andrew-mcelroy-XaGNO7bgZa8-unsplashA big part of IP law is the ability for companies to protect their ideas and their brand — the main part, really. And it's important and necessary for such protections to exist, to prevent things like theft and infringement from becoming rampant problems with little or no means or seeking justice and recompense. But we've seen that the power and protection offered to rights holders through the law also enable bad behaviors as well, notably in the case of patent trolls working the system to extort what money they can.

There's also the example of companies that are willing, and even eager, to wield their rights and their ownership as a cudgel, taking a muscular, aggressive approach to protecting their brand even in instances where such an approach isn't warranted, or is even counterproductive.

Notable among the above example is the National Football League, an organization as dedicated to protecting its brand as it is to burying information about head injuries. If you've ever wondered why you hear so many commercials about the "Big Game" come late January, it's because the NFL is incredibly protective of the name "Super Bowl", which is only on offer for use to those paying to be partnered with the league for the biggest sporting event of the year. For better or worse, the NFL has a definitive brand, and they are particular about letting its massive audience know what it has given its approval as an official partner or product or merchandise.

It's the latter item that's at issue in a dispute between a fan and the league, though the dispute is thus far is rather one-sided. EFF reports that Zach Berger, a frustrated New York Jets fan (is there any other kind?) who runs a website called Same Old Jets, had his merchandise shop shut down by Shopify after a complaint from the NFL that his merchandise was infringing upon NFL trademarks. Berger's store sold merchandise with designs similar to the Jets' logos, albeit with text saying "Same Old Jets" or "Sell the Team"; in short, nothing that any reasonable adult would think is officially licensed by the Jets or the NFL.

Berger cited this lack of any actual, credible confusion in pushing back against the clam and Shopify's decision to shut down the store, an argument that has a strong basis in fair use and the First Amendment, as EFF points out. But the power and influence of the NFL is such that few companies are willing to get on its bad side for a matter of principle over one customer, and Shopify is no profile in courage in this case, informing Berger that they forwarded his response to the NFL and are awaiting a resolution between the two sides before reopening his store, ignoring the fact that, for the NFL, the matter is resolved — they got the outcome they wanted.

It's certainly not the first instance of the NFL overreaching, and far from the last. And it illustrates the challenge presented to individuals who might try to assert their legitimate rights when an organization can simply make such demands with no actual basis and have companies like Shopify acquiesce. It's why the NFL and others do it, and will continue to do it — because they can.

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