment to the USPTO regarding its request for feedback on ways to develop future anti-counterfeiting and antipiracy strategies. The NFL noted that under the current DMCA, when online service providers are informed of an infringement, they are required to take it down “expeditiously.” However, this can often take hours, and when games are live-streamed, the game is already over by the time the takedown is implemented.
To better address this issue, the NFL, UFC, and NBA propose clarifying that when it comes to live content, “expeditiously” means “instantaneously or near-instantaneously.”
These recent actions by the NFL and its teams demonstrate the value of intellectual property rights in sports and the necessity of taking creative and proactive action to protect it.
