“Big Game” vs. Super Bowl: A Trademark Matter
As Super Bowl Sunday approaches, more and more commercials reference the “Big Game” in attempt to boost sales by indirect association with the hugely popular finale to the American football season. Watch enough television leading up to the Super Bowl and you might begin think that the only products sold in all of the United States are beer, soda, chips, salsa, and sports paraphernalia. Indeed, with viewership of the Super Bowl climbing to an estimated 100,000,000+ viewers in recent years, there is arguably no better venue to advertise a company’s product or service, especially if that type of product is seen as a Super Bowl party staple.
While advertising the “Big Game” likely conjures up images of the Super Bowl, the number of advertisements directly using the ubiquitous Super Bowl name is noticeably small. There is a distinct reason for this, and it isn’t a matter of happenstance. Rather, it is a matter of intellectual property rights. Specifically, trademark rights.
According to the NFL’s “ Terms and Conditions”:
We (or our affiliates) and our member professional football clubs own all rights in the product names, company names, trade names, logos, product packaging and designs (“Trademarks”) of the National Football League and such member clubs, and third parties own all Trademarks in their respective products or services, whether or not appearing in large print or with the trademark symbol. Unauthorized use of any such Trademarks, including reproduction, imitation, dilution or confusing or misleading uses, is prohibited under the trademark laws of the United States and other countries. You are expressly prohibited from using or misusing any Trademarks, except as expressly provided in this Agreement, and nothing otherwise stated or implied in the Services confers on you any license or right to do so.
The National Football League (NFL) owns a remarkable number of registered trademarks pertaining to the Super Bowl. To illustrate, the NFL owns 6 active trademarks of the precise 2-word, generic “Super Bowl” phrase, and owned as many as 16 now-inactive trademarks of the same exact name. This doesn’t even cover variations or additions to the phrase. However, the NFL does not own a trademark on the oft-substituted “Big Game” phrase. Thus, while many companies won’t pass over the opportunity to be indirectly associated with the Super Bowl, virtually all companies are smart enough not to suggest a direct association with the NFL or the Super Bowl. This is fortunate, as the NFL has a reputation of vehemently (and liberally) asserting its IP rights, even against the little guys. See “Harbaugh Bowl” for a recent example.
While there may be an argument that the NFL uses poor discretion in choosing who to go after with its intellectual property rights, from a business standpoint it makes perfect sense. Every Super Bowl, huge corporations with national name and product recognition pay the NFL enormous sums of money to become or remain an official sponsor and taste the spoils of direct commercial association with the league. Thus, when a group walks into intellectual property infringement limbo, purposefully or not, the NFL acts to protect not only against trademark dilution, but sponsorship dilution as well.
So, if you advertise your special Super Bowl cupcakes on Facebook, will Roger Goodell and the NFL’s army of intellectual property attorneys knock down your door and demand compensation for trademark infringement and dilution? No. Well, probably not. In any case, it may behoove you to follow the example of countless other companies and err on the side of caution with your use of Super Bowl-related names and paraphernalia.
Remick Stahl
Law Clerk at
JAFARI LAW GROUP®