Why it’s the Super Bowl® for some and “The Big Game” for others
As America prepares for that annual tradition of watching the best-of-the-best go to battle on the first Sunday evening in February, if you have ever wondered why certain retailers, restaurants and others “cryptically” refer to the Super Bowl® as “The Big Game”, wonder no longer.
The Super Bowl® is a registered trademark of the National Football League (NFL) and one of many registered trademarks that the NFL has invested in heavily and therefore takes very seriously. This seriousness is backed up by equally serious enforcement efforts to protect their trademarks; the NFL does not discriminate when policing their trademark portfolio and pursues companies big and small (and individuals, too) who may make the error in judgment by using the Super Bowl® in the marketing, advertising or for other commercial purposes when not licensed by the NFL to do so. And those licenses, as we know, do not come cheaply, with companies paying handsomely for sponsorships, broadcasting, memorabilia, apparel and others rights/licenses.
What does this really mean? If you are a local electronics store (we will for the purposes of this post call the store “John’s Electronics”), you cannot advertise a sale on T.V.’s with a “come get your new big screen before the Super Bowl®”, even if you properly insert the ® and indicate that the Super Bowl® is a registered trademark of the NFL. The NFL has not authorized John’s Electronics to use the Super Bowl® in its advertising or for any other purpose and does not want the general public thinking that the NFL has endorsed John’s Electronics or that John’s Electronics is otherwise affiliated in some fashion with the NFL. It’s the NFL’s brand and it gets to decide who it associates with for commercial purposes, and again, those associations come with a considerable price tag.
The same goes for restaurants offering a Super Bowl® menu for catering, a local organization advertising for you to “Come Watch the Super Bowl® Here!) or virtually any other use- even if used by a not-for-profit organization (though it may not be the NFL’s highest priority to come after a local charity it’s not worth the risk)- with the exception of certain usage of the trademark in the news stories (e.g. newspapers and other media are able to report on the Super Bowl® without having to purchase a license or other rights).
Speaking of use in the news, often people ask about the doctrine of Fair Use. Fair Use does allow- as the term suggests- certain fair uses that are permitted by law, such as in the news context. But without fully analyzing the potential use and whether it legally qualifies as Fair Use, it would be smart to avoid the use because even though you may think you are right, the NFL could think otherwise and with the significant financial and legal resources at its disposal, ultimately being right may cost you significantly and potentially greatly outweigh any benefit you could derive from even a proper Fair Use.
For those of us who may plan on tweeting, Facebooking (as my kids like to call it) or otherwise referring to the game in private or to our friends for non-commercial, advertising or marketing purposes, fear not. If, however, you are intending to refer to the national day of football celebration that we call the Super Bowl® for commercial, advertising or marketing purposes, better to stick with “The Big Game” to stay on the safe side.
As for our Firm, we have offices in New York, New Jersey and Boston, so some of us will be rooting for another Pats win and others will just be reliving years past when the Giants beating the Pats in The Big Game, the Super Bowl® or otherwise called our last dose of football until August.
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