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Using ‘Super Bowl’ Might Not Be an Infringement, But Will Be a Fight

It is not necessarily trademark infringement to use the term “Super Bowl” in your advertising, even if you are not an official sponsor of the NFL. It is, however, a significant risk. Using another’s trademark is allowed if you cannot otherwise readily identify the other’s product without using its brand name, you use only as much of its brand name needed to identify the product, and you do not suggest sponsorship or endorsement of the owner. Cases apply this principle of “nominative fair use” to allow innocuous references to another’s trademark. The risk in using “Super Bowl” is that the NFL is very aggressive in blocking all uses of its coveted brand, and no one has determined that it is worthwhile to challenge that position. If a use might, in some way, lead consumers to believe that an event is connected to the NFL’s championship game, then it is legally appropriate to refer to the game as “The Big Game” or as a parody, such as “Tom Brady’s Annual Time-Share.” If the reference merely names the game without implying any connection, then using “Super Bowl” could be legally defensible, albeit not fiscally prudent, due to the NFL’s tactics. But when the stakes are lower, using another’s name is defensible. At some point, someone may challenge the NFL’s position because on any given Sunday, and with a big bankroll, someone could beat the NFL in this contest.

 

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com