Big Game, Bigger Legal Risks: Using Super Bowl? in Your Marketing
Every year, businesses of all sizes look for ways to cash in on the excitement surrounding the Super Bowl? from bars advertising game-day specials to retailers promoting themed sales. It’s tempting to leverage the buzz of one of the biggest sporting events in the U.S.
But, using Super Bowl?, Super Sunday?, or any of the NFL’s nearly 100 registered trademarks could land you in legal trouble. The NFL aggressively protects its trademarks. Businesses that infringe their intellectual property risk lawsuits, fines, and injunctions.?
The Super Bowl Trademark Crackdown
The term Super Bowl is a National Football League registered trademark. The league has a long history of policing its brand and sending cease-and-desist letters. While unauthorized use may seem harmless, the NFL considers it trademark infringement.
Is the use of the Super Bowl? trademark Infringement?
Use of the term, Super Bowl may not be trademark infringement. Many experts argue that use of Super Bowl is a nominative fair use. Nominative fair use allows you to use another’s trademark in certain situations.
Nominative fair use is generally OK as long as:
(1) the product or service in question is not readily identifiable without the use of the trademark;
(2) you only use so much of the mark as is reasonably necessary to identify the product or service; and
(3) use of the mark does not suggest sponsorship or endorsement by the trademark owner.
One major issue is whether it’s necessary to use the trademark to identify the game. Many simply call it “The Big Game.” Additionally, defending oneself in court is costly and time-consuming.?
Publix and the Art of Skirting the NFL’s Trademark
Businesses can avoid legal repercussions by using generic phrases like “The Big Game” or “Football Championship.”
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A recent example of a company cleverly sidestepping legal issues comes from Publix. The grocery chain’s advertisement featured football-related imagery, with people dressed in colors resembling various NFL teams. However, they carefully avoided using actual team logos or the term Super Bowl?. This illustrates a common tactic that companies employ to prevent infringing on trademarks.
Other examples include Budweiser using “Bud Bowl,” or Animal Planet using “Puppy Bowl.” Fans and consumers know what’s being referenced but are not confused that the NFL has endorsed the use.
How to Avoid a Legal Fumble
If you’re a business owner looking to capitalize on the Super Bowl? excitement, here are a few ways to stay on the right side of the law:
Final Thoughts
The Super Bowl? presents a huge opportunity for businesses to attract customers. However, the legal risks of using the term in marketing are substantial. By adopting a cautious approach, you can engage customers without putting your business at legal risk. Play it safe and avoid unnecessary penalties while still capitalizing on the excitement of the football season.
My book Invisible Assets: How to Maximize the Hidden Value in Your Business will help you understand your business’s IP and its value. It will also explain the traps and mistakes that can get you sued.
About the Author:
Bill Honaker, “The IP Guy” is a former USPTO Examiner, a partner with Dickinson-Wright, and author of the new book, Invisible Assets – How to Maximize the Hidden Value in Your Business.
To get answers to your questions schedule a time to talk, you can access my calendar by clicking here, email [email protected], or call me at 248-433-7381.