The first point is wrong. Retailers don't avoid saying "Super Bowl" because they think it's illegal to say the phrase, but because an advertisement is an offer to sell goods, and mentioning someone else's trademark in that context always creates some possibility of confusing people into thinking that the trademark-holder is the source of, or is authorizing or endorsing, the products being advertised. Creating that confusion about the origin of the product is a trademark violation.
Which would make it against the law and therefore illegal.
However, I think it's more accurate to say retailers don't mention the word Super Bowl because they are likely to be sued, irrespective of whether there is a credible claim, trademark or otherwise. I think in the vast majority of cases there is no such legitimate claim.
The same situation occurs with the Olympics. The IOC sues entities not because they are worried that someone is going to get confused about their brand but so they can charge those entities for using it in their promotions.
I believe the difference between illegal and unlawful was the difference between black and white listing. As in, illegal means a specific act is banned and unlawful means doing something outside of what was prescribed for that situation.
I don't think there's a large moral component to the respective use of each word, it's more of a mathematical concept. That said, odds are "DON'T DO THAT" is usually going to have a stronger moral force behind it than "YOU CAN ONLY DO IT THIS WAY" since people can come up with creative situations that weren't thought of at the time the law was written, and of course it varies based on the situation (people will probably be more pissy if you handle nuclear material in an unlawful way than if you jaywalk for instance).
I think the Olympics is slightly different, the IOC normally requires host countries to enact laws giving them special privileges for the event.
"Since the Sydney Games in 2000, the International Olympic Committee (IOC) has required bidding governments to commit to introducing bespoke legislation to offer a further layer of legal sanction."
http://www.theguardian.com/sport/2012/apr/13/olympics-2012-b...
"Expressions likely to be considered a breach of the rules would include any two of the following list: "Games, Two Thousand and Twelve, 2012, Twenty-Twelve". Using one of those words with London, medals, sponsors, summer, gold, silver or bronze is another likely breach."
The NFL own the RTM (eg serial number 78688906, 77182909, 76572704) and they use it to sell merchandise, TV broadcasts, and clothing respectively. The problem they face is that bowl is a generic term for a [sports] competition (cf http://www.merriam-webster.com/dictionary/bowl), and super is also standard language. You can't use trademarks to prevent a person describing something. Moreover when I say "buy my beer to drink whilst you watch the Super Bowl" I'm not using the trademark, I'm using a description of a sports event. If I said "buy my beer to drink whilst you wear your Super Bowl t-shirt" [assuming the owners have registered the mark for clothing] then I'm using the trademark, but I'm still using it to describe the TM owners goods, quite clearly, and so there's no confusion.
Clearly one could create confusion: "drink our Super Bowl beer" uses the term as if it were a trademark, and moreover as if it were the advertisers trademark.
Isn't "super bowl" just a description of a large sports event ; that would seems to lack the distinctiveness normally required of a trademark for anything that's normally related to sports events. The 2 live marks incorporating "super bowl" would make it appear the the USPTO consider use of the term separate to the NFL's mark as allowable [but I'm not sure they've been properly examined as yet].
> It's not 'possibility' it's 'likelihood' of confusion that is considered, amongst other factors
I used "possibility" deliberately. "Likelihood of confusion" is a factor in the legal test for trademark infringement (and generally the most important one). But the mere possibility of confusion might be enough to get a retailer to steer clear of a trademark as a practical rather than legal matter.
> Moreover when I say "buy my beer to drink whilst you watch the Super Bowl" I'm not using the trademark, I'm using a description of a sports event
I think you would also have a difficult time convincing a judge you were not talking about the NFL championship. Application of the law is rarely a "check the dictionary, guys, he's technically correct" thing. Especially when it comes to things like trademark violations (where it's about confusion to the general public)
>convincing a judge you were not talking about the NFL championship //
You don't need to. Trademark law doesn't prevent you from referring to people's products, nor their origin, it prevents you from selling your own products as if they were someone else's. The judge doesn't care [shouldn't!] that you're referring to the NFL Super Bowl TM - their concern is whether you're suggesting your product comes from the company that own the Super Bowl trademark (for a limited set of products).
Not even an imbecile would think that "buy X to use whilst you do Y" means that the people selling X own Y. "Buy our gloves for your skiing trip to France" - oh clearly that company owns France /s.
It's not about confusion of the general public, it's removed from that. Even if you can show that there is no actual confusion (surveys or whatnot) the judge can still decide there is a likelihood of it (and vice versa).
the other issue here is nominative use. Using trademarks as nouns can lead to dilution. This plays some into your "descriptive" complaint:
Isn't "super bowl" just a description of a large sports event ; that would seems to lack the distinctiveness normally required of a trademark for anything that's normally related to sports events.
