The Big Game is this Sunday, and that’s how the NFL wants us to phrase it. Actually, they’d rather not even let us say “the Big Game”, but they couldn’t get a trademark on that, either.
It may be old news to some of you, but the NFL has a trademark on the terms “Super Bowl” and “Super Sunday”. That’s why your local supermarket advertises Game Day supplies, and local bars don’t have Super Bowl parties – they just have a special deal for that specific Sunday. The NFL owns the Super Bowl, and they sure don’t want you to use it.
Their reasoning is fairly straightforward – companies pay a lot of money to be officially affiliated with the Super Bowl. Letting just anybody use the term could result in fake sponsors. But is anybody really going to think that their local bar is affiliated with the NFL, just because they wanted to offer a special on wings?
Trademarks are meant to provide clarity, not ownership.
The whole question boils down to trademark law. A few years ago, we ran an article about trademarking your logo or business name. Trademark law exists to prevent consumer confusion, and to protect companies from having their name stolen. Because the NFL has a registered trademark on the words “Super Bowl”, it makes sense that they wouldn’t want you to use it without their permission. Likewise, if you find that someone is using your trademark without permission, you have the right to take them to court.
Of course, that doesn’t mean you can’t use it at all. Did you notice how liberal we’ve been with the term in this article? Fair nominative use means that we can use the words Super Bowl to refer to the game, because that’s what the game is called. You can’t refer to a Hoover vacuum as anything other than a Hoover vacuum, and still have your readers know what you are talking about. According to United States law, you have every right to call the Super Bowl just that.
So can you use it in advertising? That issue is still up in the air. Broadcast Law Blog says that you should steer clear from it. However, Tech Dirt says that “fair nominative use” should apply to advertising too, if you are referring to a specific product. According to this line of thinking, trademarks exist to keep someone else from calling their product the Super Bowl, not to keep anyone from talking about it. That’s likely why DirecTV hasn’t sued Comcast for their new ad. Comcast hasn’t technically done anything wrong.
What does this mean for you?
NFL shenanigans aside, it’s important to think about what trademark law means for your brand. On the one hand, trademarks are important to preserve your brand identity. You don’t want someone going around, claiming to have the same product name as you. On the other hand, trying to prevent people from talking about your product makes you look like the bad guy. That kind of bad publicity might not be worth it.
In general, your trademark is protected. Someone can’t publish things under your name, or use your logo without permission. However, they can talk about your product as much as they want. What they can’t do is lie about your product, or say negative, untruthful things. Of course, that has nothing to do with trademark law; that’s just a simple matter of libel or slander.
Even though there are some legal grounds to use the phrase “Super Bowl” in an advertisement, we aren’t going to take our chances. You won’t see us advertising a Super Bowl party any time soon. However, you will see us talking about the Big Game a whole lot this Monday, when we bring you our rundown on this year’s Super Bowl television ads.