Low barriers to entry in certain businesses breed rapid response and quick-to-market products that capitalize on “in the moment” mania.  Often the in-the-moment-mania products derive from long standing famous trademarks owned by aggressive trademark enforcers.  Buyers should be beware of these types of aggressive trademark enforcers prior to making costly investments.

Here is a hint. The National Football League is one of them.

An enterprising sports fan who almost a year ago saw an investment opportunity in the term “HarBowl” recently got more than he bargained for when the NFL’s lawyers came knocking.

The term “HarBowl” emerged into popular sports conversation around Thanksgiving of 2011, when brothers John and Jim Harbaugh became the first siblings in NFL history to lead their teams against one another as head coaches. The first “HarBowl” was a media frenzy of a family affair staged on national television during one of the country’s favorite family meals. Older brother John’s Baltimore Ravens won the inaugural “HarBowl”, yet Indiana resident Roy Fox remained interested in the term even after the final whistle had blown.

The two teams would go on to have very successful seasons before each fell a game short of meeting once again in the only scenario possible that year; the Super Bowl. Despite the super rematch of the “HarBowl” not coming to fruition, Fox liked his chances of the possibility enough to invest in filing for a trademark in hopes of eventually profiting from the phrase.

He filed trademarks for “Harbowl” and “Harbaugh Bowl” on February 21, 2012. The marks, filed as intent-to-use, were allowed and published for opposition.

The NFL contacted Fox in August of 2012 stating concern that his recent trademarks could easily be confused with the NFL’s trademark of the term “Super Bowl.” It was reported the NFL encouraged Fox to abandon the marks shortly thereafter, which he did.

According to ESPN, the league refused to provide Fox with any remedy for his investment in the marks when he asked the league to reimburse him for his costs to file for the trademarks. He was also reported to have requested several other simple consolations such as season tickets and an autographed photo of league commissioner Roger Goodell.

Fox reported that instead of honoring his requests, the NFL chose to aggressively shift direction with its efforts and suggested that not only would the league oppose his filings, but they would also seek to have him pay its legal bills. Fox would eventually fold his hand. At least three more similar marks have been filed over the past month. They will likely meet the same fate.

The legal issue is not that Fox necessarily had a losing hand. The issue is that the NFL holds a lot more chips.

Many would argue that the NFL’s claim is not a legally strong one. “HarBowl” is certainly no less confusing to Super Bowl than other trademarked phrases such as “Sugar Bowl” and “Lingerie Bowl” which are also used to describe football games.

In reality, “HarBowl” is probably no less confusing than “cereal bowl” or “toilet bowl.”

Legal professionals who have publicly commented on the case have noted that the odds of a jury agreeing that the two phrases are confusingly similar are relatively poor.   However, mere likelihood of confusion is only one aspect of the legal issues – Super Bowl is unquestionably a world famous trademark.  Famous trademarks enjoy a much wider berth – even non confusing but tarnishing or blurring acts can dilute a famous trademark.

The NFL basically smoked Fox out of the hole by signaling their intention to be aggressive in pursuit to stop him. The NFL is an organization with essentially unlimited financial resources. Mr. Fox presumably does not have the type of financial capabilities as a multibillion dollar company. As a result, the question became – are the trademarks financially worthwhile to combat a lawsuit that could potentially cost six figures?  Fox made the reasonable decision that no amount of revenue the trademarks could yield would justify that investment.

The moral of the story is an important message for anyone who considers pursuing a low barrier to entry business that expects to profit from the fame or notoriety of someone else or someone else’s trademarks, particularly famous trademarks.   Legal review and anticipation of probable legal action is part of the going-into-business decision process.   At the end of the day, legal costs in high risk activities should be considered as possibly significant line items on a budget just like any other expense. If the potential return of the expense is not equitable to the potential cost, it may not be a wise investment of resources.

For Fox, a few thousand dollars in filing costs for trademarks may have been worth the prospect of making some money off of clothing sales should the Harbaugh brothers inevitably meet in the Super Bowl. However, the cost of defending those trademarks against a force such as the NFL was not worth the legal bills.

For more information on trademark law, contact Mike Oliver or Kimberly Grimsley.