Over the last decade, we’ve covered Super Bowl topics, it’s that time of year again!

We’ve probed the NFL’s overzealous activities and asked hard fair use questions.

And, with Big Game LII in our backyard, we had a front row ambush marketing seat.

With digital marketing, that front row seat can be anywhere your iPhone takes you:

The top half of the email advertisement from Tuesday, landing in my inbox (shown above), seems to have a better argument for a nominative fair use defense than the the bottom half of the same ad (shown below), agree?

Assuming Birch’s is not an actual licensee, seems to me a rather difficult argument that use of the Super Bowl LIII logo is really fair and necessary for communicating truthfully, but, what say you?

UPDATE:

Hot off the email press and inbox from yesterday, here is another Super Bowl ambush, note their favoring of “Big Game” over “Super Bowl”:

So, they may have avoided the NFL’s wrath, but what about the Patriots and Rams logos on the helmets, fair use, or not, friends?

Here’s to looking at you again, James!

For those of you following professional sports generally, and hockey in particular, you now know that Winnipeg has a new NHL team called the Winnipeg Jets. The “new” Jets recently unveiled their updated logo which you can see compared to the old logo above. Now, the “new” Jets are not to be confused with the former NHL franchise which entertained hockey crazed Canadians over two decades. No, the "original" Jets team left for Arizona in 1996 in what can only be deemed a Gretzky-esque tragedy. (Hockey in Arizona; how could it go wrong?) The current Winnipeg Jets are in fact the former Atlanta Thrashers.

Now, pro sports franchises jumping cities are not a new thing and it’s often a ridiculously confusing ordeal. For you baseball fans, we have the former Washington Senators who eventually became the Minnesota Twins. However, when the old Senators became the new Twins, an expansion team named the Senators remained in Washington. This team eventually left to become the Texas Rangers. We also have the Montreal Expos who then became the Washington Nationals. For football fans, we have the Cleveland Browns who became the Baltimore Ravens in 1996. This was, of course, after the former Baltimore Colts had defected to Indianapolis in 1984. Cleveland was then awarded a new franchise in 1999 that was known as the Browns. We also have the Cleveland Rams who became the Los Angeles Rams who became the St. Louis Rams.

The question for discussion is what should happen to the trademark rights in these instances. For some of the teams, it looks like registrations were assigned from the old franchises to the new franchises.  (See here and here.) This may very well be valid where the actual franchise is the same; however, query whether it is a valid assignment when the new team has no connection to the old team other than geographical location and/or nickname. Is this an assignment in gross? Additionally, isn’t this a recipe for consumer confusion and if so, should we care? What are your thoughts?