“Super Sunday.” “The Big Game.” “Game Day.” There seems to be lots of synonyms for the Super Bowl. But why is everyone so afraid to use the term “Super Bowl”? Thomas H. Vidal, Partner, Abrams Garfinkel Margolis Bergson, LLP, says the National Football League (NFL) is very aggressive when it comes to enforcing trademark violations of its namesake football championship game.
“Super Bowl” was first used by the NFL in 1967 and later trademarked in 1969. A trademark is governed by both state and federal law and protects a word, phrase, name, symbol, or design of goods or services for possibly an indefinite period of time. In order to serve as a trademark, it must be distinctive (capable of identifying the source of a particular good). Organizations trademark names and phrases to protect others from exploiting it for financial gain. As such, the NFL warns all organizations — even churches — that the phrase Super Bowl is not available for fair use in advertisements. In 2007, the NFL sent a cease-and-desist letter to a church group in Indiana that had advertised a Super Bowl party with the intent of charging admission. This resulted in other church groups halting similar activities.
While major beer companies and automobile manufacturers lay out millions of dollars to use “Super Bowl” in their advertising, especially when it gets close to the game, businesses circumvent the trademarked phrase by using other ones such as the Big Game and Super Sunday. The NFL filed a trademark application for the Big Game, but was met with great opposition from businesses and colleges.
To legally use a trademarked phrase, an exception must apply, such as when the term is being used to discuss or comment upon the event or to criticize it. (“So this discussion would be exempt — I hope,” says Mr. Vidal.) Media outlets and bloggers are exempt from being subject to charges of trademark violations.
Mr. Vidal litigates various intellectual property matters such as copyright, patent, trademark, trade secret, licensing and contract, business torts, antitrust and unfair competition. He handles civil trials in state and federal court in the technology, entertainment and media and consumer product industries. He is lead trial counsel for the plaintiff in the copyright takedown case Equals Three, LLC v. Jukin Media, Inc., a closely watched case involving case involving fair use, which is set for trial on March 1 in Los Angeles federal court.