Hey Advertisers! Stop Believing The NFL's Lies About Trademark Law And Call The Super Bowl The Super Bowl

from the suck-it-up,-weenies dept

For years 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.


Reader Comments (rss)

(Flattened / Threaded)

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    Skeptical Cynic (profile), Feb 3rd, 2012 @ 9:05am

    I am hosting a Super Bowl party at my house

    and we are going to watch it on a TV with 70 whole inches of viewing pleasure. I hope the NFL complains because I would love to make a mockery of them. Plus I bet that if they go after me I can make some money from the crazy amount of press I will get as people gasp with shock at the whole matter.

     

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      Anonymous Coward, Feb 3rd, 2012 @ 11:19am

      Re: I am hosting a Super Bowl party at my house

      What if use four TVs that each measure ~54inches and carefully arrange them in a quadrant pattern so that each screen only displays 1/4 of the overall video feed but the composite size of all video is >200inches of Superbowl?

      Will that ok?

       

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    ken (profile), Feb 3rd, 2012 @ 9:28am

    Generic Trademarks.

    The best weapon against trademark bullies is to have their trademark become genericised which effectively causes them to lose all trademark protections.

    Victims of Trademark bullying should seek from the courts to have the bullies names become generic as a defence against this form of corporate intimidation.

     

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    Simon, Feb 3rd, 2012 @ 9:36am

    Dear NFL...

    If I cared about the Super Bowl I would watch the Super Bowl on my 120" screen and perhaps have a Super Bowl party with some other Super Bowl loving friends. Fortunately I don't care about the Super Bowl, so thankfully your business is safe.

     

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      Franklin G Ryzzo (profile), Feb 3rd, 2012 @ 9:45am

      Re: Dear NFL...

      I too am not interested in watching the Super Bowl this year. If the Ravens had been in the Super Bowl this year I would definitely be watching the Super Bowl with several friends this Super Bowl Sunday at a Super Bowl party. But alas, The Ravens didn't make it into the Super Bowl, so I'm sure I can find something better to do while the Super Bowl is on... like burning Tom Brady (previous Super Bowl MVP) and Eli Manning (previous Super Bowl winner) in effigy. For everyone that does watch the Super Bowl I hope you enjoy the Big Game!

      Super Bowl Super Bowl Super Bowl Super Bowl Super Bowl Super Bowl

       

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    Calvin (profile), Feb 3rd, 2012 @ 9:36am

    Perhaps they just need a Super Bowl of Weetabix for breakfast to give them courage!!!

     

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    Anonymous Coward, Feb 3rd, 2012 @ 9:44am

    ignore them

    maybe referencing it as "the big game" is actually better. the less we use the term superbowl the faster it will fall out of general usage and then the whole phenomenon can finally slide into oblivion. i mean who really wants to watch the big game? snore.

     

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    BeachBumCowboy, Feb 3rd, 2012 @ 9:47am

    Game watching party

    Hey Techdirt,

    You are all invited to come watch the great athletic event held once a year, roughly 7 weeks before the vernal equinox, played by large athletic males of the teams representing persons who love their country, as well the unusually large persons living in the 3rd largest state of the union of former colonies located in North America. This year said contest will be be held in the capital city of the state admitted on December 11, 1816 to said union, inside the domed sports arena named after a regional manufacturer and distributor of automotive oil, additives, and lubricants.

    We will be watching said contest on the large viewing apparatus designed and constructed by the leading electronics maker from the southern most country of the Korean Peninsula, with service provided by the cable provider recently separated from the large conglomerate media company with interests from magazines, to movie studies, and recently Internet providers. It should be a good time with food provided by various crispy tortilla manufacturers and fried spicy chicken wings traditionally associated with a Northeast city located along the border of the two northern most countries of North America.

