By: Editorial Staff, Date: February 8th, 2021
Did you watch The Big Game on Sunday, February 7? If you’re a fan, you probably know why most advertisers don’t simply call it The Super Bowl. As Colbert famously pointed out with the “Superb Owl” routine, Super Bowl is a trademark, registered by the NFL.
The NFL is known to sue over “counterfeit” shirts copying NFL team names or proprietary gear designs. It has sued churches over Super Bowl parties.
Other registered trademarks include Pro Bowl, the NFL shield logo, and images of the Vince Lombardi Trophy.
IP Theft, or Nominative Fair Use?
The National Football League guards the brand because its business model involves selling sponsors the right to use its own brand in their marketing. Anheuser-Busch shells out $250 million a year for exclusive rights. The value would be undermined if the NFL failed to guard its trademarks.
In 2006, the NFL tried to register a trademark for The Big Game. But the nominative fair use concept in U.S. trademark law says The Big Game cannot be restricted—as an accurate and informative description of…the Big Game. The Ninth Circuit Court of Appeals made this legal concept clear in 1992. So, can groups host Super Bowl parties under current IP law? Such cases invariably turn on whether the use somehow implies official sponsorship of the event, or the logos are displayed. The overarching question is whether a group profits off the NFL brand, or accurately describes a trademarked event.
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