But registration is prima facie evidence of validity. Quoting 15 USC 1507(b):
A certificate of registration of a mark upon the principal register provided by this Act shall be prima facie evidence of the validity of the registered mark and of the registration of the mark, of the registrant's ownership of the mark, and of the registrant's exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate, subject to any conditions or limitations stated in the certificate.
Surely that prima facie just means that courts should proceed with cases [that don't challenge the validity] assuming the mark to be valid once registered rather than that once registered the mark can not be challenged. For example genericisation causes a mark to become invalid despite that mark being registered - surely other objections work the same way.
What I was trying to intimate was that someone with big enough cajones could challenge the validity of the mark as being merely descriptive of some goods (TV broadcasts, say) rather than being a proper indicator of origin of goods/services.
I tried clicking on the Youtube link inside the Internet Archive to see the clip, but all I get is a message "Sorry for the interruption. We have been receiving a large volume of requests from your network. To continue with your YouTube experience, please enter the verification code below." and an archived sequence of re-captchas that take me nowhere.
We need more posts like this and some education to the public. Until people are educated about their rights, crap like the NFL disclaimer will pass for facts.
the public? Hell how about educating google/youtube who do take downs against videos that don't even infringe. I can imagine the fun they will have Monday with people uploading content
Google is legally obligated to do so by the DMCA's safe-harbor provision (otherwise they lose their safe-harbor status). The problem is with the people who request the takedowns.
In particular, the DMCA (17 USC 512) requires that, in the takedown notice, the sender must state that they have a "good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law", and anyone who "knowingly materially misrepresents under this section that material or activity is infringing" is liable for damages, both to the person who posted the not-actually-infringing content, and to the service provider in their act of taking down and reinstating the content.
This should be a safeguard, and a sufficiently enthusiastic legal team ought to be able to make the argument that there is a lot of knowing material misrepresentation going on. (It's hard for robots to have good-faith beliefs!) But I think very few people have been trying this argument in court. The EFF has been involved in a few, relatively tiny cases, which seem to have been successful, but nobody's been fighting this at scale.
Does Content ID exist because otherwise Google would run afoul of 17 USC 512(c)(1), that people could argue that Google is "aware of facts or circumstances from which infringing activity is apparent" or something, because even the general public knows that lots of YouTube videos use other people's music?
It doesn't seem like it's in Google's inherent engineering interest to build this system. Of course, that doesn't distinguish from "the law makes them" and "their business relationships make them", but the hypothesis that Google feels beholden to other companies needs a little more evidence.
For instance, Google's 2013 revenue was $50 billion, and $66 billion in 2014, and the entire music industry's 2013 revenue was $7 billion (2014 data isn't out yet). Placating the music industry doesn't seem like particularly well-directed greed.
No, they do do it because of the DCMA. The only reason they are provided safe harbor is by taking down the content upon request. If they didn't, they could potentially be liable for what they host.
But only for the same reason, so that they wouldn't be sued for hosting copyrighted material. The DMCA simply gives an official way to not have liability. The problem of overzealous litigation would still be there without the DMCA, unless we tackle that, then content providers are going to be quick to take things down so as to not be liable for hosting the content in the first place.
What I'm saying is that no, they won't do it to not harm their business relationship, they'll do it because otherwise, they'd be potentially sued for hosting copyrighted material without authorization.
If copyright rules were more lax, I'd doubt they'd be willing to cede nearly as much ground to NBC Universal and the like with Content ID and Content Verification Program.
I wish Google would take my videos down. When Google took over Youtube, and just needed to change the login to "I want it in My name Daddy!"; they screwed up somewhere because
I have an account I can't access. I can't remove my videos.
Yes, I went to the boards. Yes, I went to Google, but they
were too busy to take care of my trivial problem. By the way, this huge company doesn't seem to have a phone number--unless it's sales related? (My videos were were basically
a personal diary of things I need to do. One had a product brand name in it and took off. I always thought I could delete, so I never cared about how my videos looked.)
I wish Youtube would take my videos down? When Google couldn't
leave a decent login in system alone, and had to tie it to
"I want it in my name daddy!", I can't access my account to
delete my old videos. Yea, I tried all the stuff they recommended, but I can't access the videos. I contacted Google, but they didn't have a clue, and told me to go to the
boards. It was a very polite email. (I used Youtube as a personal diary of things I need to do, or projects that needed further work. One video had a product brand name in it and gained attention. I never thought they would be kidnaped? They are boring videos, but there's one I want off
for multiple reasons).
Be careful when taking legal advice from websites. Ethical rules would probably bar an attorney from writing such an article. (Advice to potentially out of jurisdiction and/or unknown clients, online advice is a tricky thing for bar associations.) I'm not saying that anything is incorrect, just that this sort of advice has consequences.
