No new card games are patent-eligible without the invention of a new deck
On October 26, 2010, two enterprising individuals from New Jersey filed a patent application with the United States Patent and Trademark Office for a “Blackjack Variation.” The Smiths sought to acquire patent rights to a new casino game they called “Pacific Rim Blackjack.” It appears that these inventors created a card game variant that merges the concepts of blackjack with Baccarat. The application claims that “casinos are in constant need of new games of chance to retain and attract patrons.” Additionally, the patent application asserts that existing games of chance such as blackjack, Three-Card Poker™, Baccarat, and Pai Gow are “popular” but “suffer from drawbacks.”
Due to the applicants’ unprovoked attack on the greatness that is Pai Gow poker, the USPTO rejected the patent application in whole. Well, okay, the patent examiner and later the Patent Trial and Appeal Board (PTAB) actually rejected the application on grounds that the alleged invention is “abstract” and therefore not patent eligible subject matter. The inventors appealed this decision and on March 10, 2016, the Federal Circuit affirmed. Though the interesting part of the decision is not the rejection of the application itself – it was the Federal Circuit’s rationale and hints at the types of card games that might actually be patentable.
On Sunday, February 7, 2016, the Carolina Panthers® and Denver Broncos® will take the field for the kickoff of Super Bowl® 50. This is the annual showcase game for the National Football League®. In the interim time, the NFL® has assembled an army of lawyers that are ready, willing and able to send a bevy of cease-and-desist letters to any individual or entity that has the audacity to use certain terms or phrases that the league perceives might dilute or infringe famous trademarks that belong to the NFL.
The Super Bowl is practically an American institution, now in its fiftieth year. Many groups contend that the Monday after the Super Bowl should be a national holiday. In fact, a formal petition was once initiated for that very purpose. As a result, you will see and hear numerous advertisements leading up to the Super Bowl promoting numerous goods and services. It is kind of a big deal. What you are unlikely to hear in these advertisements, however, is quite noteworthy. You will rarely hear any advertisement use the term SUPER BOWL.
Why are we reduced to using nebulous terms like “The Big Game” or “The Pro Football Championship” to identify and describe a game? Why is the NFL so trigger-happy in seeking to stop all uses of “Super Bowl” that are not made by direct sponsors of the league or the television broadcast? What is the legal basis for the NFL’s position on this matter? Is it possible that the NFL is wrong? (Spoiler alert: YES!)
On January 12, 2016, the National Football League approved by near unanimous vote the re-location of the Rams from St. Louis to Los Angeles. Los Angeles has not been home to an NFL team since the Rams and the Raiders both left after the 1994 season. In addition to the Rams, the San Diego Chargers also have the option to move to Los Angeles before the 2017 season, which seems likely. The Los Angeles Rams are back in business. NFL Hall of Fame running back (and fellow SMU Mustang!) Eric Dickerson seems pleased with the news:
Not surprisingly, the Los Angeles Rams Football Company, by way of the St. Louis Rams LLC, has already taken steps to ensure that the LOS ANGELES RAMS trademark rights are active and the federal registration has been renewed. But there remain other trademark issues that arise from this news of relocation.
Two trademark applications have recently caught my attention. Both involve NFL players and their offhand comments that have become accidental catchphrases. I highlight these two as a means of underscoring the recent trend among athletes to seek to register trademarks of all kinds. Most of these marks, unfortunately, have limited commercial value and a short lifespan for relevance among the consuming public. While I am a champion for protecting your trademark rights, these two particular applications strike me as nothing short of absurd.
Please allow me to explain…
Time flies. I was a freshman in college when Kobe Bryant declared that he was going to skip college and go straight to the NBA. Fast forward twenty years and Kobe has announced that he is retiring from professional basketball at the end of the season. Through a poem.
Kobe has always been known for being a voracious competitor on the basketball court. But it appears he has a plan for life after basketball. Kobe has already formed “Kobe, Inc.” and has started the process of acquiring trademark registrations. For nearly everything.
