One question that Web Watch hears a lot from our friends is “Why do some businesses use the term THE BIG GAME or PIGSKIN PARTY, while others use the term SUPER BOWL in their promotional material?” We’ve noticed this ourselves, and are often amused at the lengths some companies go to in associating themselves as being a part of the Professional Football Championship Game without actually mentioning any of the NFL’s trademarks.
Web Watch is not a lawyer, nor are we involved/affiliated with the Super Bowl, the NFL, and its various properties – but we can certainly share some of the things that we’ve learned over the years. Take the following as helpful suggestions, but if you are planning on using any of the NFL’s trademarks yourself – you may want to check with your own legal department and/or followup with the NFL themselves for your own DOs and DONTs list.
So why do companies use the term “THE BIG GAME” instead of the official term “SUPER BOWL”?
That one is easy – the NFL owns the trademark to the name “Super Bowl”, and strictly enforces its use. Sponsors pay big money to be the Official Product of the NFL or the Official Product of the Super Bowl, and they can see huge profits from being a part of the NFL’s marketing machine. At least that’s what ANHEUSER-BUSCH BELIEVES with their $1.2 BILLION NFL SPONSORSHIP DEAL, even though Coors increased their name recognition but not their own profits. Sometimes exposure is more important than revenue.
It’s the same deal that the Olympics have with the use of their 5-Rings logo — if the Olympics and the NFL let one or two businesses infringe on their protected trademarks, then they would lose some legal wrangling when it comes to enforcing those uses. If they didn’t go after everybody who used the term, then they run the risk of being able to enforce it in court when it comes up.
Disney has run into this themselves as they have to enforce mom & pop daycare centers from painting Mickey Mouse murals on their walls. SNOPES reports that DISNEY FORCED THE REMOVAL OF THOSE MURALS, as the infringement must be fought to keep the trademarks intact and to prevent any alleged affiliation with those daycare centers.
So let’s take a look at what terms and phrases that the NFL has trademarked and strictly enforces their use of. Keep in mind that this may not be a complete list, so if you are a business that’s trying to promote something even remotely related to the Best Football Game Ever, you may want to check with your local experts before attempting anything:
- Super Bowl
- Super Sunday
- NFL, AFC, NFC
- National Football League
- American Football Conference
- National Football Conference
- Any team name (e.g. Patriots, Giants, or associated nickname such as “Pats”) or team logo
Here are some examples of things that CAN be said for promotional purposes:
- “The Big Game”
- Anything with the term “Pigskin”
- The Professional Football Game
- The date of the game, or that it occurs on Sunday. Just don’t use “Super” if you do
- The names of the cities or states that the teams are from. (e.g. “New York” is acceptable)
So what else do you need to worry about legally when it comes to the Superbowl?
Well, if you bought a 55-inch TV to watch the game on, you’re breaking the law.
Now, before you get all crazy, this doesn’t apply to any TV in a private home. It only applies to TVs at bars, restaurants, or other public places. Yes, even churches can’t invite their members to come to church on a Sunday with the promise of being able to watch the game afterwards.
Now, some people are saying that YOU CAN USE THE TERM “SUPER BOWL” in some cases. Their explanation is that usage would fall under “nominative fair use”. The reasoning is that you may need to use the phrase in order to actually talk about it — the example given was “how can I write a review of the iPad (a trademarked term) if I can’t actually use the term ‘iPad’ in the review?”
The key in nominative fair use with regards to why the NFL is so diligent about enforcing its trademarks falls under one of the three identifying fair use aspects: “the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder”.
In other words, businesses are better safe than sorry in their use of any trademarked terms. Because the NFL is going to go strong after companies that even have a tiny sliver of perception that any promotion is tied directly to the NFL. So they’ll go after everybody and not just pick isolated cases.
Here’s a list of legal pitfalls that others have fallen into with regards to the NFL’s TRADEMARK ENFORCEMENT.
As for using the term SUPER BOWL in news articles like this one? Web Watch should be fine (we know you were concerned). Apparently, IT’S OKAY TO USE THE TERM SUPER BOWL IN NEWS ARTICLES.
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