Support your football team but proceed with caution
By Glenn D. Bellamy
After a more than three-decade dry spell, Cincinnati has caught Who-Dey-fever and is ready to show it! So, questions have been asked about when one can and can’t use the BENGALS name or logo trademark or refer to the “big game,” either personally or in their business.
The SUPER BOWL trademark is owned by the National Football League, and they police it strictly. There may be uses of this term referring to the game that are legal, but beyond sending an invitation to friends for a “Super Bowl Party,” I wouldn’t touch it.
The Cincinnati Bengals organization owns the BENGALS name and logo, as well as the trademark WHO DEY. Lots of us want to show our support and enthusiasm for “our” team. So, what can and can’t we legally do with these words or logos? I’ll try to explain the intersection of legal and practical with some examples and analysis you can apply.
First, there are some clear no-no’s:
· Putting the word or logo on something you sell or give away as a promotion
· Using the word or logo in a way that promotes your business
· Using the word or logo in a way that implies you were given permission to do so or any connection with the football team.
· Using the word or logo in an advertisement
And then there are some easy OK’s:
· Fans attending a game, rally, or party with homemade BENGALS logo or WHO DEY! signs?
No problem. But how do I navigate the “gray area” in between?
The law regulates “use” of a trademark “in commerce.” But this is not solely determined by whether you are directly making money from it. “Commerce” is defined broadly to include many things that don’t involve revenue but still benefit your business.
The key question is whether your use could be seen as an implied endorsement or approval by the Bengals or the NFL. Companies pay big money to use the team trademarks to promote their business or organization. Others pay even more for the right to be the “official” chili, bank, or airline of a team. You can’t do it for free—it’s unfair to the owner of the marks and to the others who pay for permission.
If your use of the word or logo is not connected directly or indirectly to your business or organization and is solely showing your support as a fan, you’re probably safe.
We also ask: Will the Bengals really care if I do this? It would be bad PR to crack down mercilessly on the fans that make a professional sports team successful. Teams are likely to tolerate some fan enthusiasm—especially this week—even if it is technically an infringement, as long as it doesn’t falsely imply a connection or endorsement. Even some business-related things like:
· Wearing authorized logo gear while at work this week to show community spirit.
· Posting a sign that says: “We will be closed this Sunday so our staff can watch the Bengals beat the Rams. Who Dey!”
· Temporarily putting GO BENGALS! or WHO DEY! on your store marquee this week.
Go for it! We all have the spirit (so long as it’s not done in a way that implies an endorsement).
Remember, it’s not your intention that counts. It’s how consumers would reasonably perceive it. Ask yourself: Would people see this as being a fan and showing community spirit, or as me trying to draw attention to my business or organization?
Glenn D. Bellamy is a partner with the Cincinnati intellectual property firm of Wood Herron & Evans LLP.