The Illinois Lottery has ended a promotion early under pressure from the NFL.
One of the prizes was a set of Super Bowl tickets. They never say “Super Bowl” in the radio ads…they play it coy by saying “Super…” and crowd noises overshadows anything else.
The lawyer for the NFL says “If you are describing what everybody perceives as the Super Bowl … that is a trademark infringement,” he said."
Is that really true? If I refer to “the big January game in Detroit” as part of an ad, is that trademark infringment? I recall similar ads using phrases like “the big game”.
Yeah, the NFL gets terribly uppity about the name of that particular game, and how it’s referred to. They get really testy if you attempt to link their game to any sort of contest, raffle or drawing, as well.
Well, that’s not entirely true. Every year, various ads have tie-ins to “The Big Game,” as it’s called in ad-speak. I’ve never heard of any complaints against advertisers using “The Big Game.” In fact, one chili brand advertised that theirs was "Super, like a bowl of [whatever brand] chili. They probably pulled this one just because that was a cheaper option than going to court, even if they won.
The NFL has a trademark on the words “Super Bowl” in relation to its championship game. There are various marks and they cover a wide variety of goods and services. Some companies get a license to use the words “Super Bowl”. It’s likely not cheap.
I had a nice post set out, but the hamsters ate it, and I don’t have time to re-write everything, so I’ll just give my quick and dirty opinion:
From the link, Brian McCarthy is full of crap (which I say with all due professional respect). He may be taken out of context, but I understood his issue to be with the ad stating that “…Super [crowd noise obscures the rest]…” This is tantamount to having TM protection over the word Super, which the NFL clearly does not have. Although they do have rights to “Super Bowl” and, I think, “Super Sunday.”
McCarthy and the NFL have huge issues with any type of business essentially getting free advertising from the NFL’s efforts to promote the big game. IMO, there is no easy way to prevent this without making the problem worse. So, the best thing they can do is prevent any type of association of any business with the NFL that the NFL doesn’t want. IMHO, they would lose if the Illinois Lottery didn’t lay down. However, a prolonged legal battle with the NFL would be very costly and just isn’t worth the hassle (it could be, if it results in a lot of free advertising). IMO, I would fight it.
So, no, any reference to the Super Bowl is not infringement. What is infringing is anything that actually uses the or dilutes the actual trademarked name. Most people don’t fight it, because it’s not worth the $/hassle.
I know a bit about trademark law, but I don’t have a lot of time right now to look at this question in detail. All I will say at this point is that it’s complicated.
Your protectiable trademark is only the word or design that you use to identify the origin of goods or services.
You can’t stop other people from referring to your product. You can only stop them from using your mark on their goods and services.
However, you can’t use their trademark to imply some kind of connection between your goods and theirs, sort of using their reputation to give yourself a boost.
In the end, I suspect that the N.F.L. doesn’t have much of a legal case, but has the clout to get its way.
Basically, the argument that the N.F.L. is going to make is that by mentioning the Super Bowl explicitly or implicitly, you are suggesting some kind of sponsorship or other relationship with the Super Bowl.
“Our main source of income vis-a-vis the Super Bowl is charging people for sponsorship or for letting them use our name in their commercials,” they’ll say. “By mentioning the Super Bowl in your ad for big-screen televisions or party snacks or pickup trucks or whatever, you are interfering with our ability to charge top-dollar to official sponsors.”
That’s their trademark argument in a nutshell. It’s not the strongest possible, but it is there. And it might hold up, because, hey, we’re talking about advertising here. It’s not like they are stopping a news outlet from talking about the Super Bowl. They’re just stopping people from selling their own products using a piggy-back technique on the mark that they’ve spent so much time and money making valuable.
Note, while there might be some major problems with what they are doing here, it is in no way like Sesame Street claiming ownership of letters.
You’re right. I was getting ahead of myself, and simplifying things too much. I saw it after I posted it, and I figured someone would be around to correct me. Anyway, I was still upset after the hamster devouring and that the NFL would be so brash.
BTW, I saw a commercial today with similar vague wording: I can’t remember the details, but it was for a promotion where you can win a Land Rover and tickets to the college BCS championship game – the Rose Bowl, this year. Except the words “BCS”, “Rose Bowl”; even “Pasadena” were never mentioned - they just said “hey, win tickets to the college football championship in LA and go there in your new Land Rover”.
Couldn’t the car company theoretically keep them from using the name of the car? You know… “Enter this contest for a chance to win a really big SUV that’ll let you rove right over any kind of land!”
Every time this comes up, I’m amazed that trademark law prevents contest administrators from simply describing the prize they’re giving away. “Win Super Bowl tickets” doesn’t suggest NFL sponsorship any more than “win tickets to Charlie and the Chocolate Factory”, or “win a Land Rover”, or “win a gift certificate to Foot Locker”.
If you can’t say the brand name, how are you supposed to accurately describe the prize? Even insinuations like “the big football game in January” don’t really work: “big” is a matter of opinion. I could put on my own football game, then give away tickets to it in a contest. Would anyone have any recourse if I gave them tickets to Mr2001’s First Annual Backyard Gridiron Championship instead of the Super Bowl tickets they were expecting?
There is another important trademark law concept here called “nominative fair use,” and it significantly complicates the issue. Under nominative fair use you are allowed to use another person’s trademark to identify their genuine product – just the scenario you describe. Furthermore, nominative fair use is based not just in trademark law, but is derived from First Amendment free speech rights.
I haven’t figured out yet how nominative fair use interacts with the N.F.L.'s argument here.
The Olympics, I believe have a special exemption in the U.S. Code that gives the I.O.C. and the U.S.O.C. the absolute right to control the use of “Olympics” and related marks in other people’s commercials. But this degree of control is pretty unusual.
Except that Land Rover was paying for the ad, so their name was featured prominently. But since they hadn’t paid the BCS for rights & privileges, they couldn’t use any of their licensed terminology to describe that part of the prize.
Interesting. This page has some information about nominative fair use. (Unfortunately, it also refers to the New Kids on the Block as a “rock group”. ;))
No, when you take a good look at trademark law, it’s pretty irrelevant. Yes, I find a lot of things that some trademark holders do pretty over the top, but this particular Super Bowl thing is a close issue, one I haven’t figured out for myself.
Note, even if the Children’s Television Workshop could and did trademark the letters N, F, and L (which they couldn’t and wouldn’t), it wouldn’t affect the National Football League’s rights in the name “N.F.L.” one iota.
Nice.