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Super Bowl Ads Cost Millions; Superb Owl Ads Not So Much

If you're a fan of the NFL, then you remember last year's Super Bowl. With time running out, the Seattle Seahawks were a play away from scoring the game-winning touchdown when a controversial play call led to an interception by New England and the championship belonged to the Patriots. You also probably remember some of the television ads that ran during commercial breaks and purportedly cost as much as $4.5 million for a single 30-second ad. In fact, the Super Bowl is so popular that recent reports have placed the cost for next year's ads at a staggering $5 million.

Last month, the National Football League (NFL) challenged an application for registration of the trademark "SUPERB OWL" on the grounds that it is too similar to the name of the annual football championship pitting the winner of the NFC against the winner of the AFC in the game known as the Super Bowl. The application, which covers running events, was filed a year ago year by Arizona-based non-profit group The Night Run in International Class 041 ("Organizing, arranging, and conducting running events") the company and the events it organizes don't appear to have any connection to professional football or to the Super Bowl itself.

Originally, The Night Run was set up in 1995 and its premiere event, held in Phoenix, was known as the "Night Run for the Arts." The original organizers later abandoned the event until it was revived in 2012 with a night owl theme and re-named "The Night Run." Now, the group regularly hosts five and eight kilometer running events and runners are awarded a medal with the words 'Superb Owl' written on them. In the spirit of the event, some participants even dress up as owls during races.

In mid-July, the NFL filed an opposition to the registration with the Trademark Trial and Appeal Board (or "TTAB"), arguing that the mark was too similar to seven of its own registered marks containing the words 'Super Bowl'. The TTAB is an administrative arm of the U.S. Patent and Trademark Office that is tasked with resolving disputes regarding te4h registration of trademarks in the United States. The Night Run has until August 8 to respond to the NFL's opposition.

This isn't the first time the phrase 'Superb Owl' has been in the spotlight. In 2014, comedian Stephen Colbert named a sequence on "The Colbert Report" as the "Superb Owl," and he used it as a means of poking fun at the hoopla that is associated with the Super Bowl. The restaurant chain Hooters, which is known for its own owl logo, posted a video on YouTube in response to Colbert's segment, and offered to be a sponsor. A female presenter wearing a Hooters t-shirt told viewers that "superb and owls happen to be right up our alley." With Colbert taking over "The Late Show," there is no more "The Colbert Report" and there is no more "Superb Owl" on the show. As far as we can tell, the NFL never actually threatened to take legal action against Colbert or Hooters.

Why It Matters. Trademarks are intended to protect consumers by identifying the source of particular goods or services. For example, when you by a Ford Taurus, you know you're going to get a vehicle made by the Ford Motor Company (whether that is a good thing or a bad thing depends on your opinion of Fords); you're not going to get a car or truck made by somebody else. And when trademarks are submitted to the P.T.O. for registration, one of the things the attorneys who examine the applications will look at is whether or not another company has already registered (or is using without having registered) the same or a similar trademark. Generally speaking, the P.T.O. won't issue a registration for two (2) trademarks that are "confusingly similar" to one another. Instead, again generally speaking, the P.T.O. will refuse registration to the mark that was submitted for registration after the other when the later-filed application indicates the trademark was first used after the later mark.

[As an interesting side note, New York City attorney David Faux obtained a federal registration (USPTO TM Reg. No. 4723047) in International Class 041 for "SUPERB OWL" on April 21 of this year, but there is no record of the NFL having filed an opposition to his application. Faux's registration is for the service of "[p]roviding a column in on-line electronic newsletters delivered by e-mail in the field of promoting the goods and services of entrepreneurs." ]

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