“The Big Game” Can Lead to Big IP Risks: Using "Super Bowl" in Advertising

Last year, Super Bowl XLIX was watched by more than 114.4 million viewers, and the cost for a 30-second advertisement spot during the broadcast went for a record $4.5 million. And of course, businesses – small and large – who are not paying millions of dollars for these advertising slots still want to capitalize on the interest in the lead-up to the game as well as the game itself. Businesses may come up with advertisements and promotions referring to the Super Bowl® in an attempt to benefit from the name recognition of the Super Bowl. But more times than not, they do not have permission to reference the Super Bowl in these ads/promotions. Referencing the “Super Bowl” in ads/promotions without permission from the NFL can lead to big intellectual property (IP) risks, including possible trademark and/or copyright infringement. So what are some ways that ads/promotions be done around the time of the Super Bowl without stepping on the NFL’s toes?

The NFL has multiple federal trademark registrations on the phrase “Super Bowl” in connection with numerous goods/services and has not been afraid to assert its rights. Advertisers have reacted to these assertions by replacing the “Super Bowl” with “The Big Game” in their advertisements (if they do not have permission from the NFL) because the NFL has not registered “The Big Game.” Unsurprisingly, in 2006, the NFL attempted to register the phrase when advertisers began to use it more regularly. But after much opposition from the public, the NFL abandoned their efforts to trademark “The Big Game.” Accordingly, using the phrase “The Big Game” can be a generally acceptable way to avoid possible trademark infringement allegations.

So what about a bar promoting that it is hosting a Super Bowl event or party? Again, as with advertisements, the bar should avoid using the words “Super Bowl” in its promotion of the event. But copyright issues also may arise in connection with showing the game at the bar in certain situations. If a bar typically shows television programs, such as games, on big screens or using a projector on its premises, the bar already likely has a public performance license to do so. If the bar does not have a public performance license, it may need a commercial license from the cable or satellite television provider to show the game. Also, the bar should be careful and not charge a fee to watch the game, lest it end up like the Indiana church group who received a cease and desist letter from the NFL in 2007 for advertising a Super Bowl party having a $3 charge to cover snacks.

The Super Bowl is perhaps the biggest sporting event and television event in the world. It may be enticing to attempt to capitalize on the notoriety of the Super Bowl, but businesses should be aware that “The Big Game” can present big IP risks for the unwary.

For more information on this topic, please visit our Trademark and Copyright service pages, which are part of our Trademark and Copyright practices, respectively.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.Additional information about the IP law firm and its IP law attorneys may be found at www.klemchuk.com.

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