It's that time of year again, so grab some chips and dip and a beer (or two) and head to the big screen (but not too big) for "The Big Game."
Be careful, using the word "Super Bowl" is prohibited, because the NFL has trademarked it and if they believe you have affiliated yourself with or otherwise sponsored or endorsed promotions using the Super Bowl trademark, you will most likely be found liable for trademark infringement.
Now I know what you're thinking, "Can a brand really not use the term Superbowl?" This creates a likelihood for consumer confusion within advertising and marketing companies, but as Marshawn Lynch knows, the NFL does not back down when it comes to breaking the rules, so proceed with caution when creating a SuperBowl-based campaign.
What is Trademark Infringement?
Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees. By the NFL establishing the Super Bowl as a trademark, it has restricted the right or power for others to use the mark for their own commercial benefits. According to the Broadcast Law Blog, the NFL owns at least eight trademark registrations containing the words "Super Bowl," "Probowl" and "Super Sunday." The NFL also owns copyright to the telecast for the game itself.
Now there is something called nominative fair use, which means that trademarks can be used under certain conditions but can not be identifiable without use of the trademark. You can only use the trademark to the extent necessary to identify it and you can not do anything to suggest a falsely suggested sponsorship or endorsement by the trademark owner. Remember that the NFL appreciates some hype about the game to attract viewers and general consumer interest in the game.
Copyright vs Trademark Infringement
Copyright infringement is a form of protection provided by authors of original works of authorship. In other words, the copyright protects the form of expression, rather than the subject matter of writing. Examples of copyright infringement include literary, dramatic, musical, artistic and other creative works. Copyrights are registered by the Copyright Office of the Library of Congress.
Now remember, some things, such as more complex logos may qualify for BOTH trademark and copyright protection. This is because the amount of original authorship in a logo can vary greatly. According to the National Football League's Terms and Conditions, they own all copyright rights in the text, images, photographs, video, audio, graphics, user interface, and other content provided on their services, and the selection, coordination, and arrangement of such content. Anyone who is not an official sponsor of the NFL is prohibited from copying, reproducing, modifying, distributing, displaying, performing or transmitting any of the contents of the services for any purposes.
Trademark law protects commercial brand names, logos, slogans, and other elements by use of representing a company or product. According to the National Football League's Terms and Conditions, they own all rights in the product names, company names, trade names, logos, product packaging and designs 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. Anyone who is not an official sponsor of the NFL is prohibited under the trademark laws of the United States from including reproduction, imitation, dilution or confusing or misleading uses.
The Power of the NFL Trademark
The NFL is very strict about protecting their trademark. According to Copyfutures, the NFL holds the property rights to all phrases relating to the Super Bowl and enforces extremely strict rules about which ones may not be legally broadcast by marketers and promoters not authorized by the NFL. They also create the Super Bowl, chose its venues, and control the distribution of all related material with the understanding that they also have the right to control this distribution for a certain period of time after the Super Bowl.
All of the tickets are printed with the disclaimer that no one inside the stadium can give accounts or descriptions of the game to media without press credentials. This means that radio or television stations need to obtain press credentials before the Super Bowl, they can't report or comment on the game while it is going on. The only legal option is to report on the news of the game after its over, basically who won and what the score was. That's right, you can't even talk about the game without proper authorization from the league.
Want to know something even crazier? Did you know that you can't watch the Super Bowl on a television screen larger than 55 inches? It's right there in the law (sort of) U.S Code, Title 17, Chapter 1, Section 110 called, "Limitations on exclusive rights: Exemption of certain performances and displays," lists 12 of these exemptions to copyright restrictions. Although this law is seemingly impossible to enforce nationwide, that brand new flat screen you just bought is technically helping you commit infringement from the comfort of your living room.
Tackling the Word "Super Bowl"
According to Business Insider, the trick to not stepping on the NFL's toes is to come up with a clever play on words so consumers clearly understand that the advertisement is in relation to the Super Bowl, but never using the exact terms.
Basically, stay away from team names, team logos, the word "Super Bowl," and any other trademarks that are protected.
Also, stay away from hashtag Super Bowl (#SuperBowl). A business creating a hashtag with someone else’s brand is not a good idea, especially when we're talking about the NFL. Keep in mind that anything you tag or associate with the NFL becomes the property of the NFL. It doesn't matter what is in front of the word "Super Bowl," like a hashtag (#), because the word "Super Bowl" is trademarked by the NFL.
How to Avoid Super Bowl Copyright Infringement
Here are some terms you can use to avoid the mighty hammer of the NFL coming down on your business this February:
- The Big Game
- The Professional Football Championship Game
- The Big Bowl Game
- Super Football
- The Big Plate
- The date of the game
- The names of the cities of the teams (not the actual team names) competing in the Super Bowl
- You can make fun of the fact that you cannot say the word "Super Bowl" by bleeping it out
Touchdown!
Well, we've made it to the goal line! Now go ahead and enjoy that Big Football Game party you were planning. Just don't charge your friends admission to see the game or you will be violating copyright enforced by the NFL and don't even think about selling those t-shirts with your favorite football team logo on them, that's violating trademark enforced by the NFL! Enjoy the game and Happy Large-Scale Football Event Sunday!
If you have found a safe, creative way to mention "Super Bo@#" that you're just using so you won't get fined please mention it in the comments below.