A post-Super Bowl rush to cash in on "Philly Special"

Some entrepreneurs are trying to score on the notoriety of the "Philly Special" -- one of the boldest trick plays in the 52-year history of the Super Bowl. It occurred when Philadelphia Eagles tight end Trey Burton and quarterback Nick Foles reversed roles, with Burton winding up in the backfield with the ball and throwing it to a wide-open Foles for a clutch touchdown on fourth-and-1 play.

Since the Eagles won their first Super Bowl in franchise history on Feb. 4, four trademark applications have been filed with the U.S. Patent and Trademark Office (USPTO) to claim exclusive rights to use "Philly Special" for a diverse array of apparel ranging from hoodies to business suits. And one entrepreneur is seeking to trademark the term for cheesesteak sandwiches, a dietary staple of many people in the Philadelphia area. 

However, as attorney Hara K. Jacobs noted, applying for a trademark is no guarantee that one will be granted.

For instance, if a trademark application makes it through the USPTO initial review, it's sent out for public comment, allowing parties to raise objections for a variety of reasons, including if the potential exists for the public to wrongly think a product may be associated with or endorsed by a party, like the Eagles. 

Foles, a backup who assumed the starter's role in December after Carson Wentz was injured, also might have a separate cause of action against the Philly Special merchandise sellers: for interfering with his right to publicity, she said.

Florida businessman Nathaniel Shoshan is offering a T-shirt with the words "Philly Special" in white letters and the play diagrammed in Xs and Os on a backdrop that shares the Eagles' green color. It highlights the challenge these entrepreneurs face.

"The Philadelphia Eagles have a strong claim of infringement here in my view," said Jacobs, a partner with Philadelphia-based Ballard Spahr, which specializes in intellectual property. "Put another way, if you as a consumer came across this T-shirt, would you think Philly Special was the brand of apparel, or would you think the phrase Philly Special was celebrating that gusty, brilliant call perfectly executed by the Eagles? I'm going with latter, most definitely."

Shoshan, who runs a health care business and designs T-shirts on the side, said he decided to trademark his Philly Special design because his work has been pilfered in the past. He understands that he's taking a risk by selling the shirt.

"This is the first time I've ever tried it this way," said Shoshan, who roots for the winless Cleveland Browns.  "I understand that there could be a holdup in the long run, but I figured it might be worth a shot. We'll see what happens from there."

Joseph Tallarico of Coopersburg, Pennsylvania, who applied to trademark the "The Philadelphia Special" for his cheesesteak sandwiches might have a stronger case because the word "special" is so commonly applied to sandwiches by delis and other restaurants. Even so, Tallarico may find it difficult to promote his menu offering in a way that avoids leaving the impression the Eagles are somehow behind it, according to Jacobs.

Tallarico didn't respond to a request to comment for this story, and an Eagles spokesman declined to comment. If you're a New England Patriots fan, it's now small solace that the Philly Special may have actually been an illegal play.

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    Jonathan Berr is an award-winning journalist and podcaster based in New Jersey whose main focus is on business and economic issues.