Samsung’s Super Bowl ad, IP enforcement, and feedback loops

So let’s talk about the SUPER BOW…[SHHHHHH!!!]

Samsung has posted a really funny video of a Super Bowl ad where a fictional Samsung executive cautions two ad writers that Samsung may not use trademarked terms such as SUPER BOWL, BALTIMORE RAVENS, or SAN FRANCISCO FORTY-NINERS.

The video is a hoot, starring Seth Rogen and Paul Rudd as the young admen, and the incomparable Bob Odenkirk (the lawyer “Better Call Saul” from Breaking Bad) as the executive who lives in deathly fear of an IP lawsuit.

Perhaps the video is only funny to me because of my IP background. But I doubt that the humor is just for IP profs: after all, why would Samsung make a commercial just for me? Sadly, in our “IP licensing” culture, overblown IP claims are ubiquitous, and I have little doubt that the general public will immediately see the absurdity in the video’s “conclusion” that Samsung may only refer to the game as “THE BIG PLATE” (watch the video, you’ll see), and to the teams as the “BALTIMORE BLACKBIRDS” and “SAN FRANCISCO FIFTY-MINUS-ONE-ERs.”

You have to love the fact that Samsung — which lost a $1 billion IP suit to Apple (for patent and trade dress, the latter a variety of trademark) — is now professing a fear of overblown IP claims. Kudos to a company that can laugh at itself after it’s been told it committed a billion dollars worth of IP infringement.

Sadly, the real-world use by some of “THE BIG GAME” to refer to the Super Bowl is an example of an all-too-common feedback loop: overblown claims by IP rights owners, leading to third parties who self-censor out of fear of suit, leading to additional overblown IP claims. These feedback loops require little real-world litigation, instead relying primarily or solely on private IP enforcement. I wrote about similar feedback loops arising from private enforcement of IP rights in this article.

The video ably underscores the importance of doctrines such as nominative fair use, which when met, allows others to refer explicitly to the “Chicago Bulls” rather than having to use tortured phrases such as “the professional basketball team from Chicago.” Or for that matter, the need to talk about the “San Francisco Fifty-Minus-One-ers.” So, shame on you, NFL — or should I say, shame on the “premier professional football sports league in the United States.” Of course, this wouldn’t be the first time somebody’s pointed out the NFL’s seeming habit of overstating its IP rights.

On to The Big Game: I wish I could say I’m excited about the game, but it’s between the Forty-Niners (meh) and the hated Ravens (grr-argh). I’m a Steelers man through and through. As one joke said, I’d rather root for an asteroid, but I think host city New Orleans has seen enough woes as of late.

Thanks to law prof Michael Risch for bringing this nominative fair use example to my attention. Cross-posted to Infoglut Tumblr.

Updated 6/10 – video link was broken, changed to another location.

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