As you’re probably aware, Reebok wasted no time in getting some Tim Tebow Jets jerseys on store shelves after Tebow was traded to New York last week. Sure, their license with the NFL expires this Sunday, but as of today they’re still the NFL’s official outfitter, so why shouldn’t they get every last bit of bang for their buck, right?
Not so fast. In a truly delicious development, Nike sued Reebok yesterday over the Tebow/Jets jerseys. You can read the entire lawsuit, which has some entertainingly grandiose language, here. I’m no legal expert, but it appears to me that the crux of the case lies in Paragraphs 15 through 21, which read like so:
15. A legitimately licensed NFL player-/NFL team-identified product requires two distinct grants of intellectual property rights: the right to use the trademarks of the NFL and/or its member clubs (collectively, “NFL Marks”), and the right to use players’ names and playing numbers. The right to use NFL Marks on licensed products is exclusively controlled by the NFL’s licensing entity, NFL Properties. While NFL Properties grants third parties rights to use NFL Marks, it has no authority to grant rights to use players’ names or numbers and, in its licenses, explicitly disclaims any such rights and provides that it shall be the sole responsibility of the manufacturer to obtain any right to use players’ names and numbers.
16. There are only two ways in which a product manufacturer can acquire the right to use an NFL player’s name and number on merchandise: (1) obtain that right directly from the individual player, or (2) enter into a so-called “group license” with NFL Players Incorporated, the licensing arm of the National Football League Players Association, which is the players’ union (“NFL Players”). NIKE currently enjoys a license from both Tebow individually and a group license from NFL Players. Reebok has never had an agreement with Tebow individually, nor did it obtain his permission or consent to the manufacture of Tebow Jets product. Reebok had a valid group license with NFL Players, but that license, as discussed below, expired prior to March 1, 2012, and thus could not convey any rights beyond that date to create new Tebow-identified Jets product.
17. Under a March 24, 2010 Letter Agreement with Tebow (the “NIKE – Tebow Agreement”), Tebow granted NIKE the exclusive right to use Tebow’s name in connection with, among other products, athletic and casual apparel (“Covered Products”). That agreement remains in full force and effect.
18. NIKE’s group license with NFL Players commenced March 1, 2012 (the “NIKE – NFL Players License”). The NIKE – NFL Players License grants NIKE the right to use an aggregate of the identities of six or more NFL players (hence, a so-called “group license”) in connection with the manufacture and sale of certain products, namely jerseys, t-shirts and fleece apparel. NFL Players controls these group license rights through an assignment made by each player in the NFL. Practically, this group licensing model affords marketers and licensed product manufacturers the convenience of “one-stop shopping” by providing them the ability to secure the publicity rights of multiple NFL players at once from a single source, rather than having to seek a license from each NFL player individually, which could be unduly burdensome with nearly 1,700 active NFL roster players. However, the individual players are still free to enter into individual endorsement and licensing arrangements with third parties for singular uses of the athlete’s identity on athletic apparel and other products, as Tebow did with NIKE.
19. Reebok’s recent sale and distribution of Tebow-identified Jets apparel is not part of a group offering, but is a singular offering focused on Tebow and the public’s intense interest in him and his recent trade to the New York Jets. Reebok has not been authorized to use Tebow’s name and number for New York Jets-branded apparel products, either by Tebow individually or by NFL Players pursuant to a group licensing arrangement.
20. Reebok has no current agreement with NFL Players that allows it to manufacture and sell Tebow-identified Jets products. Reebok’s agreement with NFL Players expired prior to March 1, 2012, the effective date of the NIKE – NFL Players License. Tebow was not a member of the New York Jets football team until after March 21, 2012 (the trade announcement), long after March 1, 2012, when Reebok’s NFL Players group license rights expired. As of March 1, 2012, Reebok’s rights under its NFL Players group license were limited to, at most, the right to sell out existing inventory of products identified to individual players existing prior to March 1, 2012. For Tebow, that would mean existing Denver Broncos inventory – not new New York Jets products. Whatever right Reebok may have had under its expired NFL Players group license to the use of Tebow’s name on apparel was limited to Denver Broncos inventory, the team he was on as of March 1, 2012, when Reebok’s rights granted from NFL Players expired. An authorized representative of NFL Players has confirmed to NIKE that NFL Players has not authorized Reebok to use Tebow’s name and number on New York Jets-branded products.
