Wednesday, December 22, 2010

297! Who owns the right to profit from Brett Favre’s streak? by Erik Pelton

Trademark lawyer Erik Pelton wrote an article on the proprietary nature of 297, which is the number of consecutive games Brett Favre has played. The article is below or click here to read it on Erik's site.

Many thanks Erik for allowing Offside to reproduce the article.

Apparently the Minnesota Vikings believe that they own the rights to profit from the streak – or at least from the marketable number it created – 297. On Monday evening earlier this week, while Brett Favre watched his team play from the sidelines for the first time in 298 regular season games, attorneys for the Vikings were filing three US trademark applications based on a bona fide intent to use the following marks (click links for USPTO records):

- 297 (Application Serial No. 85196936, filed at 9:11 EST)

- FAVRELOUS STREAK 297 (Application Serial No. 85196942, filed at 9:20 EST)

- FAVRELOUS 297 (Application Serial No. 85196955, filed at 9:49 EST)


The USPTO filings raise a few questions.

Absent some kind of agreement, who should be able to profit from selling products featuring the number 297?

- Favre

- the Vikings

- the NFL

- the NFL Players Association

- anyone

In order to quality for registration of a trademark on the Principal Register, a mark must indicate the source of the goods or services and not be merely ornamental. Will bottle openers featuring “Favrelous 297” on them indicate that Minnesota Vikings Football, LLC is the source of the products?

Will the Vikings try to stop others from making or selling shirts that use the number 297 on them in connection with Favre or football or the color purple? Just a guess, but I think they will try.

The official Vikings merchandise website is already featuring a FAVRE 297 SALE!:

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