In case you hadn’t heard, there’s a big football game this weekend. While some may tune into the Super Bowl for the game itself, millions (25% of those surveyed) tune in for the commercials. According to the National Retail Federation, 77.1% of viewers see Super Bowl commercials as entertainment. Indeed, the cost of a 30-second Super Bowl ad runs brands upwards of $5 million dollars.

On a local, more economical level, small businesses all over the country will push out their own specials and promotions tied into the most widely viewed event in the nation. After all, if (according to the National Chicken Council) 1.25 billion chicken wings are going to be consumed, why wouldn’t you want your chicken wings to be the ones chosen?

But before you login into MailChimp or hop onto Facebook to start hawking your own promotions tied to the Super Bowl, it’s best to make sure you have a firm understanding of what you’re legally allowed to promote. The NFL can be quite the stickler for trademark infringement.

With both Super Bowl and Super Sunday trademarked, the NFL is zealous in protecting what’s theirs in the name of preventing trademark dilution and safeguarding its sponsorship and advertising dollars – see aforementioned $5 million price tag for a 30-second ad.

What does this mean?

The trademarking of Super Bowl and Super Sunday means that they may not be used without permission in a commercial context, specifically in any way that could cause confusion as to to sponsorship, endorsement or affiliation without permission.

But what about the Nominative Fair Use Doctrine?

The Nominative Fair Use Doctrine basically prescribes that a trademark can be used if it describes a phrase and lacks commercial intent. Specifically, it dictates that each of the following elements must be met:

  1. The plaintiff’s product or service in question must be one not readily identifiable without the use of the trademark.
  2. Only so much of the mark or marks may be used as is reasonably necessary to identify the Plaintiff’s product or service.
  3. The user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

In layman’s terms:

While you can’t say “We’re your official wing headquarters for the Super Bowl,” you may be able to get away with “Stock up on wings for Super Bowl weekend,”  at least according to one lawyer in Los Angeles, and even then, the NFL may or may still try to intimidate you with a cease and desist letter so really, why chance it?

I’m a small business, there’s no way the NFL will waste their time on me…

You might want to tell that to this church. The NFL actively and aggressively polices their trademarks and will not hesitate to send out cease and desist letters followed by legal recourse. Sure, you can risk it if you really want, but you better make sure that the reward outweighs that risk.

OK, I’ll just save my sports-related promotions for March Madness…

You may want to rethink that strategy. Since 1993 the NCAA has been aggressively enforcing the trademark terms related to the annual NCAA basketball tournament including March Madness, Elite Eight, NCAA Sweet Sixteen, March Mayhem, and The Big Dance.

So, what can I do?

GET CREATIVE. Think outside the box and come up with a clever way to describe Super Bowl Weekend. After all, customers are more likely to remember something witty and clever that stands out in a sea of sameness. Just remember not to use the team names…

Alternatively, you could eschew the football themed weekend altogether and try appealing to those who want nothing to do with football.

 

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