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Last Sunday, millions of people tuned in to watch “the big game.” Everyone knows what “the big game” means (…just in case, it is an unofficial title for the Super Bowl). Restaurants and stores all advertise their wares with banners telling you to either to “Stock up” or “Come on in” for “the big game!” But why do they do that? Why not just say “Better get one of our new TVs before the Super Bowl!” That would certainly be more direct – but it could also lead to a potential claim of trademark infringement. The phrase “Super Bowl”, and at least eight other similar variations (including “Super Sunday”), is a registered trademark of the NFL, an organization that notoriously polices the use of the name to stop any possible infringement.
The Lanham Act (the federal statute governing trademark law) defines a trademark as “any word, name, symbol, or device, or any combination thereof . . . used by a person . . . to distinguish his or her goods.” Ultimately, it represents the goodwill of the product owner, and allows the customer to associate the trademark with the reputation, and quality, of the product. Classic examples include “Coca-Cola” or “Nike”; upon hearing the name, one immediately associates that word with the products it represents, and the caliber of the products themselves.
The same goes for the Super Bowl. Because the phrase is a registered trademark of the NFL, the organization basically has the exclusive right to use it in commerce, meaning that the general public associates the Super Bowl with that one event, the championship game. Trademarks reflect the work that an entity put into building a reputation for the product, and having the public associate the trademark with the underlying good sold in commerce. Infringement is prohibited because it deceives the public about who is behind the product or event. Infringement can also falsely imply a company’s association with, or sponsorship of, a good or organization, and this is often what the NFL is concerned about.
The NFL makes substantial money from having “official sponsors” for the Super Bowl, and they argue that if an organization advertises something as having to do with the Super Bowl, people will falsely think that the NFL is associated with, or sponsors, that product. Now, in reality, if you see a sign at the grocery store that says “We have all the food you need for your Super Bowl party!”, you probably would not believe that your local store is acting in an official capacity as an NFL sponsor. Perhaps some people might though. And this is why the NFL has gone after businesses, both big and small, as well as churches and other organizations, for seemingly inconsequential claims of infringement. Some businesses have parodied the need to avoid the phrase “Super Bowl,” as seen in this picture.
Many legal commentators think that these uses of the phrase “Super Bowl” might not even constitute infringement, but could actually fall under the safe harbor of “nominative fair use” – basically that the business is using the phrase to describe what they are advertising the product for, rather than seeking to gain commercial profits by falsely associating with the NFL. But nobody is willing to litigate the issue; the cost is too great, and avoiding the problem is simple enough (just say “the big game”).
The NFL strictly polices potential copyright infringement as well, as seen in a recent example involving college athletics. Two New York universities, Siena and Niagara, were scheduled to play each other in basketball during the New York Giants’ playoff game. Siena, understanding that many New Yorkers would rather stay home and watch the Giants than attend their game, decided to solve the potential attendance problem by airing the football game on the scoreboard while the two college basketball teams played.
Seems like a good idea, right? Not according to the NFL. Siena received an email from the NFL, stating that it is not permissible to broadcast the game on a screen bigger than the general size of a screen in someone’s home. When the school asked for special permission, its request was denied. While this may be unfortunate for Siena and Niagara and their ability to draw a crowd, this attitude is consistent with the NFL’s behavior in the past. The NFL has copyright protection in the telecast of the game, which includes the right of reproduction, and the right of public display. As such, it used to try and prevent Super Bowl parties where the game was being shown on a large television screen, ostensibly worrying about some sort of commercial gain due to infringement on one of those two rights (ex: I could not start publicly showing a copyrighted movie and charge people to view it). However, the NFL has relaxed its policy a bit, and now typically asserts its copyright protection when someone is in fact charging others admission to watch the game, as opposed to just going after those with large, potentially “public-attracting” television screens.
A court will likely never determine whether a small business’s use of the phrase “Super Bowl,” to describe a sale of its product, constitutes nominative fair use. The cost is too great for the small business, while the NFL has money to spare. Until that time, if it ever occurs, advertisers will have to be content with using “the big game” year after year.
– Katharine Skinner
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