Davis Dwight & Tremaine LLP
Oregon business law firm
With the league championship match-ups set, and the Super Bowl only 3 weeks away, broadcasters are once again getting ready for the onslaught of advertising opportunities that come with the big game. But, as we write every year at this time, broadcasters need to be extremely careful in using the term “Super Bowl” in any advertising by a sponsor who has not been authorized to use that term. Super Bowl is a trademarked term, meaning that its use, particularly for commercial purposes, is limited. Trademarked terms should not be used in commercial messages except by authorized advertisers. These advertisers have paid big bucks to be able to say that they are a Super Bowl sponsor. See this article from the New York Times about the pricing of Super Bowl advertising. As the NFL enforces its trademarks rigorously (so that they can get the big bucks from the official advertisers), don’t risk their use without official permission.
This does not prevent all discussions of the Super Bowl on the air. News reports about the game can still air, using the name of the game. DJs can still chat about who is going to win the Super Bowl. But don’t try to commercially exploit these terms (e.g. saying that you are “Springfield’s Super Bowl station”) unless you really have really the rights to use the trademarked term. Be careful, as a cute promotional idea can end up costing your station far more than you intended.
We’ve issued these warnings not just about the Super Bowl, but about other big events too. The Olympics, March Madness and many other big events have trademarks or service marks on their names, restricting others from commercially exploiting the terms. That’s why so many ads around these events talk about preparing for the “big game” or use some similar generic term, rather than tying a commercial pitch to the protected name.
We always have many questions around these events, including the question as to whether the words “Super Bowl”, “Olympics” and March Madness” are really “copyrighted” so they can’t be used in local commercials. The issue discussed above really is one of trademark, not copyright law. Copyright covers creative works – movies, books, songs, etc. – while trademark covers the commercial use of words or symbols to represent a product or service, which is what the use of these words are – the identification of the particular events. Copyright, by contrast, would apply to the actual broadcast of the big game – which you also can’t use in a commercial setting without permission. That’s why you’ll hear during the broadcast of the game that familiar phrase warning you that the telecast of the game is the property of the NFL, and that you can’t exploit it without the express permission of the NFL and the network carrying the game. Trying to set up Super Bowl viewing parties in a commercial context may raise questions both under trademark and copyright laws.
So – be warned, use of the protected words, without permission, can be costly.