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Watch for Those Super Bowl Promotion Trap Doors

Advertising for the big game calls for a careful review of the rules

It’s finally Super Bowl week. Wait – can we say that? We are only half kidding.

The Super Bowl means big money and the National Football League is very good at protecting its monetary interests. Mitchell Stabbe, trademark law specialist at Wilkinson Barker Knauer LLP, writes on the Broadcast Law Blog about some rules to follow when advertising or promoting “The Big Game.”

The first thing to know is the NFL rakes in billions from broadcast rights to its games. Fox is expected to charge $8 million during the Super Bowl for a 30-second commercial. Broadcasters are smart to remember that if you use the name “Super Bowl” for any kind of commercial advertising or station promotion the professional football league will want to get paid for it.

“Given the value of the Super Bowl franchise, it is not surprising that the NFL is extremely aggressive in protecting its golden goose from anything it views as unauthorized efforts to trade off the goodwill associated with the mark or the game,” Stabbe writes on the blog.

He says broadcasters and news publishers have greater latitude than other businesses when referring to the Super Bowl, but still need to be wary of engaging in activities that the NFL may view as trademark or copyright infringement. Stabbe breaks it down this way: “Simply put, the NFL views any commercial activity that uses or refers to the Super Bowl to draw attention as a violation of its trademark rights.”

A Kansas City Chiefs helmet, the Vince Lombardi Trophy and a Philadelphia Eagles helmet are seen at a Super Bowl press conference ahead of the “The Big Game” on Feb. 3 in New Orleans. (Photo by Chris Graythen/Getty Images)

In addition, the NFL views the trademark rules very broadly, he says. Below are some examples of activities that create a significant risk of an objection by the NFL.

“Super Bowl” Sweepstakes or Giveaways. Radio stations should avoid incorporating “Super Bowl” in the name of any sweepstakes or giveaway or as a prominent feature of their advertising for the sweepstakes or giveaway. Such an incident will lead to a swift cease-and-desist demand based on the argument that consumers are likely to believe the sweepstakes or giveaway is sponsored by the NFL, Stabbe wrote in the blog. 

“Super Bowl” Events or Parties. “A bar or restaurant that has a public performance license to show television programs on its premises has the right to show the Super Bowl broadcast to its patrons, but if it uses the words ‘Super Bowl’ in its advertising to attract customers, the league will object,” Stabbe says.

Similarly, unless it is licensed by the NFL, a company should not be listed as the sponsor of a “Super Bowl” event or party. 

Still don’t believe the NFL takes this stuff seriously? Stabbe recalls that the NFL in 2007 sent a cease-and-desist letter to an Indiana church group that had used “Super Bowl” to describe a viewing party for the game and would charge $3 per person to cover the cost of snacks. The NFL has since said it will not object to religious organizations that refer to their events as Super Bowl parties if they request donations to cover costs.

Names of Programs. Even if a broadcaster is not with the TV or radio network that carries the Super Bowl, it may want to produce a program about the game. Stabbe says in years past, the NFL or a local team has challenged local broadcasters to include the name of a team in a weekly program dedicated to discussions about the team. “Thus, it would not be surprising if the NFL similarly objects to naming a pre-Super Bowl television program about the game if the program incorporates “Super Bowl” in the title,” he says. 

Stabbe also warns not to get too cute with name games. It’s safer to just call it “The Big Game.”

“For these reasons, for most broadcasters and other news organizations, the better course is to be aware of and avoid any possible pitfalls, rather than run the risk of litigation,” Stabbe posted in the blog.

Don’t forget that the same risks also apply to other sporting events like “Final Four” and “March Madness.”

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