It has been a recent trend for athletes to seek to acquire trademark registrations for their names and nicknames and likenesses. (“Johnny Football,” anyone?) Kobe is just taking it to the next level, which is entirely consistent with his personality as we know it. The question is what exactly is he seeking to protect?
Last weekend, The Hunger Games: Mockingjay – Part 2 made over $100 million at the box office. The movie’s success is largely due to the strength of Jennifer Lawrence and the popularity of the books. Enough digital ink has been spilled discussing the movie as a dystopian political outlook for young adult audiences. Instead, here we repurpose the world of Panem as if it adopted the intellectual property laws currently in the United States.
Accordingly, under that hypothetical, what trademark and publicity rights does Katniss Everdeen have? Did the rebels and/or the nation-state of Panem violate or infringe any of these rights by exploiting her image as the “Mockingjay”?
[mild spoilers ahead, proceed with caution if you have not seen the movie]
Remember a couple weeks ago when the Washington Redskins submitted a laundry list of registered trademarks that its counsel contended were offensive or disparaging? And remember when that same week the makers of “Nut Sack Double Brown Ale” beer were granted a federal trademark registration over similar objections? You should – I wrote it on the paper.
Now another beer maker has been granted what I will call a questionable trademark registration. One that I am sure would have been listed right at the top of the Washington Redskins’ bad name list. LEFT NUT BREWING COMPANY is now a federally registered trademark. Really. On November 13, 2015, the Trademark Trial and Appeal Board reversed the decision of the trademark examining attorney and granted the registration.
I am sure that Daniel Snyder is handling this news with calm, cool reflection. Or whatever the exact opposite of that is.
On Thursday, November 12, 2015, Texas A&M University filed suit against the NFL’s Indianapolis Colts alleging infringement and dilution of its various “12th Man” trademark rights. If this sounds familiar or redundant, remember that A&M previously sued the NFL’s Seattle Seahawks for unauthorized use of the same trademarks nearly a decade ago. A&M eventually settled that matter with the Seahawks, with the NFL franchise agreeing to pay a license fee to A&M. The actual terms of that license and settlement were never made public and Seattle continues to use variants of the “12th Man” name today.
Last week, counsel for the Washington Redskins submitted a lengthy brief to the Fourth Circuit that, in part, provided a laundry list of other trademarks that have been registered by the USPTO and were implicitly deemed not to be immoral, scandalous, disparaging or otherwise offensive. In a parallel but unrelated matter, the owners of the trademark for NUT SACK DOUBLE BROWN ALE – for a beer flavor, naturally – overcame a challenge to their mark and were granted a federal trademark registration.
These two decisions seem incongruous, but are they really? At the very least, I hope to see an episode of South Park where Cartman wears a Washington Redskins™ jersey while drinking a Nut Sack®-flavored drink.
[originally published on October 13, 2015 at www.law-dlc.com]
As a sports fan, Monday, October 12, 2015 was a strange and turbulent day. USC fired Steve Sarkisian one day after asking him to take an administrative leave of absence (cue the employment lawyers). Steve Spurrier, the head coach of the other USC – South Carolina – suddenly walked away and called it a career in mid-season. Meanwhile, Texas Governor Greg Abbott congratulated the Astros on making the American League Championship Series when they were leading 6-2 in the eighth inning, only for the Royals to score five quick runs and turn me into a blubbering mess of a baseball fan. Someone in the governor’s office forgot about Yogi Berra and “it ain’t over ‘til it’s over.”
Yet the craziest sports story of the entire day might be something that happened over social media. In the mid-afternoon, the Twitter accounts for Deadspin (@Deadspin) and SB Nation’s GIF-based sub account (@SBNationGIF) were suddenly suspended. The initial reasons were murky, with media reports later suggesting that the National Football League used its influence with Twitter to suspend the accounts. And why? Because the Deadspin account and the SBNationGIF account both routinely posted or re-tweeted Vines and GIFs of highlight plays from NFL games. Which are copyrighted works.