Super Bowl or Super Brands?

The Philadelphia Inquirer reported last week that the NFL and Philadelphia Eagles cracked down on several Philadelphia artists and merchants for selling t-shirts and other apparel adorned with Eagles branding and artwork.

In case you were not aware, the Super Bowl was last night and the Philadelphia Eagles played the Kansas City Chiefs in Arizona. If you are waiting to watch the game, I will not spoil the outcome in this post.

As is often the case in anticipation of major sporting events, a number of people ride the wave of energy and passion for the teams involved. As a native San Antonian, I vividly remember countless Spurs playoff runs. I would drive around town and see apparel tents sprinkling street corners. The tents were filled with Spurs shirts and caps for sell. I suspect that many of those tents were selling clothing that was not licensed by the Spurs/NBA.

It seems a similar situation arose in Philadelphia last week (and likely, Kansas City). However, instead of tents on street corners, it appears the creatives and other merchants took to Instagram. Accounts promoting apparel and artwork with the words “Eagles” and “Go Birds” were targeted. Several of the accounts were shut down or suspended.

A number of the merchants interviewed conflated copyright and trademark law when arguing that they (the artists) created the designs used on the apparel. The merchants were of the belief that their creation of the artwork gave them immunity.

Federal trademark law gives trademark owners recourse against “[a]ny person who, on or in connection with any goods or services, . . . uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which . . . is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.” 15 U.S.C. § 1125(a). One of the goals of trademark law is to prevent businesses from riding on the coattails of others.

I am not here to say whether these specific products were likely to cause confusion or mistake as to an affiliation or association with the various Eagles trademarks. However, I can say that: (1) it is an issue the Eagles and NFL do not mess around with; and (2) authorship of the designs is not the dispositive issue. Of course, it seems likely that such an artist probably made the design based on a passion for the team and/or desire to ride the momentum of the team’s success. Potential customers are drawn to the products because they reference the Eagles.

Interestingly, the United States Court of Appeals for the Fifth Circuit (the federal appellate court for cases arising out of Texas, Louisiana, and Mississippi) previously held that several universities had established trademark rights in their team colors and that an apparel company’s use of the plaintiffs’ colors created a likelihood of confusion as to the source, affiliation, or sponsorship of the apparel. See Bd. of Supervisors for La. State Univ. Agric. & Mech. College v. Smack Apparel Co., 550 F.3d 465 (5th Cir. 2008).

As brand owners, the Eagles and the NFL must take appropriate steps to police (i.e., enforce) their trademark rights. Failure to do so could result in loss of those rights.

Regardless of who plays in the big game, fans should think twice before selling products with team colors, names, logos, etc.