In February 2012, while watching football, Indiana resident Roy Fox pondered the idea of two siblings coaching opposite teams in the Super Bowl. Not unlike the “Manning Bowl,” when brother quarterbacks Peyton and Eli Manning competed in the big game, Fox conceived of a “Harbowl,” where sibling coaches John and Jim Harbaugh might lead opposing teams in the Super Bowl championship. Fox filed an intent to use trademark application at the USPTO for the terms “Harbowl” and “Harbaughbowl.”
In August 2012, the NFL filed an opposition to Fox’s application and began to pressure Fox to abandon his trademarks. By October, Fox had given in to their demands and dropped the application, concerned that he would be taken to court by the NFL and saddled with high legal bills after defending his trademark.
Last week, the Baltimore Ravens, led by head coach John Harbaugh, won the AFC championship. On February 3, 2013, at the Super Bowl, they will face the San Francisco 49ers, couched by Jim Harbaugh. Fox’s conception of a “Harbowl” is now a reality, but, because he abandoned his trademark application, Fox will not be profiting from the sale of t-shirts and hats and other memorabilia emblazoned with the phrase.
A football fan living in Indiana is no match for the powerful NFL legal department. The Super Bowl is the NFL’s biggest event of the season, when commercial air time during the game averages $3.5 million for a 30 second spot. The NFL has always zealously defended its intellectual property, and Fox’s marks related to the Harbaugh brothers are no different.
Would the NFL have been successful in opposing the trademarks if Fox hadn’t abandoned his application?
Fox’s position is interesting because a trademark cannot reference a living person without that person’s consent. If we assume the Harbaugh brothers did not consent to Fox’s application, it appears the Harbaughs may have had standing to oppose the trademarks. The NFL could not successfully make a similar argument; the marks don’t directly reference the NFL or the Super Bowl, so the fact that the trademark references living people does not support the NFL’s position.
The NFL would have to prove that “Harbowl” and “Super Bowl” create a “likelihood of confusion,” which is the standard for proving trademark infringement. The purpose of this analysis is to protect consumers from being confused or mistaken about a product or service. While a court would weigh several factors in determining whether the marks are confusingly similar, at the outset, there is a real question whether most football fans would confuse “Harbowl” or “Harbaughbowl” with the Super Bowl.
Predicting the outcome of the actual Super Bowl is a perhaps a bit easier, Baltimore Ravens over the San Francisco 49ers.
VolpeKoenig