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The Big Game & Superb Owls: A Guide to Super Bowl Trademarks

The Big Game & Superb Owls: A Guide to Super Bowl Trademarks

This Sunday, the New England Patriots and the Seattle Seahawks will face off in Super Bowl XLIX.  You might notice a lot of times it’s referred to something like “the Big Game” instead of the Super Bowl. Why?

In a nutshell, because the NFL has trademarked the term “Super Bowl” and zealously protects the right to use it.

WHY IS IT TRADEMARKED?

The Super Bowl is one of the year’s most watched TV events and advertisers are willing to pay top dollar to have their brand shown to the game’s massive audience. Ad Week reports that companies like McDonalds, Mercedes Benz, and TurboTax are spending about $4.5 million for a 30 second spot for the upcoming 2015 game.

In addition to the TV commercials, the National Football League also brokers long-term sponsorship deals with brands. As part of those sponsorships, brands are often granted exclusive rights for their categories and are allowed to label themselves as being official sponsors.  

Trademarks exist, in part, to prevent consumers confusion. By trademarking “Super Bowl,” “Superbowl,” “Super Sunday,” and several other “Super” terms, the NFL can prevent companies from using the name and causing people to think that those companies are affiliated with the Football League.

HOW ADVERTISERS GET AROUND THE TRADEMARK

Typically, brands that don’t want to pay the NFL’s sponsorship fees will reference the game in euphemisms like “game day” or “the big game.” In fact the term “Big Game” has become such a popular code word that the NFL unsuccessfully tried to trademark it (they abandoned this pursuit when Stanford and the University of California objected due to the fact that the universities have been hosting a football game called ‘The Big Game” for over a century).

Some companies get really creative and find other ways to subtly invoke the game’s name. For instance, Planters Peanuts has aired radio ads during the game season saying, “it would be super…to have a bowl…of Planters nuts while watching the big game!” and Walmart ads talk about “Super ways to enjoy the big game.” When Stephen Colbert wanted to cover the game on his show, The Colbert Report, the comedian began calling it “The Superb Owl.”

HOW FAR IS THE NFL WILLING TO GO TO PROTECT ITS TRADEMARKS

The NFL is not afraid to go after people who infringe on their trademarks. In 2007, they threatened to sue the Fall Creek Baptist Church because the church had a promotion on their website for a “Super Bowl Bash” viewing party. The NFL initially objected to the fact that the Indiana Church was using the term “Super Bowl” and was charging a fee for the party (to cover the cost of snacks). When the church’s pastor offered to make the event free, the NFL then complained that they were planning on showing the game on a screen that is larger than 55 inches (yes, there really is a 55” screen size limitation written into the US copyright law). The League finally eased up on its policies towards churches and nonprofits once Congress started to draft legislation.

In 2013, football fan Roy Fox filed an intent to use application to make t-shirts and hats featuring the words Harbowl and Harbaugh Bowl. The coaches for that year’s Super Bowl lineup were brothers, John and Jim Harbaugh of the Baltimore Ravens and the San Francisco 49ers, respectively. Even though the NFL doesn’t have any trademarks around the name Harbaugh, they were still able to strong arm Fox into abandoning the project and to forfeit the money he’d already invested in the trademark application process. 

WHEN CAN I SAY “SUPER BOWL?”

Unless you are an authorized advertiser you probably refrain from  mention the game’s name in your advertisements. As we’ve already established, the NFL has a broad definition as to what constitutes a commercial message. Unless you’ve written a big check, your ad text should probably stick to speaking in “game time” code. However, if you’re commenting upon the game itself or some aspect of the game, (e.g.. discussing the teams, or reviewing the game’s ads) you can probably say the words “Super Bowl”. David Oxenford from the Broadcast Law Blog comments, 

News reports about the game can still air, using the name of the game. DJs can still chat about who is going to win the Super Bowl. But don’t try to commercially exploit these terms (e.g. saying that you are “Springfield’s Super Bowl station”) unless you really have really the rights to use the trademarked term.

With regards to your company’s social media accounts, things can get tricky. Ken Basin, of the Los Angeles law firm Greenberg Glusker Fields Claman & Machtinger, was recently asked about a scenario in which a brand manager posted a Facebook post about a Super Bowl dip recipe. Basin believes that that situation would probably fall within fair use guidelines, but it ultimately comes down to context.

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Whether you’re writing a Super Bowl themed email, creating an ad or planning a viewing party for your congregation; you should be aware of the NFL’s trademark restrictions and rules.