I would add to the article that while copyright may not limit such speech, contract law is a totally different matter. Check the fine print of you cable contract and/or your NFL package subscription. Even your superbowl tickets (tickets are contracts) will probably have limitations on how you can use NFL content and marks. Everyday citizens may perhaps use the term "super bowl", but someone in a contract with the NFL is not an everyday citizen. The NFL can always come after them for breech of contract, triggering liquidated damages clauses.
This is why many broadcasters avoid using NFL marks even where they have the right to. They have signed contracts in exchange for, perhaps, highlight reals, interview opportunities or other such content from the NFL. This then binds them to whatever speech-limiting terms the NFL may include.
> Be careful when taking legal advice from websites. Ethical rules would probably bar an attorney from writing such an article.
Ethical rules bar giving specific legal advice online, not generally describing the law. Tons and tons of attorneys post general advice about what you should and shouldn't do. To pick a random one that's the first hit on Google: http://www.bpmlegal.com/tmdodont.html.
General descriptions are fine, but saying that a particular person (ie "you" or "the public") is allowed to do something in relation to another (the NFL) boarders on specific advice. There is a difference between explaining the concept of "fair use" and saying that a particular use is fair.
On second thought I do think the article made a mistake. Sure, you can VHS the superbowl, but good luck doing that on a modern TV/cable setup. Recording an HD copy will likely involve bypassing encryption or other content protections. Saying that anyone can "tape" the event is an overstatement. Some "taping" is cool, other "taping" may violate any number of rules.
I don't see how specifying "you" and "the NFL" actually makes the advice specific, unless there are specific laws mentioning one of those specific parties. It's just as broad advice as saying that an individual can or cannot describe a copyrighted broadcast.
Great point. I also assume that, like every website I visit or product I buy, the NFL could bind me to a twenty-paragraph terms of service agreement just for watching their content.
And he's even listed at http://www.dcbar.org/. Thank you for pointing out that this claim was easily testable instead of letting people get by with "probably". :-)
This was informative! I always wondered about those statements at the beginning of the games, but never thought about them longer than the intro. I wonder though, even with everything in the article, why Stephen Colbert danced around the Super Bowl by mocking it with his Superb Owl coverage. Seems like the kinda guy/show that would have just used super bowl and exposed what this article is saying. Anyways, I find the super bowl obnoxious, but otherwise love football and most sports.
Re "Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited." - maybe someone should write to the NFL to ask their permission to talk about the game with their friends? Or send in a picture their kid drew and ask if they can put it on their fridge? What would they say?
Wait a minute. Aren't they really saying that you cannot use their accounts and descriptions of the game, which are protected by copyright, for unauthorized purposes? Everybody assumes they're telling you not to describe the event, but that's ludicrous. You simply can't repurpose their televised descriptions of the event.
I guess I can say that by reading this statement you are hereby prohibited from ever suing me for any reason in any court of law. That doesn't mean you can't still sue me though...
I feel like lying about legal obligations falls into the "yelling fire in a theater" exception. Especially because it's a commercial broadcast. I'd go so far as to say that it's no different than other contexts in which lying is illegal (insurance fraud, etc).
You are the expert and not me but isn't this really like a scorched earth technique? Essentially regardless of whether or how much of a leg that they have to stand on they come at this full force with all of their resources in order to make an example and to make potential adversaries quiver in their presence by their legal might. Even if they would lose and even if they know they are wrong. [1] And even if it costs them money to do so. It scares lesser adversaries and even greater adversaries are not going to advise clients "it's ok" because what do they stand to gain by doing so?
Your thoughts?
[1]Separately I remember as a kid seeing a sign at the horseback riding place that said "ride at our own risk". My dad said "oh they just do that to that you won't call a lawyer and start trouble I mean if they leave a trashcan in the way of the horse and you get hurt of course that means nothing....(was a long time ago but that was the gist). Seems similar to that in a much larger way.
I'm just talking about the general philosophical point of making it illegal to lie about peoples' legal rights (e.g. how it's illegal in many states to include unenforceable provisions in rental agreements). I don't think such a law would be an infringement on free speech.
The Leauge Office is; the teams aren't. The teams make all the money, so it doesn't matter too much.
But it still doesn't make much sense for even the League Office to be tax-exempt. It doesn't meet any of the general criteria of operation for the public good. It would be hard for the government to address, since that status has a lot of history and the league has a lot of money and goodwill behind it. And there's some complication with player pensions or something. The best scenario would be for the NFL to give it up voluntarily; it wouldn't be a high price to pay to remove a common criticism.
The "public good" criterion is for charitable organizations. The NFL League Office is a trade association that is tax exempt under a different set of criteria. (Of course you may disagree with trade association exemption criteria but they're pretty common--including within the software industry--as well as things like chambers of commerce. Or you may object to the specific exemption for sports leagues that's in the law.)
