The National Football League seems to be gunning for a spot in our Hall of Shame by setting a record for all-time career TDs—no, not touchdowns, but takedowns. We’ve written before about the NFL’s crusade against anyone who dares use the words “Super Bowl” to talk about, well, the Super Bowl.
But the NFL’s trademark bullying doesn’t end there. 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.
But if you’re a cynical Jets fan in need of new gear, you’re out of luck for now. Earlier this month, the NFL contacted Shopify, the platform Berger uses for his store, and claimed that every item sold by Same Old Jets Store infringes its trademarks. The NFL didn’t even bother to identify which trademarks were supposedly infringed by which products—its formulaic notice just asserted trademark rights in the names and logos for the NFL and all 32 of its teams, then identified every product listing as “infringing content.” The league’s only explanation for its complaint was an obvious copy-and-paste job that parrots a legal test for trademark infringement, claiming consumers are likely to believe the gear was put out or approved by the NFL.
Seriously? The idea that consumers would think the NFL is selling official merchandise that mocks the Jets (using a phrase the team’s owner has called “disrespectful”), or says “SELL THE TEAM,” is ridiculous. On top of that, Berger’s parodies of the Jets’ logo and merchandise are protected by the First Amendment and trademark’s nominative fair use doctrine, which protects your right to use someone else’s trademark to refer to the trademark owner or its products. (Nominative fair use, by the way, is also why you can call the Super Bowl “the Super Bowl.”)
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.
It’s disappointing that the NFL continues to use bogus trademark claims to get its way. It’s also disappointing that Shopify seems uninterested in standing up for the rights of its users. We hope that both will come to their senses.
