Has this interpretation been tested in court? I don’t doubt what you are saying because I don’t do trademark law, but it seems silly to say that because my bar shows the Super Bowl on television that any person might believe that I have an official association with the NFL.
Does this extend to oral statements? If a customer asks me if I am showing the Super Bowl at my bar, and I reply “yes,” am I also creating this false association?
At this point, almost everyone universally knows that “Big Game” is just a euphemism for “Superbowl.” So does saying that your bar is showing the Big Game also create a false association with the NFL?
They should be as the bar is paying for the content it is displaying.
Trademark law is an old and well-developed area of the law. I’ll see if I get any time to find specific cases.
But remember there are two principles here—one being false association and the other being free-riding on the other’s goodwill. In this NFL situation even if there isn’t a literal false association, there is still free-riding.
You’re allowed to answer customers’ questions truthfully. The law is going to look very differently at a transaction like this as opposed to something posted for the public to see.
some trademarks have been lost, a big example is aspirin. It was originally a trademark of Bayer. It still is a trademark in some countries but not the US
The only “Big Game” is UC-Berkeley vs Stanford. The rest are weak imitations.
Actually, that’s not an unwritten rule so much as the fact that, if you make a direct comparative claim for your product versus a specific other product (e.g., “Tide is better than All”), you have to have some very specific (and fairly expensive) market research to support that claim, or it won’t stand up to legal scrutiny.
If Tide, for example, were to start airing “Tide is better than All” ads, the makers of All would file a complaint with the FTC, and the FTC would inform the makers of Tide that they would need to either (a) provide the FTC with the documentation of the research that supports that claim, or (b) cease running ads with that claim.
If, on the other hand, you use “Brand X” or “the leading brand” in your ad, you aren’t mentioning All by name, and the makers of All are much less likely to be successful in trying to force you to stop the ads (since you’re not referring to their brand).
I’ve spent my career working in market research and advertising, and I have seen at least a half-dozen situations in which a marketer was interested in making a direct comparative claim like this in advertising. There’s no specific rule from the FTC that says “you need this specific piece of research to support such a claim,” so much as a history of cases in which claims have been upheld, and the specifics of what sort of research was considered by the FTC to be sufficient.
Anyway, in every single one of these situations I’ve been involved in, when the marketers were shown, “OK, here’s what you’re likely going to need to do as far as research goes, this is roughly how much it’s going to cost, and this is how big the difference in performance between your brand and the other brand is going to need to be to support such a claim,” their interest has quickly died away. In my 30-year career, I’ve never actually seen this sort of research conducted.
Yeah, but it just sounds so old-fashioned and juvenile, a term that’s an escapee from post-WWII kid/YA fiction. Like Ned Nickerson QBing in the Big Game in a Nancy Drew book. (I don’t know if there was or wasn’t a specific use like that in a Nancy Drew book since I haven’t opened one in over 50 years, but I associate the term with that sort of genre of fiction.)
There needs to be a better free-use synonym for the Super Bowl. I’ve often suggested an alternative: it would be pronounced “Hyperbowl” but would be spelled “Hyperbole” because Lord knows there’s enough hyperbole around the Super Bowl.
^ But then you’d have to pay Michael Palin (or possibly the Piranhas) for using “Hyperbowl.”
Can a business argue that they are a retail partner of a Super Bowl advertiser? The NFL is more than happy to take big money from, say, Bud Light. But Bud Light isn’t doing this out of the goodness of their heart, they expect it to increase sales of their product, and bars, restaurants, liquor stores, etc. are the primary point of retail sales for Bud Light. Sure, Bud Light doesn’t sell directly to retail outlets, they sell to distributors, but distributors are not the target of the advertising, the retail customer is. Could a bar display a poster that said “watch the super bowl here” if the poster was printed and provided by Bud Light?
That depends on the licensing contract between the N.F.L. and AB InBev (the owner of Budweiser).
Taking this quip seriously for the purpose of clarification, on what basis could Palin or the Piranha Brothers claim royalties?
Just got a spam email from Pizza Hut “for your Super Bowl Spread.” Thought of this thread and wondered, “Are they allowed to say that?” Then saw that they are “Official Pizza Sponsor of the NFL.” So I guess they are.
Biggest game I know of is called “Risk.”
Although Risk being played by blue whales and elephants (in the shade of a redwood tree) would also be pretty big.
I heard it was UCLA-USC. Or maybe it was USC-Notre Dame (man those Trojans can’t get along with ANYBODY, can they?).
On the other hand, The Game is the one between Harvard and Yale.
So how is that different than my bar advertising using “Bud Light”? Is it just that AB doesn’t care that I use their trademark and in fact are happy that I am advertising for them?
I have no reason to doubt you because I know very little about trademark, but this seems to fall into “the law is an ass” category. The NFL broadcasts the Super Bowl over the air. I have presumably paid a public performance fee to show it in my bar. Nobody would confuse my bar with the NFL or with the goodwill that it has achieved. All I am doing is tell potential customers a true fact that they can watch the Super Bowl at my bar.
If I use all of the euphemisms and say that they can watch “The Big Game” or say some other such thing, everyone knows what I am talking about and I am using the NFL’s goodwill in exactly the same way. It’s just that we now have a stupid law that suppresses speech as everyone else in the country is calling it the Super Bowl and presumably the bartender can say “Super Bowl” once the customers are in.
I’m all for protecting intellectual property, but this seems to have no purpose other than to enrich the NFL solely by allowing their suppression of speech.
Cal-Stanford is referred to as “The Big Game,” the way Auburn-Alabama is called “The Iron Bowl.”
In fact, I have heard that the NFL also tried to trademark “The Big Game” to prevent companies from using it as a synonym for the Super Bowl, only to discover that one or both of Stanford University and the Regents of the University of California already own the rights to the name for football purposes.
Besides, that wouldn’t stop companies from saying things like “the Pro Football Championship,” which the NFL probably couldn’t trademark as, for example, the XFL championship is also a “pro football championship.”