February 22, 2007, 9:39 am

As most people know, the NFL doesn't want you to use the word "Superbowl" when hosting a party, sale, event, etc, and they aggressively enforce their trademark on this term. In response, since all the country does in fact have parties, sales, events, etc. associated with the Superbowl, folks have adopted the euphemism 'the big game" in their communications.

I observed that this not only pointed out some of the silliness in our intellectual property laws, but also was counter-productive for the NFL -- shouldn't they want people talking about and holding events for the Superbowl? I suggested a simple licensing program that would raise a little money and probably work better for everyone:

The NFL needs to offer a one time use license each year for a bar or

other establishment to hold a Superbowl party and actually use

Superbowl in the promotion. The license would of course be

non-exclusive, and would carry a myriad of restrictions on how you use

the name, etc. The license could be purchased for a price that would

be cheap for a business, maybe $200, and could be purchased right over

the web. It would actually be easier, I think, to go after violators

because the NFL could point to the existence of a legal licensing

program the violator could easily have participated in. I would think

they could easily bring in a couple of million dollars, not to mention

saving them enforcement money and PR headaches.

The NFL has decided to go in a different direction. It is trying to trademark the term "the big game" so that term can't be used either (HT Overlawyered). I particularly liked this from the application:

Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "GAME" APART FROM THE MARK AS SHOWN

Jeez, why not? Who at the NFL is sleeping on the job here?

Well, that's what I get as a libertarian for trying to work within the system to make things incrementally better rather than going on one of my usual idealistic rants. So I officially withdraw my previous suggestion in favor of a new one: Trademarks should, at most, only give one the protection from someone else labeling a similar product with the trademarked name. By trademarking Jif, P&G gets protection from another company selling peanut butter under the same name in the US. However, any other use of Jif in communication should be entirely legal. If I communicate to people that I am having Jif party, that communication is protected under the first amendment and P&G can't shut down my party. If I want to put out a poster and sell it with Jif peanut butter labels and how they have changed over the past 100 years, I should have the right to do so. Ditto if I want to print bumper stickers that say "Jif sucks."

Similarly, the NFL can be legally protected from having another group host a football game (and if I am in a generous mood, maybe any type of sporting event) and calling it the Superbowl. And that is it. They should not be granted an exclusive government monopoly to use the word Superbowl, or more ludicrously, "the big game":

posters, calendars, trading cards, series

of non-fiction books relating to football; magazines relating to

football, newsletters relating to football,notepads, stickers, bumper

stickers, paper pennants; greeting cards; printed tickets to sports

games and events; pens and pencils, note paper, wrapping paper, paper

table cloths, paper napkins, printed paper party invitations, paper

gift cards; paper party decorations, collectible cards; collectible

card and memorabilia holders, souvenir programs for sports events,...toys and sporting goods, namely, plush toys, stuffed toy

animals, play figures, golf balls, footballs, sport balls, toy banks,

playing cards, Christmas tree ornaments...Men's, women's and children's apparel, namely T-shirts, fleece tops, caps, headwear

And don't even get me started on Pat Riley's "Threepeat."