21. The final element associated with the manufacture and sale of NFL apparel is the rights to use NFL Marks. Reebok’s NFL Properties license to use the NFL Marks on apparel expires March 31, 2012. Commencing April 1, 2012, NIKE’s NFL Properties license to use the NFL Marks on apparel begins, and NIKE will succeed Reebok as the supplier of NFL team uniforms and as a licensee to manufacture and sell certain NFL-authorized apparel, such as jerseys and t-shirts featuring NFL Marks. In short, Reebok may create new products featuring NFL Marks, but not new products featuring an individual player, without such player’s authorization or consent.
Most of you probably didn’t read that whole thing (lazy sods), so here’s the Cliff’s Notes version: As of today, Reebok still has the legal right to sell NFL merchandise. But according to Nike, Reebok lost the legal right to sell player-specific NFL merch on March 1. Seems odd that Reebok’s license with the players’ union would expire a month sooner than their license with the league, but that’s what the suit alleges.
If you read the entire suit, you’ll see that Nike isn’t just concerned about Reebok selling unauthorized merch during the last week or so of March. The Swooshkateers’ bigger concern is that fans who’ve already bought one of Reebok’s Tebow jerseys will be unwilling to pony up for one of Nike’s Tebow jerseys when they become available. I suspect they’re underestimating their core market’s capacity for lifestyle consumerism (or overestimating its intelligence), but that’s just me.
Anyway, does the suit have merit? Is it just a nuisance suit designed to trigger an injunction that would last until Reebok’s full NFL license expires (the legal equivalent of running out the clock)? Who knows; who cares. When two loathsome corporate behemoths square off in the ring for the right to sell overpriced crap to suckers, all I can do is hope they both land some haymakers and come away badly bruised. These clowns all deserve each other. Here’s hoping the suit drags on for months and that their respective attorneys jack up their fees. Next time you’re thinking of spending $200 on a polyester shirt, keep in mind that that’s where your money is going.
Meanwhile, in the middle of all this legal wrangling sits one Timothy Richard Tebow. Obviously, he has every right to sign a licensing agreement with whomever he chooses, and he’s not the one who filed this lawsuit. Maybe he finds the whole thing as silly and distasteful as I do; maybe he’s rolling his eyes over it as much as some of you probably are. I’ll say this, however: All this profiteering and commodification and litigation being done in his name — all so we can see who gets to skim the most cream off the top of his marketability — it doesn’t seem, shall we say, very Christian.
Update: A court has granted Nike a temporary restraining order, which means any of Reebok’s Tebow jerseys that were sold over the past week have just become instant collector’s items, whee!
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Uni Watch News Ticker: Late-breaking MLB uni news: Looks like the Marlins will have a stadium patch (big thanks to David Polakoff). … New uniforms for the waiters at Maloney & Porcelli, a Manhattan restaurant. … “I grew up in northern Virginia and remember these Redskins posters coming in the Sunday newspapers during the team’s first Super Bowl run,” says Jon Solomonson. “And these McDonald’s posters, too.” … Here’s the latest slop about the NBA considering uniform ads. Everyone made a big fuss over that article yesterday (my phone was ringing off the hook, and Around the Horn made fun of the idea), but if you actually read the article, it’s mainly about Mark Cuban, who’s been cheerleading for jersey ads for years now — nothing new there. There’s nothing in the article about the NBA actually moving in that direction except a mention that they’ll be “pondering” it at next month’s Board of Governors meeting, which we already knew. Just another big fuss over nothing in an attempt to create a false air of inevitability. #NoUniAds … Speaking of that Board of Govs meeting, everyone keeps saying it’s “in April,” but to my knowledge nobody has reported the exact dates. Until now: It will take place April 12 and 13. … Gorgeous stirrups being worn by Joel Rosencrance of Potomac State College (from Don Schafer). … Phil, who loves lettering down the placket, will totally dig these Notre Dame throwbacks that the Irish will soon be wearing (from Dan Cichalski). … I just won this very nice Durene jersey (cuz I didn’t have, you know, enough green shirts already). … Big news out of Australia, where the women’s Olympic hoops team will no longer be wearing the skintight unitards (from Craig Snyder). … Updated Seahawks logo? Maybe. When we’re this close to the actual unveiling, I’m not particularly interested in speculation. In a few days, we’ll all know one way or the other. … Three-headed logo creep monster: Nike, Puma, and Under Armour in one photo. That’s Hercules Gomez from last night’s TFC/Santos Champions League game. He also had some patch issues (from Nick Whiteand Michael Orr, respectively). … Reprinted from last night’s comments: Here’s an absolutely priceless video of 1970s Cubs spring training footage. Not to be missed. … RIP, Earl. I’ll be playing “Foggy Mountain Breakdown” a few times today and thinking of you.