HBO's "Ballers" & the NFL's Trademark(s) and Image(ry)

(hat-tip to Uni-Watch) As notably reported by NBC's online outlet "Pro Football Talk" (Mike Florio), HBO has a new quasi-fictional series about life in-and-around the NFL entitled "Ballers" and starring ex-college football player and professional wrestler Dwayne "The Rock" Johnson. Admirably, Johnson has turned himself into quite an entertainment force, and is a natural for this type of serial vehicle in television. The series promises to hold a mirror up to the NFL and its personalities, although how close and how detailed the mirror actual is will be sorted out down the line. With the various public relations issues the NFL has suffered in the last twenty-four months, the NFL has to hope that the series is either (a) well received by the public in depicting ordinary day-to-day issues players have (and operating to rehabilitate the league image) or (b) doesn't put too fine a point on these issues and instead puts a little (lip) gloss (on the pig, perhaps?).

Aside from the ripped-from-the-headlines-of-the-NFL inspired storyline(s), as pointed out by Florio at "Pro Football Talk", what is also notable is HBO's non-licensed use of the league's and teams' logos and trademarks. I specifically use the term "non-licensed" as opposed to "unauthorized" or "impermissible" - the NFL has not given HBO written authorization to use the trademarks, and perhaps from the league's perspective it is semantics: non-licensed is the same as unauthorized and impermissible. The NFL is considered a image (if not trademark) zealot by many, and often stepping over the line a bit.  However, whether HBO's proposed non-licensed use of the marks is illegal (and thus, truly unauthorized and impermissible) is a different question. A question that tends to not get litigated.

Unless a film or television production has an agreement with a company for product or mark placement, most film/television production houses avoid using real products and associated marks. In instances where the show/film is scripted, then faux brands and products are created, such as the many faux Internet browsers, email clients, databases, and other electronic devices and interfaces that permeate scripted visual performances. In the reality genre, or in quasi-news reporting, video and still photos may feature someone with a shirt or other article with a brand logo that is blurred out. These efforts are undertaken to avoid any perceived (or real) trademark entanglements, in which the brand holder may be thought to endorse the show/film and its content. Many folks assume that unless an owner authorizes trademark use that any such use implies approval, endorsement, sponsorship, or some type of association between the content creator and the brand owner that is unwanted, undesirable, and/or uncompensated free-riding.

Because logo blurring and simple non-use have become the practice in trade for the tv/film industries, it does not address the tension between HBO's perspective and the NFL's perspective. Against industry standard, HBO has declared that its use of these marks is not a legal concern; the NFL's "no comment" echoes rather loudly that at the least they are huddled with legal counsel crafting a response and/or a potential challenge. But the question remains - who is (most) right?

I cannot say with 100% certainty that this is a case of first impression, but I'm not aware of any cases litigated to a decision in this area because the industry standard is practiced by virtually every entity in the industry. In particular, sports-themed fictional shows/films have often avoided these issues by completely fictionalizing the league, the teams and trademarks, and the personalities, unless it is a bio-pic or documentary. Though not exhaustive, here are several examples. The book and film "North Dallas Forty" were fictionalizations of writer Peter Gent's stent with the Dallas Cowboys, with the film depicting a pro football franchise named the "North Dallas Bulls". The films "The Replacements" and "Any Given Sunday" created leagues and teams for their respective pro football worlds. In the 1980s, the HBO television show "1st and 10" about professional football was wholly fictionalized. More recently, ESPN produced the fictionalized world of pro football entitled "Playmakers".

So, what does HBO know or sense about this situation that it can say with confidence that there are no trademark issues here, against industry practice and little-to-no legal precedent (for or against)?

Although one would not expect HBO and the NFL's collaboration on the reality series "Hard Knocks" to have transferred any authorization to HBO beyond that used with that series, perhaps HBO negotiated a grand bargain and took advantage? However, that seems unlikely. Since trademark infringement and trademark dilution are the big potential legal issues in play, and because each is analyzed under a "likelihood of" infringement/dilution standard, perhaps HBO is relying upon the degree of care exercised by and sophistication of the viewer to appreciate that the show is fictional and the use of the marks adds a flavor of realism without creating an endorsement or sponsorship by the NFL? In connection with carefully crafted credits, including long pauses on the production company(ies) involved (and perhaps a disclaimer at the start or end, or both), perhaps it will be evident that the NFL has no part in the show other than as props? Or, maybe HBO doubts the propriety of the NFL speaking for all 32 teams on this issue, and will use a nominal number of teams and marks and roll the dice that each individual team isn't going to devote the resources to litigate the matter? The NFL teams pool their licensing money and divide the revenue, but whether the NFL is authorized to act on behalf of each individual team in regard to each of the 32 team trademarks is less-than clear (though I suspect it to be up to each team to act).

Regardless of what the parties believe at this moment, this may become an interesting trademark tussle between two giants in U.S. pop culture. And we'll be watching.