from the the-big-game dept

It's That Time Of Year: No, The NFL Can't Stop Every Business From Using 'Super Bowl' In Every Instance

It's an annual tradition here at Techdirt, something like our deranged version of Christmas. Whenever the start of February rolls around, we gleefully point out to all that will listen that the NFL's stance on how strictly it can control its trademarked term, "Super Bowl", is largely fantasy. Through a combination of overly aggressive enforcement against smaller entities, constantly repeating it has rights it actually doesn't, and a largely unhelpful mass media that simply takes these claims as gospel, far too many people and companies think they can simply not state the factual claim that the Super Bowl exists and occurs around this time of year.

And so we find ourselves with everything from commercials, product sales, and local events that reference "The Big Game", when the reality is that the only game being played here is with the public. That game is make believe, where companies use euphemisms that the public clearly understands to reference the Super Bowl, and the NFL pretends this is somehow different than using the factual term itself. And, again, major media outlets play along for some unknown reason.

As the Super Bowl approaches, many brands have been mentioning “the big game,” describing things as “super” and emphasizing their connection to the general sport of football in their advertising, but they can’t mention the Super Bowl without paying the NFL, which owns the trademark on “Super Bowl.”

“It’s something that they’ve built up equity in,” said Tony Ponturo, CEO of sports business consulting firm Ponturo Management Group and a former sports and entertainment marketing vice president for Anheuser-Busch. “They’ve invested millions and millions and, at this point, probably close to a billion dollars in the game, the event.”

None of which changes the fact that you cannot trademark factual information. Were a company to claim endorsement by the NFL, or claim some official sponsorship of the game, or perhaps even use the term in an extremely vague way, then the NFL probably has a trademark claim to make. But the league also happily goes after bars that advertise Super Bowl parties. They've gone after churches for doing likewise. And they go after any commercial interest that even mentions the existence of the Super Bowl.

That is not trademark infringement.

And, again, this is all ultimately stupid, given how easy it is to skirt trademark law anyway.

Of course, there are ways to get around the trademark. There are all those “big game” deals. When Ponturo was at Anheuser-Busch, the company hadn’t yet paid to make Bud Light the NFL’s official beer. So in the late 1980s, they came up with the “Bud Bowl,” a series of commercials featuring bottles of Budweiser facing bottles of Bud Light on the gridiron.

“The fan understood what it was,” he said. “We tied it ultimately into TV creative as well, which is how Anheuser-Busch first started to be the only beer in the telecast.”

Then what are we all doing here? If the NFL's interpretation of its trademark rights is overly broad, and if companies use other names to get around those same claims so often that the public knows exactly what is going on, then what is the point of any of this? Yes, the NFL has a valid Super Bowl trademark and, yes, it can certainly enforce the rights such a trademark affords it. But pretending there is no nuance to those rights doesn't change the fact that the nuance exists and far too many companies are happy to bow at the altar of the NFL, or simply play word-games to keep it at bay.

One of these years I won't have to write this annual post. 2020, it seems, is not that year.