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Who Dey! How to Cheer on Your Cincinnati Bengals Without Committing Trademark Infringement

Every year in the peak of winter, football fans and non-football fans alike unite to sit around, eat chips and dip, and watch “The Big Game” (and the commercials). You may be puzzled at the vague and mysterious mentions of “The Big Game” that carefully avoid reference to the name everyone knows – “The Super Bowl.” That’s because the NFL[1] owns the trademark rights to SUPER BOWL[2] and is extremely aggressive in enforcing such rights. Indeed, they have to be aggressive, because two of the factors in trademark litigation (called the du Pont Factors[3]) look to the number and nature of similar marks in use on similar goods and the extent to which the applicant has a right to exclude others from use of its mark on its goods.

Similarly, the Cincinnati Bengals[4] own at least 32 trademark applications and registrations protecting their intellectual property, including “SEIZE THE DAY,” “WHO DEY,” “WELCOME TO THE JUNGLE,” “READY TO ROAR,” “BENGALS,” “B,” “CINCINNATI BENGALS,” “BEN-GALS,” “PAUL BROWN STADIUM,” helmet designs, tiger designs, and football uniform designs featuring “7” on the chest, and more.

So how can I, as an intellectual property attorney practicing trademark law, write an article with “Who Dey” in the title and mention the “Super Bowl?” Well, trademarks are highly specific to the goods and services in connection to which they are used and registered. The Bengals’ portfolio encompasses numerous goods and services, including:

  • Marketing services, namely, promoting the goods and services of others by arranging for sponsors to affiliate their goods and services with various football personalities and/or the sport of football; dissemination of advertising for others via an online electronic communications network.
  • Education and entertainment services in the nature of professional football games and exhibitions; providing sports and entertainment information via a global computer network or a commercial online computer service or by cable, satellite, television and radio; arranging and conducting athletic competitions, namely, professional football games and exhibitions; football fan club services; entertainment services, namely, musical and dance performances provided during intervals at sports events; educational services, namely, physical education programs; production of radio and television programs; presentation of live shows featuring football games, football exhibitions, football competitions, presentation of live shows featuring music and dance performances, organizing sporting and cultural events featuring football.
  • Men's, women's and children's clothing, namely, fleece tops and bottoms, caps, headwear, T-shirts, sweatshirts, shorts, tank tops, sweaters, pants, jackets, turtlenecks, golf shirts, woven shirts, knit shirts, jerseys, warm-up suits, swimwear, wind resistant jackets, raincoats, parkas, gloves, ties, sleepwear, namely, pajamas, knit hats and caps, scarves, aprons, underwear, socks. 
  • Jewelry, watches, clocks, pins made of precious metal, earrings, necklaces, bracelets, charms, money clips made of precious metal, rings, collectible coins, coins of precious metal, pendants and keychains made of precious metal.
  • Downloadable software in the nature of mobile applications for displaying information relating to football exhibitions, football schedules, media guides, audio and visual recordings relating to football exhibitions, downloadable computer game and video game software, downloadable multimedia files containing artwork, text, audio, video, games, and internet web links relating to football exhibitions; downloadable electronic publications, namely, magazines and newsletters, all in the field of football; cellphone covers; decorative magnets.
  • Cups, mugs, drinking glasses, insulating sleeve holders for beverage cans and bottles.
  • Cloth flags, fabric flags, banners of textile.
  • Football helmets, cellphone covers, magnetic-coded charge cards, decorative magnets, pre-recorded videotapes featuring the sport of football, computer game software and disks, computer mouse pads, sunglasses. 
  • Toys and sporting goods, namely, plush toys, stuffed toy animals, play figures, golf balls, golf bags, footballs, Christmas tree ornaments, toy trucks, playing cards, and miniature toy helmets.

This is just a sampling of the vast goods and services covered by the Bengals’ trademark portfolio. Use of the marks previously mentioned in connection with any of these goods would constitute trademark infringement, and for the Cincinnati Bengals to protect their trademark rights, they would need to enforce against any known use. Therefore, a fan creating clothing, earrings, key chains, media guides, artwork, cups, flags, toys and other goods mentioned above cannot use “WHO DEY,” “BENGALS,” the stylized tiger-striped B, “WELCOME TO THE JUNGLE,” or any of the other trademarks owned by the Bengals without fear of enforcement.

Regardless of whether you are selling the items or making them for personal use, regardless of whether you copy and paste the logo from the internet, (which likely constitutes copyright infringement), use hand-drawn logos or generic typeface, it is trademark infringement to put “WHO DEY” or “BENGALS” on clothing, cups, keychains, and the like. Instead, you must buy licensed products that have quality control requirements and are reviewed and approved by the Bengals, who are likely paid a royalty on every sale.

However, use outside of these goods and services, for the most part, is fair game. It’s okay to reference the team name and its slogans when referring to the team, so long as you do not imply an association, affiliation, connection, sponsorship, endorsement or approval by the source. Posting a “GO BENGALS” or “WHO DEY” banner or sign in your business is likely okay, even if it utilizes the Bengal’s logos, so long as it is not directly in connection with your business branding so as to suggest an affiliation or sponsorship. There is also an exception for nominative fair use, which allows for use of trademarks in legitimate news contexts (such as this article’s use). Nominative fair use looks to whether the term is only being used as necessary for identification purposes, is not suggesting any sponsorship or endorsement connection (hence many of the disclaimers “*XYZ is a registered trademark of ABC Corp.”), and whether it’s used for monetary purposes or educational and news content. Some advertisements could likely argue nominative fair use, but because so many brands are affiliated partnerships and given the aggressive nature of the NFL, it has not yet been challenged or tested in a court of law. 

Overall, to avoid liability issues, be sure to buy licensed gear from a reputable, vetted source instead of making your own, even if you have good intentions of simply supporting the team you love. However, there’s no need to watch what you say, and yelling “WHO DEY” is highly encouraged.[5] Calfee’s Trademark team would be pleased to answer any specific questions related to these issues.

[1] National Football League

[2] Trademarks are typically depicted in all capital letters, which is an indication that they are standard character marks protected in any capitalization, color, or font.

[3] In re E.I. du Pont de Nemours & Co., 476 F.2d 1357 (C.C.P.A. 1973).

[4] Cincinnati Bengals, Inc.

[5] And, technically, these rules would apply equally to Rams fans, to the extent they exist.

Calfee Connections blogs, vlogs and other educational content are intended to inform and educate readers about legal developments and are not intended as legal advice for any specific individual or specific situation. Please consult with your attorney regarding any legal questions you may have. With regard to all content including case studies or descriptions, past outcomes do not predict future results. The opinions expressed may not necessarily reflect the view points of all attorneys and professionals of Calfee, Halter & Griswold LLP or its subsidiary. Updates related to all COVID-19 government assistance programs are provided with the most current information made available to Calfee at the time of publication. Clarifications and further guidance are being disseminated from government authorities on an ongoing basis. All information should be reaffirmed prior to the submission of any application and/or program participation.

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