On February 4, the Philadelphia Eagles won their first Super Bowl in franchise history. One of the most memorable moments fans witnessed in that game was a gutsy play that the team called the “Philly Special”: a fourth-and-goal, direct-snap reverse pass to Nick Foles, the Eagles’ quarterback. It was one of the boldest calls in Super Bowl history, and it has inspired some bold moves at the U.S. Patent and Trademark Office (“USPTO”), as well. As the term “Philly Special” has spread like wildfire through Eagles’ fandom, quick-thinking entrepreneurs have raced to capitalize on it, filing trademark applications to secure the rights to those golden words.
The First ‘Philly Special’ Hopefuls
At least six entities, mostly individuals, have filed applications to register variations of the phrase “Philly Special” as a trademark intended to be used on various products, including clothing and sandwiches.
The first trademark application to be filed was from Joseph Tallarico of Coopersburg, Pa. He managed to file his application the very morning after the Super Bowl. The filing attempts to register “The Philly Special” as a trademark for sandwiches, presumably a version of that beloved Philadelphia-area dietary staple, the Philly cheesesteak sandwich. Tallarico’s application claims that he started using this trademark on sandwiches the same day he filed his application, February 5, 2018.
The following day, Nathaniel Shoshan of Pompano Beach, Fla., filed an application to register “Philly Special” as a trademark for his clothing line. Shoshan intends to use this trademark on his line of T-shirts, hoodies, business suits, Hawaiian-style shirts, fire-retardant baby clothing, and underarm clothing shields.
Whalehead Associates LLC of Bonita Springs, Fla., had the same idea. On February 7, that company filed a trademark application to use “Philly Special” for its clothing line. Since then, three more individuals have followed suit, seeking to register “Philly Special” for clothing products. One application also includes “restaurant, entertainment, retail services” as intended offerings under the applied-for trademark.
And last but not least, on February 15, the Philadelphia Eagles got into the action, filing their own application to register “Philly Special” for its clothing line, namely, t-shirts. The Eagles’ application claims that they started using this trademark on these products on February 9, 2018.
Will There Be a ‘Philly Special’ Beer?
Just a few more days into the rush to the trademark office, D.G. Yuengling & Son, Inc. filed an application to trademark “Philly Special” for a beer. The Pottsville-based brewery is a well-respected one; it began operating in 1829, making it America’s oldest brewery.
Interestingly, the company expressly abandoned the application only eleven days after it was filed. Yuengling’s communications manager is quoted as saying the company wants to allow the Eagles to have full, unfettered access to all rights and uses of the term “Philly Special.”
Will One of these Intrepid Applicants Succeed?
It will be interesting to see how these trademark attempts play out, and whether any other entity will follow Yuengling’s path and bow out of the race in favor of the Eagles.
Applying to register a trademark is no guarantee that it will be granted. The entities who have filed trademark applications have not yet made hefty financial investments in their cases. The trademark filing fee is only $275, on average, and the strength of their cases has not been put to the test.
If a trademark registration application makes it through the initial review by the USPTO, it is sent out for public review. Any party can raise objections, but the first to object will likely be the Philadelphia Eagles themselves. Their objection will no doubt be that if a product bears the phrase “Philly Special,” consumers will falsely assume that the franchise endorses the product or is associated with it. Further, although the other applicants pre-date the Eagles’ application filing date, none of the other applicants have indicated they have actually started to sell any clothing products under the “Philly Special” trademark. The Eagles’ presumed priority of use will be an important factor in the fight. The Eagles’ case against these other players could be a strong one.
It also may be simply impractical to trademark a phrase that is so well-known and used. Everyone it appeals to probably already associates it with the Eagles’ and with Foles’ play. Though it seems likely that not all of the Philly Special trademark applications will be pursued and/or approved, we will have to watch and see what happens.
Shoshan has said that he was inspired to try to trademark “Philly Special” when he heard of a similar attempt the Minnesota Vikings’ made to trademark “Minnesota Miracle” earlier this year. The outcome of that filing has yet to be decided, but its progress is instructive to these Philly applicants.
The Minnesota Vikings’ application to register “Minnesota Miracle” has been initially refused, in part, by the USPTO on the grounds there is a likelihood of confusion with the mark in U.S. Registration Nos. 2588594 (MIRACLE) and 4504775 (MIRACLE). Those registrations do not appear to be related to football, generally, or the Minnesota Vikings, specifically, but yet are serving as a roadblock to the Vikings’ application.
So, too, here, there could be outside considerations that will impact not only these individual applicants, but the Eagles, as well. Watch this space; the outcome will be interesting.