Super Bowl Copyright & Trademark Infringement; An Advertiser’s Gameplan

Superbowl Copyright Infringement

It’s that time of year again so grab some chips and dip, and a beer (or two) and head to the big screen for ”The Big Game.” Be careful not to use the word, “Super Bowl,” because the NFL has trademarked this word and if they believe you have affiliated yourself with or otherwise sponsored or endorsed promotions using the Super Bowl trademark, you will most likely be found liable for trademark infringement.

Now I know what you’re thinking, “Can a brand really not use the term, Superbowl?” This creates a likelihood for consumer confusion within advertising and marketing companies.

What is Trademark Infringement?

Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees. By the NFL establishing the Super Bowl as a trademark, it has restricted the right or power for others to use the mark for their own commercial benefits. According to the Broadcast Law Blog, the NFL owns at least eight trademark registrations containing the words “Super Bowl,” “Probowl” and “Super Sunday.” The NFL also owns copyright to the telecast for the game itself.

Now there is something called, nominative fair use, which means that trademarks can be used under certain conditions but can not be identifiable without use of the trademark. You can only use the trademark to the extent necessary to identify it and you can not do anything to suggest a falsely suggested sponsorship or endorsement by the trademark owner. Remember that the NFL appreciates some hype about the game to attract viewers and general consumer interest in the game.

Copyright vs Trademark Infringement

Copyright infringement is a form of protection provided by authors of original works of authorship. In other words, the copyright protects the form of expression, rather than the subject matter of writing. Examples of copyright infringement include literary, dramatic, musical, artistic and other creative works. Copyrights are registered by the Copyright Office of the Library of Congress.

Now remember, some things, such as more complex logos, may qualify for BOTH trademark and copyright protection. This is because the amount of original authorship in a logo can vary greatly. According to the National Football League’s Terms and Conditions, they own all copyright rights in the text, images, photographs, video, audio, graphics, user interface, and other content provided on their services, and the selection, coordination, and arrangement of such content. Anyone who is not an official sponsor of the NFL is prohibited from copying, reproducing, modifying, distributing, displaying, performing or transmitting any of the contents of the services for any purposes.

Trademark law protects commercial brand names, logos, slogans, and other elements by use of representing a company or product. According to the National Football League’s Terms and Conditions, they own all rights in the product names, company names, trade names, logos, product packaging and designs of the National Football League and such member clubs, and third parties own all trademarks in their respective products or services, whether or not appearing in large print or with the trademark symbol. Anyone who is not an official sponsor of the NFL is prohibited under the trademark laws of the United States from including reproduction, imitation, dilution or confusing or misleading uses.

The Power of the NFL Trademark

The NFL is very strict about protecting their trademark. According to Copyfutures, the NFL holds the property rights to all phrases relating to the Super Bowl and enforces extremely strict rules about which ones may not be legally broadcast by marketers and promoters not authorized by the NFL. They also create the Super Bowl, chose its venues, and control the distribution of all related material with the understanding that they also have the right to control this distribution for a certain period of time after the Super Bowl.

All of the tickets are printed with the disclaimer that no one inside the stadium can give accounts or descriptions of the game to media without press credentials. This means that radio or television stations need to obtain press credentials before the Super Bowl, they can’t report or comment on the game while it is going on. The only legal option is to report on the news of the game after its over, basically who won and what the score was.

Want to know something even crazier? Did you know that you can’t watch the Super Bowl on a television screen larger than 55 inches? It’s right there in the law, sort of U.S Code, Title 17, Chapter 1, Section 110 called, “Limitations on exclusive rights: exemption of certain performances and displays,” lists 12 of these exemptions to copyright restrictions.

Tackling the Word “Super Bowl”

According to Business Insider, the trick to not stepping on the NFL’s toes is to come up with a clever play on words so consumers clearly understand that the advertisement is in relation to the Super Bowl, but never using the exact terms. Basically stay away from team names, team logos, the word “Super Bowl,” and any other trademarks that are protected.

Also stay away from hashtag Super Bowl (#SuperBowl). A business creating a hashtag with someone else’s brand is not a good idea, especially the NFL. Keep in mind that anything you tag or associate with the NFL becomes the property of the NFL. It doesn’t matter what is infront of the word “Super Bowl,” like a hashtag (#), because the word “Super Bowl” is trademarked by the NFL.

How to Avoid Super Bowl Copyright Infringement

  • The Big Game
  • The Professional Football Championship Game
  • The Big Bowl Game
  • Super Football
  • The date of the game
  • The names of the cities of the teams, not the actual team names, competing in the Super Bowl
  • You can make fun of the fact that you cannot say the word “Super Bowl” by bleeping it out

Touchdown!

Well we’ve made it to the goal line! Now go ahead and enjoy that Super Bowl party you were planning. Just don’t charge your friends admission to see the game or you will be violating copyright enforced by the NFL and don’t even think about selling those t-shirts with your favorite football team logo on them, thats violating trademark enforced by the NFL! Enjoy the game and Happy Sunday Football!

