With Power Comes Responsibility: The NFL’s Trademark-Enabled Waste Problem

February 7, 2014

NFL trademark darksideLast week’s column about the power for the copyrighted term “Super Bowl” isn’t the only intellectual property-related news the NFL has to offer these days.

Earlier this week, the New York Times ran an interesting story about how the Super Bowl is also occasion for counterfeiters to manufacture rip-off clothing bearing the names of teams and star players. Evidently, federal authorities know this and conduct sting operations around Super Bowl time. This year’s campaign was called “Operation Team Player,” the Times reported, and nabbed some $21.6 million in clothing that unlawfully bears the NFL’s trademarks.

In my previous post, I commented positively on the economic power the copyright for the term “Super Bowl” grants the NFL, but this story shows the dark side that can come with the clout intellectual property protection grants; the seized counterfeit clothing will be destroyed once it is no longer needed as evidence, rather than donated to needy people.

While I understand the need to discourage the black market and keep counterfeit goods out of the stream of commerce, this is also a terrible waste. This year alone, some 202,000 items are going to be destroyed. That is both a stunning waste of the natural resources it took to make this clothing and a tremendous deprivation, since there are people who could use that clothing.

In the NFL’s defense, it donates the clothing it has made in advance of the Super Bowl celebrating the losing team’s non-existent victory, but I would argue it would be more environmentally friendly not to produce such clothing in the first place.

It is good that the U.S. justice system has (arguably) a strong intellectual property regime, but when a powerful and wealthy organization like the NFL uses its protections to engage in conduct that generate needless and extravagant destruction, it seems clear to me that some aspects of intellectual property protection can be abused.