Is it the Super Bowl or The Big Game?
The NFL playoffs are over, the AFC and NFC championships have been decided, and you know what that means: lots of advertisements about “The Big Game!” Which Big Game? The Super Bowl, of course.
Everyone knows it’s called the Super Bowl. Why do advertisers and businesses large and small use the codeword “Big Game?” Can we all just use the term “Super Bowl” after all?
The NFL owns multiple trademark registrations for the mark SUPER BOWL. Over the years, they have been awfully aggressive about protecting the name – arguably, much more so than is required for them to retain their trademark rights. Of course, they have a greater mission in mind: monopolizing the use of the term so they can extract lots of money from their officially sanctioned advertising partners.
So who can use the term “Super Bowl?” Well, it’s undisputed that you and I can use the term in everyday language. News reports can refer to the game with its proper name. I can even use it in the title of this blog post. In no way am I using the mark as a trademark for my services. Nobody would think that this blog is the place to watch the game or purchase official NFL merchandise. Although if the League wants to work out a sponsorship deal, they know where to reach me.
How about advertisers? Some wise commentators feel that advertisers should be entitled to use the term based on the legal theory of “Nominative Fair Use.” Here are some links to articles supporting that position: Public Citizen’s Consumer Law & Policy Blog; TechDirt; and Ron Coleman’s Likelihood of Confusion blog.
There are three factors to determine if use of a mark is nominative fair use:
- The mark must not be readily identifiable in any other way.
- The mark can only be used to the extent necessary to identify it.
- The mark can’t be used in such a way as to suggest a false connection or sponsorship arrangement.
Factors 2 and 3 should be fairly easy for your local TV store or sports bar to meet. Let’s say their advertisement only uses the term Super Bowl once, and includes a disclaimer stating that they are not sponsored by or affiliated with the NFL. That seems about right.
Factor 1 is the tough one. Given that nearly every conscious human being – certainly in the US – knows what “Big Game” is being referred to when advertisers talk about this Sunday’s event, it seems to follow that the mark SUPER BOWL is readily identifiable in another way.
Why is “The Big Game” such a recognizable synonym for the Super Bowl? Because the NFL has been so aggressive over the years that everyone has been forced to adopt that phrase as a substitute. The NFL has created their own reality.
Not only that – a few years ago the League tried to protect THE BIG GAME as a trademark. It didn’t work out. But you sort of have to admire their creativity.
All in all, nominative fair use factor number one seems like a fairly weak hook on which to hang an annual onslaught of cease and desist letters issued by the NFL’s lawyers. But until someone is willing to stand up and fight for the right to use the actual term of this giant sporting event, the NFL will be the sole referee over who gets to use the word Super Bowl.
Sadly, I have to recommend that businesses and advertisers avoid using the term SUPER BOWL unless they want to be the hero to lead us all out of the tunnel and onto the field of trademark fair use glory.