     

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    Marcos, Feb 3rd, 2012 @ 9:48am

    And, of course, FIFA is pushing Brazilian government and Congress for legal grants to its own trademark bullying (http://agenciabrasil.ebc.com.br/new-in-english/2011-10-07/news-english-%E2%80%93-controversy-contin ues-over-fifa-rules-brazilian-law-and-2014-world-soccer-cup) the same way they did in South Africa in 2010 (http://www.internationallawoffice.com/newsletters/Detail.aspx?g=f8802688-e6f7-4af6-b648-97f0b404cdd 3).

     

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    Stephen Pollei, Feb 3rd, 2012 @ 9:56am

    Yes especially news organizations shouldn't put up with that kind of nonsense. If I was a news organization who was threatened with that I think I'd say "fine if we can't come to a agreement within 30 days, then I promise I won't mention your event for 5 years and I'll encourage other news agencies to do likewise"... It's free advertisement for them.

     

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    Anonymous Coward, Feb 3rd, 2012 @ 10:47am

    Just to show that I'm not always a negative nelly or anti-TD, I wholeheartedly agree with this article.

    Signed,

    Evil IP Lawyer Shill Troll Bogeyman

     

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    Paul Alan Levy (profile), Feb 3rd, 2012 @ 11:29am

    My favorite reaction to my blog post

    Came from someone connected to one of the media entities in question, who suggested that while we are in euphemism land, maybe it should be called "the Big Head-Trauma-Denial-And-Coverup Game."

     

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    Anonymous Coward, Feb 3rd, 2012 @ 12:26pm

    Next you can't say NFL

    Next they'll be say that you can't use the term NFL unless you're an official sponsor, We'd then have to call it...

    "the cartel of owners of clubs with a bunch of big guys playing a game with a funny shaped ball"

     

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    Chris, Feb 3rd, 2012 @ 2:37pm

    Couldn't someone just get a declarative judgement to this effect and put the whole matter to bed?

     

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    gfisher00, Feb 3rd, 2012 @ 8:57pm

    Superbowl

    Superbowl! Superbowl! Superbowl! There, now am I in trouble for saying it?

     

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    Anonymous Coward, Feb 4th, 2012 @ 8:02am

    >Superbowl! Superbowl! Superbowl! There, now am I in trouble for saying it?

    Great now you've done it. You have invoked the Beetlejuice clause and summoned the NFL lawyers who are demons from beyond.

    The only way to make the NFL Lawyers happy is to stop talking about it and totally ignore the game that cannot be named.

     

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    Anonymous Coward, Feb 4th, 2012 @ 8:10am

    Is my TV too big?

    Uh now that TV's larger than 55" are somewhat common- is it copyright infringement to watch the game that cannot be named(TM) on one by your self?

    http://www.techdirt.com/articles/20070201/140812.shtml

     

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    Leigh Ann Kristiansen, Feb 6th, 2012 @ 8:04am

    It's about darn time...

    I'm glad to hear someone state the obvious. You cannot trademark the name of a product and prohibit the use of that name in everyday conversation. It's ridiculous and about time consumers and advertisers stand up to it. Shame on the NFL for their greediness in trying to do the same with "the big game", too!

     

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    Tex Arcana (profile), Feb 3rd, 2013 @ 11:57am

    Well, my party to watch the Stupor Bowl(TM: Fuck You, NFL) will consist of my lovely 58" Samsung Plasma TV, my wonderful wife sitting next to me, and my Dish Hopper to pause, replay, slow-mo, and even perhaps skip commercials.

    We will dine, whine, scream, and laugh at the content of said Stupor Bowl(TM:FUNFL). And if the game becomes a stinker, the teams involved will gain suitably derogatory names, the NeeFLe will gain yet another one, and the Stupor Bowl(TM:FUNFL) shall continue to be the prime example of American corporate stupidity, for at least another 30 seconds or so.

     

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    Anonymous Coward, Mar 22nd, 2014 @ 3:18pm

    The NFL are pirates!

    Of course someone should sue the NFL for using the term football.
    The game they play is an obvious copy of the original Rugby Football, so if they want to use the term they should be paying a licence fee of a percentage of their earnings to the inventor of the idea that they have stolen.

     

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