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After being ordered to pay $1 billion for infringing patents and diluting trademarks, what’s spending a few million dollars more making fun of intellectual property?
Samsung, on the losing end of a high-stakes legal battle with Apple, will be airing a commercial at this year’s Super Bowl. The spot features Seth Rogen and Paul Rudd discussing what words are and aren’t permissible to be spoken without violating the NFL’s trademarks.
The conceit is that the NFL vigilantly protects its intellectual property. That might be true, see “Harbowl” — although some attorneys believe that the NFL is over-assertive.
As we pointed out in our article last year — “Super Bowl Madness: 7 Big Legal Questions (and Answers)” — Greenberg Glusker attorney Ken Basin believes that using “Super Bowl” in advertising would be nominative fair use. “The law doesn’t require you to go out of your way to make some oblique reference to something that is principally readily identifiable only by its trademarked name,” he writes.
On the other hand, other attorneys like David Silverman at Davis Wright Tremaine say that nominative fair use doesn’t extend to commercial use — and seem to believe that advertising won’t be given legal protection.
As the unsettled battle continues among trademark attorneys — recognize that the Super Bowl represents the biggest PR event of the year for many of them — enjoy the funny Samsung advertisement:
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