now, we've mocked how the NFL insists that no one can use the term "Super Bowl" in an advertisement unless they're an official sponsor of the event. That's why it's become so typical to see advertisers using "the big game" instead -- though, five years ago, the NFL even sought the trademark
on "The Big Game" because so many advertisers were using it. However, Paul Levy rightly takes advertisers to task for being "weenies" and not standing up to the NFL on this
. As he says:
Of course, the NFL's position is nonsense -- this is a nominative use that is just as permissible as, for example, referring to the "Chicago Bulls" instead of "the two-time world champions" or "the professional basketball team from Chicago" (Judge Kozinski's example from a different era, when the Bulls mattered).
Basically, the game is
called the Super Bowl, and calling it that isn't trademark infringement, so long as you don't imply that you're an official sponsor or otherwise officially associated with the game. Of course, where it gets even more ridiculous is when news organizations
heed the NFL's warnings over this -- such as the email Levy received from the Boston Globe
(pdf) about the Super Bowl, where the term doesn't appear at all. Levy points out that it's simply ridiculous that a news organization (and a big one with plenty of lawyers who get this) would still not use "Super Bowl." Levy suggests we start calling such ridiculousness out:
Instead of praising retailers who skate close to the edge, we should take a page from David Bollier’s excellent Brand Name Bullies and call them Brand Name Weenies. Indeed, it is disappointing that a major metropolitan newspaper that belongs to an 800 pound gorilla like the New York Times Company is unwilling to defy the NFL by using the term in in its advertising. The Times and the Globe certainly advertise their coverage of the New York Giants and the New England Patriots, also trademarked names. If big players like the Times don’t have the cojones to stand up for bullying from the NFL, they make it harder for everybody else.
In their recent book Reclaiming Fair Use, Pat Aufderheide and Peter Jaszi warn that when we refrain from exercising our fair use rights, and act as if those rights do not exist, we help create a culture in which fair use loses ground to overly aggressive copyright enforcement. The same is true in the trademark realm. We can only hope that when the next Superbowl rolls around, the Times and its brethren, and even the HDTV sellers, will have shed their timidity.
It's the Super Bowl. Call it the Super Bowl. Just... uh... don't have too many friends over to watch it on a big screen. Because that's copyright infringement