Update: Keep down-voting all you want. The Forbes article is weak in classifying all of the NFL as one entity. The below link gives a good overview of the structure of the NFL and it's tax exceptions. I'm glad I read it. That said the NFL still shouldn't be a non-profit organization.
http://www.todayifoundout.com/index.php/2014/01/nfl-tax-exem...
The NFL is an industry association; it exists to further the health and welfare of its industry (American football). Furthermore, the NFL doesn't take in revenue at all; it runs at an operating loss. Instead, NFL Ventures (which is a for-profit corporation) collects all monies related to the league and passes that money along--less a (taxed) retained cushion--to the teams and the teams' ownership, which are likewise taxed as per normal for-profit entities.
So, yes, your claim is misleading and your defense of it worse.
Almost. They exist to promote their part of the industry. They don't exist to support football generally and take many steps to put down possibly competitive leagues, such as using tricks to forbid players from moving to other leagues, even after their NFL careers are over. (Most commonly via delayed salary benefits that end should the player start with a non-approved league or if they speak out against the NFL.)
The worst practitioner of these practices in my opinion is Cusip Global Services.
They say you can't label column in your database "Cusip" without signing a license agreement with them. Furthermore, such license agreements make you force similar licenses upon all your business partners.
as to forcing other business partners to assert that they also are Cusip license holders, I have seen and been asked to sign agreements with such clauses attached.
They don't say anything is illegal, they say it is 'prohibited'. They don't say who it is prohibited by, and since it's clearly not the federal government you have to assume it's just prohibited by the NFL itself. Of course nobody has to listen to a goddamn thing the NFL says, so why include the message? It's likely a CYA thing on their part, since it gives them the power to essentially disown any event or analysis that is related to their broadcast.
Also worth noting is how the NFL is obsessed with law enforcement culture. Lots of the league employees are former police and FBI, so there is a good chance they actually think they have some kind of authority over what a person does or says in relation to the NFL.
The NFL holds copyright in its broadcasts of the games, and copyright law gives the copyright owner the exclusive right of public performance and public display. However, the Copyright Act provides an exemption allowing for "performances" of radio or broadcast/cable/satellite TV without violating copyright.
There are some fairly obvious restrictions to the exemption (for example, you can't directly charge people to see the broadcast), but also some surprisingly specific ones, and there's where you start getting into TV screen sizes:
> if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than one audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space
(Note: the above are rules for bars/restaurants. There are different rules for other establishments, and much more permissive ones designed to cover private homes and parties)
Or its because the advertisers want to get more than one use out of the ad?
The Super Bowl is not the only "big game". In fact its not usually even a particularly great game, and its never a rivalry. So saying "Big Game" instead of "Super Bowl" means they can use the ad again, and maybe even for another sport!
You're saying there is no other event that Dorito's could possibly use an ad about "The Big Game" for? That's incorrect, and that's my point.
Why make an ad you can only use once, when you could easily tweak it and be able to reuse it? Like you said, its not like anyone won't know you mean the Super Bowl, when you're talking about the big game on Super Bowl weekend.
Can you show me any ad, from any time, for any product, that refers to "the big game" meaning the superbowl and then, after tweaks, refers to some other big game?
Businesses don't say "big game" because saying Super Bowl is illegal. They say it because even if they're legally in the right, the NFL could easily bankrupt them in court, and it's not worth the risk.
Most americans don't even have the ability to record the show. I do, and might if I feel like it, but to be honest it's not worth the disk space. It's a live event so it's just not exciting after the fact.
Lots of people care about the Super Bowl. It'll be the most watched TV program of the year. Does that answer your question, or was it intended to be rhetorical?
I don't care about it in the least but I still thought the article was interesting. It's OK if you don't like sports, but don't think it somehow makes you superior.
Yep. I enjoy watching football well enough, but the rampant consumerism around the Super Bowl leaves a bad taste in my mouth. I’ll go to a game day party mainly to hang out with my friends and eat snacks.
Millions upon millions of people. Tens of millions actually. Highest ever was ~111 million people. So, sorry, but you don't represent the majority here, and we don't care what your opinions on football are.
111 million people is not the majority of the U.S., much less the world. Compare what the majority considers real football: the world cup (500 million to 1 billion?) Or the moon landing (14% of world population at the time or 530 million). http://en.m.wikipedia.org/wiki/List_of_most_watched_televisi...
So you're basically saying that you have to beat the world cup or the moon landing in order to say that somone cares about [event]? Seems a bit of a high bar to me.
Whereas if you're just talking about the word 'majority', it's interesting that you consider 14% to be a majority.
I didn't literally mean to say that a majority of the country watches football. Even if I had (incorrectly), It wouldn't change the fact that it's a huge portion of the country watching the same thing at the same time. And as for "real" football, that's really neither here nor there.
I'm sure there are many things mentioned on HN that you do not watch or otherwise participate in. This is the only one you have chosen to comment on, so it would appear that you care about it.
