By Professor Wesley Brennan, Instructor of Sport Business, Buena Vista University (IA)
In McMillan v. NFL, the United States District Court for the Eastern District of Wisconsin was put into a position to consider whether the National Football League (NFL) and the Wisconsin Department of Revenue (DOR) engaged in unlawful monopolization and conspiracy to monopolize slogans surrounding one of the league’s most historic franchises, the Green Bay Packers. What unfolded from this case was a legal win for the NFL, affirming that the league’s exclusive licensing of trademarks is generally permitted under trademark law and does not, on its own, violate federal antitrust law. Ultimately, McMillan v. NFL highlights the legal limits of copyright protection by rejecting an individual’s effort to claim ownership of popular phrases while affirming the NFL’s exclusive authority to license its trademarks.
Calvin McMillan, pro se plaintiff, is a Green Bay, Wisconsin business owner and entertainer. In April 2026, he filed a complaint against the NFL and the Wisconsin DOR alleging that phrases from his songs, such as “Pack Attack,” “Go Pack Go,” and “The Pack is Back,” were used in Packers-themed state lottery promotions and other merchandise without his permission. McMillan also claimed that the NFL licensed the use of the Green Bay Packers’ name and logo exclusively to the Wisconsin Department of Revenue for use in a lottery game, restricting him from offering his own lottery tickets with the franchise’s name and logo. The lyrics in two of McMillan’s songs were used in conjunction with lottery tickets issued by the Wisconsin DOR and featuring the Green Bay Packers’ logo. In this particular case, McMillan argues that the NFL unlawfully monopolizes the use of “professional football content” and the Wisconsin DOR likewise unlawfully monopolizes the sale of lottery tickets. As a result, he was prevented from offering his own lottery tickets using the Green Bay Packers logo.
In this case, the court had to analyze McMillan’s claims that he suffered harm under antitrust violations, state lottery monopoly, and copyright claims involving trademarked material. Under the antitrust claim, McMillan argued that the NFL violated federal antitrust law by monopolizing professional football licensing. This, in turn, also led to the claim that the Wisconsin DOR unlawfully monopolized lottery sales. As several phrases from McMillan’s songs were also the subject of promotional materials from the NFL and the Wisconsin DOR, McMillan challenged that his song titles and short phrases should have been protected by copyright. McMillan believed he was harmed because he thought the defendants, the NFL and the Wisconsin DOR, profited from phrases he created and prevented him from exploiting his own commercial idea – leading to a potential lost business opportunity.
The court ruled against McMillan in this case, ultimately dismissing the lawsuit with prejudice. The claims of an antitrust violation, state lottery monopoly, and copyright and trademark usage were all ruled heavily in favor the of NFL and the Wisconsin DOR. On the subject of the antitrust claim, the court determined that McMillan failed to plausibly allege that this type of scheme was at play in this case. The focus of McMillan’s claim was that the NFL had licensed the use of the Green Bay Packers’ name and logo exclusively to the Wisconsin DOR for use in a lottery game, preventing McMillan from offering his own lottery tickets using the Green Bay Packers’ name and logo. The court determined that his allegations did not present an issue with antitrust law, but rather intellectual property and specifically trademark law. A core principle of trademark law is trademark holders explicitly being entitled to control and license the use of their trademarks. In this case the NFL, being the trademark holder for the Green Bay Packers, licensing the use of the team’s name and logo to the Wisconsin DOR for a lottery game does not plausibly violate antitrust law.
As for the monopoly claim against the Wisconsin DOR, the court swiftly determined that the state also did not violate antitrust law and operate a monopolist enterprise as McMillan argued. States are immune from these types of antitrust claims. A state refusing to allow competitors to its state-run lottery does not violate the Sherman Antitrust Act. In this specific case, McMillan would have been a competitor to the Wisconsin DOR had he been able to run his own lottery.
This left McMillan with the copyright claim over his song lyrics. His copyright claim focused specifically on the use of the phrases “pack attack,” “pack is back,” and “go pack go.” His argument claimed that because these phrases were the titles or lyrics of his songs, any further use of these phrases violates his copyright. McMillan alleged that these pieces “are registered or intended to be registered with the United States Copyright Office.” He later alleged that, although he submitted a copyright application, he subsequently could find no record of it. Instead, he provided proof of a separate musical group, the Sax Pack, having registered a different sound recording titled “Pack is Back.” The court determined that McMillan failed to plausibly provide evidence of a federal copyright violation as short phrases such as names, titles, or slogans, are not copyrightable. Thus, McMillan’s use of these phrases in the title or lyrics of a song did not give him exclusive copyright protection over all future uses of those phrases.
This ruling serves as a positive legal victory for the NFL. In the end, McMillan didn’t stand much of a chance taking on the league nor the Wisconsin DOR. The NFL has been licensing its trademarks to various businesses and organizations for decades, and it is nearly impossible to claim a copyright on short phrases or titles as McMillan tried. Although he believed that the NFL’s exclusivity to its licensing practices prevented him from using Packers-related phrases and logos (in both songs and lottery usage), trademark law gives owners the legal right to control how their intellectual property is licensed and commercially used.
This case serves as an important lesson for creators seeking intellectual property protection. Whether they are creative content creators, merchandisers, business owners, or entertainers, creators of all types should understand the difference between copyright and trademark law, as well as antitrust law, before pursuing necessary legal action. By recognizing legal limitations and the scope of rights within trademark law, creators can better safeguard their work while avoiding unsuccessful claims against large organizations such as the NFL or the Wisconsin Department of Revenue.
Wes Brennan is a Sport Business professor at Buena Vista University in Storm Lake, Iowa. His professional industry experience includes stops at Missouri Western State University, the Kansas City Chiefs, Ferris State University, and the University of North Alabama – specializing in athletic facility and event management and capital projects. He is currently pursuing his Ph.D. in Sport Management at Troy University with an emphasis in College Athletics.
