No Fun League Hits Stillers Fans

The P-G reports this morning on NFL henchmen tracking down and seizing "counterfeit" Big Ben Roethlisberger merchandise. This sounds like run-of-the-mill legal stuff, but it's not. The idea that sports teams have the "exclusive" legal right to sell team merchandise is a pretty new one in the trademark world, and it's controversial enough that a case involving a man who wanted to sell "unauthorized" scarves, etc. to supporters of the Arsenal Football Club (part of the English Premier Division) went all the way to the European Court of Justice last year. The ECJ more or less ruled for the team (more or less because the ECJ doesn't work quite the way the U.S. Supreme Court works), but when the case was returned later to the English courts, the judge there did somersaults to rule against the team -- because in terms of traditional trademark law, the team has no case.

U.S. law is just different enough that no one is likely to step in and object to the NFL's tactics. But there is a problem, and the problem is that the "NFL" and "National Football League" trademarks (technically, they are "service marks") refer to football. (The original Trademark Office registration for "National Football League" describes the services covered as "promoting the interests of member football clubs, scheduling games, and promoting interest in football.") I can't start a football league and call it "National Football League"; I have to get the NFL's permission.

Shirts, hats, scarves, etc. are, traditionally, a different matter. McDonald's is a trademark for hamburgers because it tells you what quality to expect (McDonald's quality) when you drive through the Golden Arches. NFL is a trademark for football because it tells you what quality to expect when you go to Heinz Field or listen to Bill, Myron, and Tunch. Traditionally, the NFL hasn't been in the business of selling shirts. Shirts, etc. are ancillary to the game. They're part of being a supporter of the team, not a part of running a team. Look at it this way: When you buy a Big Ben jersey, do you buy it thinking, "I got a great jersey because I know it came from those trustworthy NFL factories"? I doubt it. You buy it because you love your team, or that player, or your city, or all of the above. It's a sign of appreciation and loyalty, not a sign of a certain level of quality.

Why does any of this matter? It matters twice: First, it matters because driving t-shirt vendors out of business drives up the price of being a fan. If all you can buy are "authorized" NFL jerseys, then you can be sure that the "authorized" jerseys will cost you an arm and a leg. That's bad for fans, and it's especially bad for kids who want to be fans. Second, it matters because it allows the criminal justice system to get righteous on behalf of a rich organization -- the NFL -- that keeps most of the money from merchandise sales and that is obviously capable of handling its own affairs in this area. The P-G quotes local U.S. Attorney Mary Beth Buchanan: "'The crime,' she said, 'is actually a very serious one.' Penalties range from a fine of up to $2 million and 10 years in prison for the first offense to $5 million and 20 years in prison for the second offense." Don't federal crime-fighters have, like, terrorists to catch? Why are they hassling t-shirt vendors in the Strip?

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Pittsblog 2.0 is written by Mike Madison, a law professor at the University of Pittsburgh. Send email to michael.j.madison[at]gmail.com. Mike also blogs at Madisonian.net, on law and technology. Chris Briem of Null Space drops by from time to time.

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