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Businesses walk fine line when supporting Colts

February 5, 2010

Scotty’s Brewhouse owner Scott Wise learned a costly lesson when the Indianapolis Colts last appeared in the Super Bowl and he tested the National Football League’s stringent trademark-infringement policies.

To celebrate the milestone in 2007, Wise had blue T-shirts printed with the number of a Colts player on the back and a horseshoe on the sleeve that he said differed from the team logo.

Wise even cleared the design with his attorneys to ensure the shirt he sold to patrons did not violate NFL rules.

Yet, even though the Colts team name never appeared on the garment, it caught the attention of the NFL, which showed no leniency.

Wise, who thinks someone forwarded to the league an e-mail of his promoting the apparel, received a cease-and-desist letter from officials. OK, fair enough, Wise said.

But the NFL also ordered him to return about 600 remaining unsold shirts at a cost of about $6,000, in addition to the $1,800 profit he had made. All told, including what he spent to have the shirts made, he lost between $10,000 and $12,000.

It’s a valuable lesson Wise won’t forget, and one fellow business owners undoubtedly will heed, if they haven’t already, as the Colts prepare to play the New Orleans Saints on Sunday.

“The whole thing to me is kind of frustrating,” Wise said. “I understand the NFL is trying to protect their brand and image. But the NFL wants to put their hands on everything.”

The league’s infringement policies, which are meant to protect authorized vendors and advertisers, have received nearly as much attention as the Super Bowl in the days leading up to the game.

That’s because a pair of young entrepreneurs printed T-shirts emblazoned with the “Who Dat” slogan, a decades-old rallying cry in Saints lore, accompanied by the team emblem.

After ordering them to stop selling the merchandise, the NFL softened its stance and allowed the shirts as long as they didn’t feature the team logo.

NFL spokesman Brian McCarthy said in a statement that the league initially took action to “protect the local businesses that are selling legitimate Saints merchandise and also the local printers that are making the licensed Saints apparel.”

At last year’s Super Bowl in Tampa, counterfeit NFL gear was widespread, and hundreds of spectators left the game with cheap, fake football jerseys and merchandise, the Washington, D.C.-based International Trademark Association said.

The ITA estimated that about $1 million of phony NFL merchandise was sold at the game last year.

Tom Walsh, a partner within Indianapolis-based law firm Ice Miller LLP’s intellectual property practice, understands the NFL’s enforcement actions. He said they are levied to protect sponsors who pay big bucks to be affiliated with the league, or a particular team.

Sponsorship agreements often range in the hundreds of thousands of dollars and can reach into the millions.

“[The NFL has] a reputation of being aggressive in this area,” Walsh said. “The risk, though, of not being aggressive is pretty significant. [The NFL is],  in essence, a brand name.”

That’s why scores of businesses that are not officially affiliated with the Colts throw their support behind the team in generic fashion.

Motorists traveling along East 86th Street near the Monon Trail, for instance, see a blue Kroger billboard that simply says, “Go Team!” without any mention of the Colts.

And Taylor’s Bakery is selling blue and white, as well as horseshoe-shaped, doughnuts. The bakery purchased some pre-licensed, edible Colts images from the NFL to decorate cakes, but the expense prevented co-owner Matt Allen from purchasing more.

He declined to divulge the cost of the edible images, but he said the price for a sheet cake that typically sells for $24 rises to $39 when it features a Colts emblem.

A veteran of the bakery industry, Allen knows not to test the trademark waters, particularly when decorating cakes.

“It’s not just the Colts copyright, it’s Disney, it’s Nickelodeon,” he said. “They’re all very protective of their names. I’m just so used to it. It just doesn’t surprise me.”

Meanwhile, for Colts fans planning to patronize their favorite eatery or watering hole on Sunday, enjoy the “Big Game” festivities. That’s a popular term coined to promote the parties, since the NFL has trademarked the use of “Super Bowl.”

Scotty’s Brewhouse is being a little more daring, inviting customers to its "Super Party."
 

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