It’s that time of year again when the biggest event in professional football triggers all sorts of questions from broadcasters and advertisers about how that event may be mentioned in broadcast programming. You guessed it: I’m talking about the Super Bowl.
Most people have undoubtedly heard the Super Bowl referred to as “the Big Game” or the “Sunday Game” by advertisers who are continuously coming up with new and imaginative ways to refer to the Super Bowl without actually uttering the words. Some other peculiar terms thrown about include Touchdown Tournament, Big Football Time, and Tom Brady Day. My personal favorite is the Superb Owl. What can I say – I’m not an Eagles fan.
But why do advertisers go to such lengths to come up with creative names? Unless you have been hiding under a rock or don’t follow football news at all, you will know by now that the NFL is notoriously tough in enforcing its trademarks. Not only does it hold federal trademark registrations in the term “Super Bowl” in conjunction with a variety of goods and services, including various television, radio, and Internet transmission services, but it holds federal registrations in conjunction with a variety of goods and services for many other trademarks as well, including the popular “Gameday” and “Super Sunday.” If you’re curious and would like to view any of those registered trademarks, you can conduct a search at tmsearch.uspto.gov.
Even Sunday schools weren’t always safe. The NFL also is the copyright owner of the television footage of the game, and in 2007 caught wind of a local Indianapolis church which had planned to show the Colts-Bears 2007 Super Bowl game. The League sent a cease-and-desist letter, objecting to the church’s plans to charge admission, promote the event using the mark “Super Bowl,” and use a projector to show the game on a screen larger than 55 inches.
Since then, the NFL has backed off slightly. It has said that it will no longer object to churches that use “Super Bowl” to describe their event or show the game on a screen larger than 55 inches but that it would object to churches renting out spaces (watch parties should be held on church premises or in a church facility). The NFL also has said that churches should not use the Super Bowl logo, the NFL’s logo, or any team logos in connection with an event.
Whether the NFL’s aggressive enforcement tactics would prevail in court is another issue. Unlike the much more robust exclusive rights granted under the patent and copyright laws, which generally allow rights holders to preclude others from using their patented inventions or copyrighted works for a limited time, per the U.S. Constitution, the protection offered by trademark infringement laws necessarily is narrower in scope, as it potentially may last in perpetuity. (I won’t go into the nuances of federal trademark dilution law here.) Trademark infringement laws generally only protect trademark holders from uses of trademarks by others that are likely to confuse consumers (a) into incorrectly assuming an “affiliation, connection, or association” between the trademark holder and another or (b) “as to the origin, sponsorship, or approval of” an alleged infringer’s goods or services. In other words, you should avoid uses of “Super Bowl” or other NFL trademarks that are likely to confuse consumers into assuming an affiliation or sponsorship between the NFL and you or your goods and services.
You also may be able to use “Super Bowl” and other registered marks “fairly and in good faith only to describe the” NFL’s Super Bowl game. That’s why you may hear your local sports reporter using the name “Super Bowl” to deliver a report on the game. It’s also important not to use someone else’s trademark for any promotional or commercial purpose, including advertising events, selling products, and even contests or giveaways, as those types of activities may be more likely to lead to confusion as to the affiliation of your goods and services with those of a trademark owner.
To sum up the trademark lay of the land, it’s best to be careful. Unless you can be certain that your use of a trademark would be found to be “fair” use exception, the best practice from a business risk perspective would be to avoid the marks – and avoid drawing the ire of the League. This includes any names or phrases that get a little too cute, such as Souper Bowl for soups, or even my preferred Superb Owl. Even if a court ultimately agrees that your use of the term “Super Bowl” doesn’t create any confusion, it could be very costly for you to litigate the issue to find out.
The NFL not only holds federal trademark registrations in logos and terms like “Super Bowl” but it also is the copyright owner of the television footage of the game itself. Thus, any bars, restaurants, or other establishments planning a watch party (although in-door gatherings are probably a bad idea for other reasons right now) should ensure that their showing is either appropriately licensed under the copyright laws or falls into an exception where no license is required. It’s better to be prepared in advance than risk receiving one of those infamous cease-and-desist letters.
And finally, in case you came here looking for a prediction: The outcome will be the same as it ever was – Brady making snow angels in confetti, just with a new team. Although that said, I’ll be rooting for the Chiefs. (Andy Reid and my Dad have the same mustache.)
If you have any questions about a specific use of the term “Super Bowl” by your station or another entity, or would like assistance either in registering or enforcing one of your trademarks or in defending against claims by others that you have infringed their trademarks, feel free to call 703-812-0424 or email me at Craig@fhhlaw.com. Happy viewing.