With big brands cramping their style by paying millions for a morsel of that sweet, sweet commercial time in between plays at the Super Bowl, small businesses and mid-market brands are left to fend for themselves and find other means for live and timely self-promotion.
What’s a brand to do?
Naturally, companies with modest marketing budgets look to social media to get the word out while their audiences read and write posts responding to the game. However, before you think about posting for your brand, you may wonder if you can or cannot use the words “Super Bowl” in your post.
The quick answer: unless you have a big legal budget, just say “no”. But if you want Trademark Law 101 quick-and-dirty, here it is:
Hell hath no fury like the NFL legal team’s scorn.
The NFL doesn’t care if you’re a dive bar on Main St. in Smalltown, Wherever. Having a “Super Bowl Extravaganza” while promoting and charging admission for it will guarantee a cease and desist notice. That’s because you’re making profit off an NFL trademark, so using “Super Bowl”, “Super Sunday” or any team names is illegal (just look at the tiny print at the bottom of the NFL’s website).
Save yourself the money, time and legal trouble. Use “Big Game” and the city/region of the teams instead.
“But you guys used Super Bowl in the this article…”
Thanks to the first amendment, since this is a journalistic piece we can use the term as much as we want to.
“…So why can’t my brand?”
In an article from PR Daily, author David Allen clarifies that in any “commercial message” (that means using your brand’s social media accounts) that contains the term “Super Bowl” in it can and likely will be scrutinized by the NFL’s legal vice. Unless you want to play with fire…
What we mean by “fire”: nominative fair use
Nominative Fair Use basically means you’re not infringing on the trademark owner’s (in this case, the NFL’s) rights. According to the International Trademark Association and a 1992 court case, nominative fair use is defined by these three parameters:
- The product or service in question is not readily identifiable without use of the trademark,
- Only so much of the mark is used as is reasonably necessary to identify the product or service and
- Use of the mark does not suggest sponsorship or endorsement by the trademark owner.
(source: http://www.inta.org/ )
Fun fact: that court case was New Kids on the Block v. News America Publishing, Inc. Who knew boy bands had the right stuff to get so aggressive?
You’re not the official beer of the Super Bowl unless you’re Budweiser.
In a classic case of “if you scratch my back, I’ll scratch yours,” brands like Anheuser-Busch/InBev and Papa Johns pay to be the “official sponsor” of the Super Bowl after brokering a deal with the NFL for a pretty penny. In return, they get the protection as official sponsors from the NFL’s legal team. So since you’re probably not an official sponsor of the Super Bowl, don’t call yourself such.
Have a headache? So do we. If you’re longing for more trademark legalese surrounding the Super Bowl here are some other resources:
On Super Bowl Sunday, Social Media Trademark Risks Abound
Why can’t you call it the Super Bowl?
How To Ride The Super Bowl’s Coattails, Without Getting Sued By The NFL
