Is it legal to use the phrase "Super Bowl" -- an aggressively protected trademark -- in ads for your business? What about using the words "Super Bowl" in your social media status updates?
The Super Bowl is the biggest television blitz of the year and boasts some of the best ads in the biz. This Sunday, as the Seattle Seahawks and Denver Broncos face off in Super Bowl XLVIII, you may be tempted to get in on the intense advertising action.
But will using the phrase "Super Bowl" without permission get you tackled by the NFL's team of lawyers? Here are three situations to consider:
- "Super Bowl"-themed parties. Technically, you're not allowed to use the phrase "Super Bowl" (or even "Superbowl") unless it's an officially sponsored event. But in practice, the NFL apparently no longer tries to stop Super Bowl parties unless you're charging admission to see the game, according to attorney David Silverman of the Broadcast Law Blog. However, you could still get into trouble if your party ad somehow implies "a false sponsorship or affiliation with the NFL."
- TV/print/radio/online advertisements and contests. From the NFL's standpoint, it's a big no-no to use the term "Super Bowl" in any advertising or promotional announcements that aren't sanctioned by the NFL. That goes for sweepstakes and contests, too. Advertisers fork over hefty licensing fees to the NFL to use the phrase, so beware using "Super Bowl" in your ads, promotions, and contests without explicit permission from the league.
- "Super Bowl" in tweets and Facebook updates. If you're just making a zinger or snarky tweet or status update, it should be OK -- the more "newsy" your post is, the more it's OK to use the term. However, like ads and promotions, beware using "Super Bowl" in social media for commercial purposes. Above all, make sure your tweet isn't giving the impression of an NFL endorsement or sponsorship. You may want to throw in a disclaimer for good measure, even though they're not full-proof.
Nominative Fair Use
A growing number of people are claiming that it's possible that using the phrase "Super Bowl" constitutes "nominative fair use."
Nominate fair use is a legal doctrine that allows you to use a trademark when the product (here, the football game) is tough to identify without using the trademark ("Super Bowl"). But even under nominative fair use, you can't use the trademark gratuitously, and you can't suggest a sponsorship or endorsement by the trademark holder (the NFL).
Unfortunately, nominative fair use typically doesn't extend to commercial use, so your advertisements may not be protected.
If you'd rather play it safe, stick to euphemisms like "Big Game," "Super Football," "The Big Bowl Game," and so forth.
Super Bowl Big Game Sunday!
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Editor's Note, February 5, 2016: This post originally suggested that the term "Super Sunday" may be used. However, this term is also protected by the NFL and should not be used.
- How To Ride The Super Bowl's Coattails, Without Getting Sued By The NFL (Business Insider)
- Essential Advertising Rules for Your Businesses (FindLaw)
- How to Get into Trouble for 'Unfair' Advertising (FindLaw's Free Enterprise)
- Stay Legal, Don't Make Ad Fine Print Too Small (FindLaw's Free Enterprise)