If you have found a safe, creative way to mention “Super Bo@#,” please mention it in the comments below.


  • http://thedsmgroup.com/ Jason Diller

    Nice post @Katelyn. The NFL sure is difficult to deal with for this stuff.

    Cheers.

  • Lydia K

    You mention “Super Sunday” as a protected term by the NFL, but it’s also listed under the phrases that are okay to use.

    • Katelyn_Schweighardt

      Lydia,

      Thank you for pointing this out to me. It’s always nice when another pair of eyes catches something I might have missed! The phrase, “Super Sunday” does not appear to be in the Constitution & Bylaws of the National Football League, however, the Broadcast Law Blog does know their stuff so I don’t doubt that “Super Sunday” is trademarked by the NFL.

      My advice would be to completely avoid the phrase “Super Sunday” as there are multiple alternatives to use. This topic is extremely tricky for companies who want to advertise for the Super Bowl so clarification is always appreciated! Thanks again for pointing this out, now lets get ready for “The Big Game!”

      Katelyn

      • Jaymoon

        “Super Sunday” is the name of the programming on TV and Radio the day of “The Big Game”.

        It’s a trademark within the context of referring to coverage of the game. So it would be OK to say “I’m going dancing with the stars tomorrow”, but NOT OK to make a TV show and call it Dancing With The Stars.

  • Dennis McClendon

    How much should I trust the advice of a firm that doesn’t know the difference between copyright and trademark?

  • Cody McNeil

    DID U EVEN CARE TO READ THIS ARTICLE. It says 55″ tv or larger is not an infringment on copy

    § 110 . Limitations on exclusive rights: Exemption of certain performances and displays43

    Notwithstanding the provisions of section 106, the following are not infringements of copyright:

    • Katelyn_Schweighardt

      Cody,

      Great point! The law is very confusing and there are so many limitations and loopholes but my understanding of it is that TV broadcasts and movie showings can only be displayed so long as, “no such audiovisual device has a diagonal screen size greater than 55 inches and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers.” Basically, you can have a TV larger than 55 inches but not with more than 6 loudspeakers!

      The rules get really specific and apply differently to small and large venues and come with restrictions on how many TVs or radios can be used in a place of business without getting into trouble. Basically, if you want to stick a bunch of TVs in a sports pub or put up massive 80 inch panels, you’ll need to negotiate some sort of arrangement with the copyright holder. I thought it was crazy that this was even in the law, but hey! You never know what you’ll find in there!

      Katelyn

      • Cody McNeil

        It’s in the first sentance of section 110. meaning everything below is NOT Copyright infringement listed in the subsections. It is basically layingout regulations so the MPAA can’t sue churches and such for watching a movie.

        • Cody McNeil

          Also its underlieing for businesses etc.. this isn’t for consumer. As long as you don’t charge or redistribute it your fine you read far to deep into this trap of words… I hate politics. .

      • Cody McNeil

        Read section 5(A) i and ii. U can’t charge for people watching your 60+” tv

  • Kyle Marvin

    Can we use the term just in speaking on social media? Like not an ad or anything. Also, is the term “World Championship” infringing?

    • Katelyn_Schweighardt

      Great question Kyle!

      Using the term, “Super Bowl” on social media would be tough to prove trademark infringement in a court of law..as long as you don’t label yourself as an official sponsor.

      If you wanted to post about the perfect Super Bowl dip recipe on your Facebook page, this would most likely fall under, “Nominative Fair Use,” making it okay to say. However if you post on your Facebook page and say, “The official Super Bowl dip recipe,” this kind of language could imply a sponsorship or association with the NFL/Super Bowl, which would then mean you violated the NFL’s trademark rights.

      Just be careful..you might be better off referring to the “Super Bowl” as “The Big Game” when using the term on social media!

    • Katelyn_Schweighardt

      As far as using the term “World Championship” this is a very broad term and you possibly could be liable for trademark infringement but not just for the NFL. Saying, “World Championship” could be trademark infringement on soccer events like the World Cup or even the Olympics.

      If you refer to the “Super Bowl” as the, “NFL World Championship Game,” this is trademark infringement so you need to be careful! I would stick to my list of ways to avoid Super Bowl copyright infringement! This will help you a lot!

  • judiwindow

    Does anyone know if the term #superbowl (with a hashtag) is within the copyrights of the NFL?

    • Katelyn_Schweighardt

      @judiwindow:disqus This is a great question! A business creating a hashtag with someone else’s brand is not a good idea, especially the NFL. Keep in mind that anything you tag or associate with the NFL becomes the property of the NFL.

      If you take a picture and tag it as the “Super Bowl” and then post it on your website, the NFL lawyers could possibly claim it as copyright infringement. I don’t think it matters what is infront of the word “Super Bowl,” because the word “Super Bowl” is trademarked by the NFL. You should probably avoid saying it all together, just to be safe!

  • http://thedsmgroup.com/ Jason Diller

    @judiwindow:disqus I don’t think it is, but I’m not 100% sure. I will have @Katelyn_Schweighardt:disqus take a look at that and include it in the blog post.

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