The Super Bowl is the cup final of American football, the last
game of the season in which teams from its two leagues play each
other. The New York Giants managed a huge upset by beating the
Patriots, who would have set a record by winning their 19th game in
a row.
The Giants were not expected to mount a serious challenge, but
their home city newspaper the New York Post applied for a trade
mark on the phrase 18–1 when it heard about the Patriots' confident
registration.
Ian McKie is an intellectual property lawyer with Pinsent
Masons, the law firm behind OUT-LAW.COM, and a keen American
football fan. He said that the Patriots' desire to mark the
occasion was understandable.
"It would have been a very rare occurrence, they would have been
the first team ever to have gone 19 and 0," said McKie, meaning
that the team would have won 19 games and lost none. "The only
other team to have had a season undefeated were the Miami Dolphins
in 1972, but the season did not have so many games then, so they
didn't reach 19."
McKie said that although the registration was unusual, there is
little doubt that the phrase would have become distinctive, had the
Giants not caused an upset.
"It would have been a phrase that sporting fans would definitely
have associated with the New England Patriots," he said.
Intellectual property is fiercely protected in the American
football league the NFL, whose teams earn massive sums from
merchandise and licensing. McKie said that a trade mark
registration would have been part of that process.
"They wouldn't necessarily have been going out and selling stuff
with 19 and 0 all over it, it would have been more of a defensive
registration to stop other people from making money off it with
t-shirts that said 19–0 on them," he said.
Pinsent Masons trade mark specialist Lee Curtis said that had
the Patriots won the game they could have faced difficulty proving
they were entitled to trade mark protection.
"In my opinion it is inherently non-distinctive, it is something
that could be done by someone else," he said. "But the Patriots
would argue that it was such an unusual feat that people would
automatically think of them in relation to the phrase, so they
would have had to show that."
Curtis said that trade mark officials may have regarded the
phrase in the same way that UK officials did the emblem of a red
rose, which is usually associated with England.
"The English Rugby Union tried to register their old symbol of a
red rose as a trade mark but they were rejected because it was said
that you couldn't register something that was a national symbol,
that should be free for anyone to use," said Curtis. "They then
produced a more stylised version which did get a trade mark."
