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

from the the-big-game dept

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.

Filed Under: big game, super bowl, trademark, trademark abuse
Companies: nfl


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  • icon
    Anonymous Anonymous Coward (profile), 31 Jan 2020 @ 9:41am

    Filthy lucre

    Does anyone remember when sport was about sports? Given the encroachment of money and IP into the activity, today (and for a long while now) money has became more important than the activities. That the public goes along with this travesty only emphasizes the shamefulness of the action.

    I am old enough to remember enjoying sports, both playing and watching in person and on TV. No longer, I avoid sports far more avidly than the plague. And the trend says that it will take longer than a few lifetimes until there is any possibility of this reversing itself (if it ever does), and then only after much kicking and screaming (of those in control of the money, not those on the playing field), caused possibly by the kicking and screaming of the public (but not fans). I worry about the example of the Romans and their games in the Coliseum. Look what it took to stop those.

    The real question is, will sport actually survive in any resemblance of what it once was?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Jan 2020 @ 11:33am

      Re: Filthy lucre

      Does anyone remember when sport was about sports?

      Nope, and I'm 40. Maybe the 90 year olds remember?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Jan 2020 @ 12:25pm

        Re: Re: Filthy lucre

        Not quite that old, but I did watch TV turn sports players into professional entertainers, with all the greed and publicity that went with becoming a star.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 31 Jan 2020 @ 12:41pm

          Re: Re: Re: Filthy lucre

          This isn't something new to TV.

          Ever heard of a slugger called Babe Ruth? Maybe a fella named Joe DiMaggio? They were as big of pop stars as anyone in Hollywood.

          Or even a century ago, when the Chicago "Black Sox" accepted around $50,000 in bribes from gamblers to blow the World Series?

          Perhaps you've heard about the first million-dollar boxing match, Jack Dempsey vs. George Carpentier, way back in 1921? How about when Al Capone reportedly bribed referees to fix matches in Dempsey's favor?

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Jan 2020 @ 2:47pm

        Re: Re: Filthy lucre

        Me either.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Jan 2020 @ 12:27pm

      Re: Filthy lucre

      MLB has been about the money at least since Shoeless Joe Jackson got banned for the Black Sox scandal over a century ago.

      NCAA coaches, either basketball or football, have often been the highest-paid state employees since the 1950s.

      Do I even have to say anything about motorsports like NASCAR and Formula One?

      There's nothing new about this.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Jan 2020 @ 2:41pm

      Re: Filthy lucre

      Like several other commenters have already said, there's nothing new to this. What I find really troubling over the past thirty or so years is sports leagues worth billions of dollars demanding either taxpayer subsidies or taxpayers outright paying for construction of their stadiums and arenas -- and then turning around and demanding yet another new venue a mere two decades later because it isn't "modern" enough, again at taxpayer expense.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Feb 2020 @ 8:10am

        Re: Re: Filthy lucre

        Then, after having taxed the populace in order to build their stadium, they have the nerve to name it after some douchebag corporation who had nothing at all to do with it.

        Oh - and they could pay their cheerleaders a living wage not require them to attend the "parties".

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jan 2020 @ 10:09am

    It's my understanding that the NFL cannot claim to own anything relating to owls, superb or otherwise.

    See also supper bowls, super bowels, soup or bowls, sue per bowls, superbo lulz, or any such nonsense.

    reply to this | link to this | view in chronology ]

  • identicon
    Chuck Sod, 31 Jan 2020 @ 10:27am

    It's the war on Superbowl!

    reply to this | link to this | view in chronology ]

  • identicon
    AricTheRed, 31 Jan 2020 @ 10:43am

    Don't mind me, I'm just here for the snacks.

    The only reason I participate in any of the Stupid Bowl festivities is for the snacks.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jan 2020 @ 10:51am

    Meanwhile Reddit’s superbowl subreddit continues to have exceptional birds on display.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 31 Jan 2020 @ 10:58am

    No Farting Loud has a problem with Super Bowels. Thanks to anon up there for this insanely bad joke.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jan 2020 @ 12:43pm

    No Fun League

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jan 2020 @ 2:33pm

    The IOC is worse

    You think this is bad, just wait until this summer when the International Olympic Committee engages in its usual shenanigans.

    reply to this | link to this | view in chronology ]

  • icon
    UriGagarin (profile), 31 Jan 2020 @ 2:39pm

    Not being au fait with this ..

    But isn't this the final between 2 leagues ?
    So call it the most boring factual name you possibly can. And take great delight in telling everyone it.

    reply to this | link to this | view in chronology ]

  • identicon
    Dave, 31 Jan 2020 @ 6:39pm

    Nuisance, not nuance.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jan 2020 @ 8:40pm

    It is strange that Fox, which has rights to the game is using "The Big Game" in their advertisements as well. I certainly don't understand that, unless the NFL is trying to get the rights to "The Big Game" as well.

    reply to this | link to this | view in chronology ]

  • icon
    sparkydoc (profile), 1 Feb 2020 @ 9:18am

    Super - uh - Thing

    Perhaps, Like Voldemort, it should be referred to as "The Game That Must Not Be Named".

    reply to this | link to this | view in chronology ]


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