All regular readers here will need is to see a headline that includes both the word “trademark” and the NFL to get their eyes rolling. The NFL is notorious in its jealous protection of its intellectual property. In fact, the league goes much further than your everyday trademark bully, chiefly by pretending it has trademark rights that it absolutely does not have. This usually rears its head in the run up to the Super Bowl.
But the other game of pretend the NFL likes to play is one in which it pretends to not know that Fair Use exists. That can be seen most recently in the league going after a seller or parody NY Jets gear on his Shopify site, getting the whole store taken down by asserting trademark infringement.
One of the NFL’s latest victims is Zach Berger, a New Yorker who sells merchandise for frustrated New York Jets fans through a website called Same Old Jets Store. Most of Berger’s products feature a parody version of the Jets’ logo, modified to say “SAME OLD JETS”—a phrase that’s been used for decades to criticize the team’s performance and express fans’ sense of inevitable disappointment. His other products include “MAKE THE JETS GREAT AGAIN” hats and clothing that says “SELL THE TEAM” in a font similar to one used on Jets merchandise.
The NFL got in touch with Shopify and claimed that every single product on the site violated its trademark rights. The notice that was sent was essentially boilerplate material, asserting claims that the league and teams own all rights to all trademarks for those teams. In addition, the league claimed that the general public would be confused into thinking that the NFL or the Jets were the ones that were selling this gear.
Think about that for a moment. The NFL asserted that a store selling merchandise that makes fun of one of its teams would be confused with officially licensed gear. As the EFF link notes, one of the phrases on this merchandise is “SELL THE TEAM.” And the NFL says the public is going to think that’s an officially licensed product. These items are clear parody and fall under the realm of Fair Use.
But there’s a reason that trademark bullying works and it’s because platforms like Shopify always, always, always err on the side of the rightsholder.
Disappointingly, Shopify responded to the infringement complaint by taking down Berger’s listings, without questioning the NFL’s absurd claims or giving Berger a chance to respond. Even worse, when Berger contacted Shopify and explained why the NFL’s complaint was baseless, Shopify simply stated that it had forwarded Berger’s message to the NFL and would not restore the listings “until this matter is resolved between the parties.” More than a week later, the NFL has yet to respond—which isn’t surprising, since Shopify already did exactly what the NFL wanted.
And so Berger’s legit store remains down, all because the NFL would rather play pretend and be a trademark bully than withstand the slightest bit of criticism.
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