Super Bowl 2013 week is here as the NFL pressures a fan over trademarks on the Harbowl name for the New Orleans game. Is the league bullying its fans?
The Super Bowl in New Orleans is historic for a number of reasons, the biggest being that the two coaches on the sidelines are brothers.
One Indiana football fan saw the potential in a brotherly matchup and put in a request to trademark the "Harbowl," name. But according to Darren Rovell at ESPN.com, the league is not too happy with the man and is pressuring him to give up the trademark, even though he might have had a legal right to go through with it.
According to ESPN.com, last year in February, Roy Fox said he spent more than $1,000 to file for the trademarks "Harbowl" and "Harbaugh Bowl," in anticipation of the possibility that Jim Harbaugh's San Francisco 49ers and John Harbaugh's Baltimore Ravens might eventually play in the title mathcup.
"Right before the conference championship games last year, I thought to myself, 'Can you imagine if these guys played each other?'" Fox said, according to ESPN.com. "If Pat Riley would go through the trouble of trademarking three-peat, why shouldn't I try this?"
Rovell writes that earlier this season in August, the NFL sent a note to Fox saying that it was concerned that his recent trademarks could easily be confused with the NFL's trademark of Super Bowl.
"There were two questions asked of him," NFL spokesman Brian McCarthy said. "Was he affiliated with any NFL teams? The answer was no. And was he in any way affiliated with the Harbaugh brothers? And that answer was no."
According to the follow-up correspondence provided to ESPN.com by Fox, the NFL encouraged Fox to abandon the marks, citing conflict with its mark. According to Fox, the league gave no remedy for the situation, while he then asked for reimbursement of the costs for filing the trademarks. Along with that request, he asked for a couple of Colts season tickets and an autographed photo of league commissioner Roger Goodell.
All requests were denied to Fox after he asked and later he said that the language from the league became more threatening, even bully-like, saying that the league would oppose his filing and seek to have him pay its legal bills. Eventually, Fox obliged to the league and sent the forms to the NFL, which were then sent to the U.S. Trademark and Patent Office. An online search shows that the trademarks were abandoned on Oct. 24, 2012.
The biggest question in the entire situation is whether the league has the legal right to Fox's trademarks is highly questionable, according to R. Polk Wagner, a professor at the University of Pennsylvania Law School, who teaches intellectual property.
"My view is that the league was being overly aggressive in their interpretation that his marks were confusingly similar to 'Super Bowl,'" Wagner said. "It's important to point out that, even if the NFL didn't do what they did, they still wouldn't have his trademark by now." He added that securing a mark takes well more than a year.
Wagner added that Fox can make shirts and other things with his phrases, but he cannot make money from anyone else making them.
Mark McKenna, an intellectual law professor at Notre Dame, agrees with Wagner.
"While there's no question that in this case the trademarks are referring to, in some sense, the Super Bowl, saying that meets the legal standard would be a stretch."
McKenna said that the league has been known to be very aggressive in cases like these and that "nine of out 10 times, the person backs away."
According to Rovell, neither the league or the Harbaugh's have trademarked anything prior to the game and that the league hasn't yet decided whether any of its licensees will be able to make Harbaugh-related merchandise for the game.
The NFL is the biggest and most popular sporting event in America and the power of the league is showing through here. Although the fan had somewhat good intentions, the league tried to crack down hard on him for trying to make money of something that "belongs" to them.
The idea of the "Harbowl" first came up when the two brothers played last Thanksgiving for the first time. Fox's idea of the trademark came from Pat Riley, who did the same to the term "Three-Peat," in order to make money off of shirts bearing that word after he took the Lakers to a third title.
According to Fox, he wasn't planning on emulating the Super Bowl logo, or using 49ers or Ravens logos. The leagues main objection was that the word "Harbowl" sounds like "Super Bowl."
"I was threatened to be taken to court," Fox said to the Washington Examiner, "and I just assumed I would lose, and I couldn't afford the court costs." So he abandoned the trademark.