Don’t Get Clipped by the NFL

By Jeffrey M. Kaden

This Sunday, Super Bowl mania invades Atlanta, Georgia. Many local and national businesses have been gearing up for weeks with marketing campaigns focusing on perhaps the most popular sporting event of the year.

But while the event brings numerous business opportunities, it also creates certain legal obstacles. The National Football League has always been very protective of its trademarks — especially the name SUPER BOWL— so businesses need to think out of the box in advertising and promoting their products and their activities.

Way back in 1969, the NFL obtained federal trademark protection for the term SUPER BOWL. Based on its history, the NFL is very vigilant in enforcing its trademark rights in the SUPER BOWL name. As a consequence, many of the commercials that run during the Super Bowl do not make specific reference to the game by name and often just have a football or sports related theme.

From the NFL’s standpoint, if a business uses the SUPER BOWL term without permission, it could appear as if the business is an “official” part of the Super Bowl festivities.

Unfortunately, the NFL’s vigilance means that businesses, including small mom-and-pop stores as well as local bars hosting a “Super Bowl” party, cannot, for promotional purposes, legitimately use the SUPER BOWL name. Of course many do so even though there is a risk of the NFL going after them.

Indeed, in an extreme example, the NFL, back in 2007, sent a warning letter to an Indianapolis church that planned to have a big-screen viewing party to support the Colts football team.

Legally, if the NFL did not routinely police its trademark rights in the SUPER BOWL name, the value of the NFL’s ability to license the SUPER BOWL name would decrease significantly. In other words, the NFL could lose a lot of money if it did not control the use of the SUPER BOWL trademark.

It therefore makes sense for businesses to always play it safe.

For example, businesses could use the phrase “Big Game” or “Game Day” instead of the SUPER BOWL name.

So the general rule of thumb is as follows: One can always use the SUPER BOWL name in discussing or reporting on the event, such as mentioning who’s playing on social media. On the other hand, if you have a product or service, it must be clear that it is not associated with the NFL. Therefore, unless you are an official sponsor, a business should steer clear from using the SUPER BOWL term in its advertising.

The bottom line is that for any unauthorized business, the best thing to do is to come up with a marketing plan that avoids using the SUPER BOWL term. Doing so may be undesirable, however, the alternative could draw more than a penalty flag. It could well mean a notice letter from the NFL or even a lawsuit filed in federal court.