To clarify: I just meant “hey that was funny; well-put old chap!” I didn’t think it was going to fix the NFL’s little red wagon once and for all.
Of all the posts I’ve ever posted, I thought for sure that was the one least likely to get commented upon… quite a board, this! 
In a slight hijack, I was recently talking to the owner of a local pub. He said that in order to play NFL games publically on a screen of more than some amount of inches, you have to pay a fee to the NFL. I don’t understand the legal grounds for charging someone to display something that you make available for free to everyone, and I feel like the restriction on screen size is sort of arbitrary. Anyone know anything about this?
IANAL and I don’t know anything about trademark law, but it seems to me that the NFL has a pretty good prima facia case. The ad didn’t just refer to the Super Bowl, they used part of the trademark and implied the rest. You obviously couldn’t get away with using the Coca-Cola trademark in (unrelated) advertising simply by covering up part a C (nor even by obscuring the word Cola). Nor could you make Mickey Mouse your corporate mascot if you cover one ear with a beret. “Super” in that ad was not functioning as a normal adjective, but was clearly intended to be understood as a portion of the name, which is trademarked in its entirety.
Note also that trademarks, unlike patents and copyrights, must be defended vigorously to be maintained. The next case might be a print ad reading “This product is SUPER” with SUPER appearing in the font used in the Super Bowl logo. The NFL certainly wouldn’t want the courts to rule that they had already abandoned the use of that portion of the name by itself as a trademark.
Maybe not in unrelated advertising, but you can refer to competing products in an ad. The advertising in the OP wasn’t unrelated either… the term “Super Bowl” was invoked only to describe the prize that the advertiser was offering.
This is actually a copyright matter, not a trademark matter.
It’s the same restriction you get when you buy a DVD. It’s for personal, home use only. You’re not allowed to display it in public, especially in a commercial establishment where you expect to make money off the viewers. It’s perfectly legal.
It’s not “free for everyone.” It’s free for people watching it for their personal entertainment. If you’re making money off of it, then you have to get a license.
The screen size issue is rather arbitrary, but it comes from a practical perspective. There was a case regarding a small restaurant owner who was playing a stereo in the restaurant. ASCAP wanted royalties because he was publicly performing copyrighted works. The court decided that no royalties are necessary if it really is a very small deal – if it’s the type of ordinary equipment that you might see in someone’s home.
So, if a bar’s got a tiny little TV that the bartender and a two or three customers sitting at the bar can see, that really is too minor to bother about, but if you’re talking about a sports bar where people gather in order to watch games and you’ve got a nice audio and video setup, then you’ve got to pay, because you are essentially encroaching on the N.F.L.'s business, which is charging people to watch games.
Which may, through the use of the trademark (and I take it as given here that the use of part of a trademark is equivalent to the use of the whole), imply the sponsorship of the trademark owner. Many contest prizes are provided by companies that sponsor the contest and want trhe increased publicity the contest affords. As I understand it, one (perhaps THE) purpose of trademarks is to distinguish those products, services, etc. produced or sponsored by the trademark owner from those that are not. In the case of an ad for a competing product, such confusion unlikely. In this case–well, I admit that confusion is still unlikely, but it’s at least a plausible outcome, especially when the NFL has worked so hard to make sure no one else has gotten away with using it. I don’t think they have a slam-dunk case, but it’s a close enough issue that they probably feel they have to defend it or possibly give up some future claims.
Last year, several bars advertised Superb Owl parties.
Perhaps, but it’s still perfectly legal to give away prizes without being sponsored by the company that made the prize. It can’t be that hard to put a disclaimer in the ad saying the contest isn’t affiliated with the NFL.
I don’t think it’s so clear. There’s a pretty good argument that a trademark owner can prohibit you from using his or her branded product as a prize in a contest that the trademark owner isn’t associated with. I haven’t seen enough on this to be sure one way or the other.
Under the first sale doctrine, the prize manufacturer can’t prevent you from giving away–or even reselling–one of their products that you bought, right? (That wouldn’t apply to prizes like tickets that have to be bought by the person who’s going to use them, though.)
Selling or giving away is one thing. Using the name in a promotional program like a prize drawing or something like that is very different and might be seen very differently from the point of view of trademark law.
“Call now and make me an offer for these Super Bowl tickets!” – definitely covered by the first sale doctrine.
“Buy my product and get a chance to win Super Bowl tickets!”-- not exactly the same situation, is it?
Mm, I’d say it is the same situation. You’re offering a product in both cases, using the Super Bowl trademark to attract customers by letting them know exactly what they will (or might) get.
No, in the first case you’re actually reselling the trademark owner’s genuine goods. That’s the first-sale doctrine.
In the second case, you’re using the trademark owner’s goods to attract customers to buy something else. That’s free-riding. And it might be trademark infringement or dilution.
But you are giving away the trademark owner’s goods - that’s protected by the first sale doctrine. Once that’s established, you’re simply describing the product you’re giving away in the most obvious, accurate way possible.
No, you are also connecting that give away with promotion of your own goods. That’s not protected by the first sale doctrine.
Actually, now that I think about it, it’s possible that the N.F.L. might consider tickets to be licenses rather than sales. If you look on the back of the ticket, there might be all kinds of limitations regarding what you can do with it. But that’s a different point.
So you can purchase goods from someone else and give them away to a stranger, as a private citizen, but you can’t give them away to a customer of your business? Or you can, but you can’t talk about it beforehand?
To the extent that what you are describing is promotion of your own goods, yes. You can give something away or sell it, but you must be selling it. If you’re just using that sale to promote some other product, then you could be running into trademark problems.
It might be relevant, though, and I was thinking the same thing… Does anyone have a (hopefully recent) Super Bowl ticket on which the legalese on the back is still readable? Would this shed any light on the rights of a lottery organization to give away tickets it bought?