If you haven’t shelled out at least $1 million in a sponsorship deal with the NFL, what will you call what you watch on Sunday? The NFL owns at least eight trademarks (including “Super Bowl”, “Pro Bowl” and “Super Sunday”) and has a nasty reputation for being overly aggressive about protecting their IP. It also owns the copyright in the telecast of the game itself, although enforcement has been narrowed on this front, as the NFL tries not to be a spoilsport about Super Bowl parties that don’t charge an admission fee.
The NFL uses its rights in trademark and copyright to send piles of cease-and-desist letters each year, accusing third parties of IP infringement in relation to their Big Game IP. They even tried to trademark “Big Game” in 2006, abandoning their efforts only because the phrase commonly referred to the game played between college football rivals, Berkeley and Stanford. Two years ago, electronics retailer H.H. Gregg threw a hail Mary, referring to a football-season promotional event as its “Super Sale XLVI”. This year, the most amusing workaround comes in the form of Stephen Colbert’s week long coverage of all things football (and some things ornithology) known as the “Superb Owl XLVIII”.
The pervasiveness of euphemisms and substitutions for the NFL trademark highlight the problem with overly aggressive IP protection, especially when the zealousness stems from a deep-pocketed organization like the NFL. It’s that the core legal basis of the protection gets lost. Trademarks are designed to prevent confusion in the consumer’s mind, not give the owner full control over the use of the words. On that Sunday, there is precisely one football game being played, and exactly zero confusion about which game that is. The NFL does have the right to pursue action against those who create a perceived affiliation to the event or to the NFL, preventing unauthorized profiting off of their trademark.
But when news outlets (and even commercial outlets expressly denying any affiliation with the NFL) who legally can use the trademarked words but don’t, for fear of being tackled by the NFL, the popular notion of the scope of trademark protection is distorted. The concept of fair use, generally a copyright safe haven, applies to trademarks as well, insofar as calling the event by its name for the purposes of education or reporting is perfectly acceptable. Nominative fair use allows the use of a trademark when there is no better alternative reference. In that case, enjoy Super Bowl® XLVIII this Sunday!