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New England Patriots victims of trademark hubris

Don't count your chickens before they're hatched

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American football team the New England Patriots applied for a trademark on the phrase 19–0 to represent the 18 games leading up to last Sunday's Super Bowl and the victory they had predicted for themselves. They lost.

The Super Bowl is the cup final of American football, the last game of the season in which teams from its two leagues play each other. The New York Giants managed a huge upset by beating the Patriots, who would have set a record by winning their 19th game in a row.

The Giants were not expected to mount a serious challenge, but their home city newspaper the New York Post applied for a trademark on the phrase 18–1 when it heard about the Patriots' confident registration.

Ian McKie is an intellectual property lawyer with Pinsent Masons, the law firm behind OUT-LAW.COM, and a keen American football fan. He said that the Patriots' desire to mark the occasion was understandable.

"It would have been a very rare occurrence, they would have been the first team ever to have gone 19 and 0," said McKie, meaning that the team would have won 19 games and lost none. "The only other team to have had a season undefeated were the Miami Dolphins in 1972, but the season did not have so many games then, so they didn't reach 19."

McKie said that although the registration was unusual, there is little doubt that the phrase would have become distinctive, had the Giants not caused an upset.

"It would have been a phrase that sporting fans would definitely have associated with the New England Patriots," he said.

Intellectual property is fiercely protected in the American football league the NFL, whose teams earn massive sums from merchandise and licensing. McKie said that a trademark registration would have been part of that process.

"They wouldn't necessarily have been going out and selling stuff with 19 and 0 all over it, it would have been more of a defensive registration to stop other people from making money off it with t-shirts that said 19–0 on them," he said.

Pinsent Masons trademark specialist Lee Curtis said that had the Patriots won the game they could have faced difficulty proving they were entitled to trademark protection.

"In my opinion it is inherently non-distinctive, it is something that could be done by someone else," he said. "But the Patriots would argue that it was such an unusual feat that people would automatically think of them in relation to the phrase, so they would have had to show that."

Curtis said that trademark officials may have regarded the phrase in the same way that UK officials did the emblem of a red rose, which is usually associated with England.

"The English Rugby Union tried to register their old symbol of a red rose as a trademark but they were rejected because it was said that you couldn't register something that was a national symbol, that should be free for anyone to use," said Curtis. "They then produced a more stylised version which did get a trademark."

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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