Wednesday, April 24, 2013

The "College Football Playoff" and Intent-to-Use trademark applications.

You can determine a lot about a state of affairs by searching the Trademark Electronic Search System (TESS) database on the USPTO website. Just yesterday, it was announced that the name of the new four-team playoff to decide major college football's national champion beginning in the 2014 season, will be called the "College Football Playoff." The name's simplicity confused some when they heard that it was trademarked on March 28, 2013.

Well, it was sort of trademarked on March 28, 2013. The mark owners, BCS Properties, LLC (BCS), submitted intent-to-use service mark and trademark applications on that date. I briefly discussed intent-to-use applications in the fourth paragraph of this post. Basically, the BCS said it has a legitimate intent to use "College Football Playoff" on goods and services, but that it has not done so yet.

The confusion over the name was how such a plain term can be trademarked. If a mark has secondary meaning, it can be trademarked so long as it is not "generic" or "merely descriptive." Since "College Football Playoff" has been referred to in recent years as the college football playoff, it already has secondary meaning among consumers. Accordingly, the mark can be registered as both a service mark and trademark when the BCS first uses "College Football Playoff" in commerce.

The BCS must use "College Football Playoff" in commerce before the expiration of six to 24 months, depending on how many extensions the applicant files. Given that the first playoff game will be played within two years, this will not be difficult.

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