Trademark, Right of Publicity and Super Bowl XLVII: HarBowl, Harbaugh Bowl, and Kaepernicking
The Super Bowl and the whirlwind of activities surrounding the big game never fail to deliver a season’s worth of intellectual property controversies.
This year, we have trademarks concerning San Francisco 49ers head coach Jim Harbaugh, Baltimore Ravens head coach John Harbaugh, and 49ers quarterback Colin Kaepernick making headlines. A few years ago, it was Lindsay Lohan taking on the E*Trade babies: http://rightofpublicity.com/lindsay-lohan-and-the-etrade-milkaholic-baby Before that, a controversy emerged over certain kinds of viewing parties for the game: http://rightofpublicity.com/pdf/articles/ibjnfl.pdf
It didn’t take long for clever terms such as “Harbowl” and “Harbaugh Bowl” to circulate once the Baltimore Ravens and the San Francisco 49ers, coached by John and Jim Harbaugh, respectively, were confirmed for Super Bowl XLVII. An Indiana resident had the same idea about a year ago when applying for a trademark registration on each of these terms. The terms took on added significance, of course, when the historic match-up of two brothers as head coaches squaring off against each other was confirmed for this year’s Super Bowl.
The NFL recently contacted the individual and urged him to abandon the marks, which the individual did. http://espn.go.com/nfl/playoffs/2012/story/_/id/8873809/2013-nfl-playoffs-nfl-pressures-fan-nix-harbowl-trademark When a trademark is applied for, the applicant must represent to the trademark office that the mark does not reference a living person, or that the applicant has that individual’s consent. Assuming the Harbaughs did not provide their consent to the individual’s trademark application last year, I believe this important safeguard represents one of the areas that the trademark could have been vulnerable.
The marks in question directly incorporate the last name of the Super Bowl coaches, Jim and John Harbaugh, but notice that they do not reference the NFL, the Ravens, the 49ers, or even the Super Bowl (directly, anyway). It would appear, then, that the persons or parties with standing to oppose these marks are Jim Harbaugh and John Harbaugh. But they probably have a few other matters to tend to at the moment.
Apparently the quarterback of the 49ers, Colin Kaepernick, has enough time to tend to a similar matter, as the NFL reports here: http://www.nfl.com/news/story/0ap1000000130278/article/colin-kaepernick-files-to-trademark-signature-pose
Colin Kaepernick has reportedly applied for a trademark for the word “Kaepernicking,” the instantly-popular reference to his touchdown celebration of flexing his arm and kissing his bicep. The NFL article on the above link makes the assumption that his trademark is for the gesture, and is rather critical of Kaepernick for seeking protection for a gesture which did not originate with Kaepernick. A critical but seemingly overlooked detail is that the trademark is for the term alone, which is based on his name. If Colin Kaepernick intends to use the term on products, as ownership of a trademark requires, then I expect he would have the right to secure this mark. It could be that the application is a defensive move to counteract infringing products and interlopers looking to cash in on Kaepernick’s rapid rise to stardom. Super Bowl XLVII will be only his tenth NFL start.
In all of the above examples, there also is a strong Right of Publicity element involved with the terms HarBowl, Harbaugh Bowl and Kaepernicking. Use of any of these terms without corresponding permission from Jim Harbaugh, John Harbaugh, or Colin Kaepernick would likely face Right of Publicity liability, as each of these Super Bowl XLVII competitors are unequivocally identifiable from the terms.
And we haven’t even seen the 2013 Super Bowl ads yet.