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One of the questions we commonly get from broadcasters and others around this time of year is whether and/or how they can use the term SUPER BOWL.  Some refer to it as a trademark while others call it a copyright.  Who is right...and how can it be used?  The term SUPER BOWL is a registered trademark owned by the National Football League. We previously discussed this issue in 2009, 2010 and 2011. 

Actually, the NFL owns at least eight trademark registrations containing the words SUPER BOWL, as well trademark registrations for the terms PRO BOWL and even SUPER SUNDAY.  Aside from these trademark registrations, the NFL also owns the copyright to the telecast of the game itself.  You may have heard that in past years, the NFL tried to stop Super Bowl parties shown on large TV screens.  This was an enforcement of the NFL's copyright in the game.  Now, the NFL apparently no longer tries to stop Super Bowl parties unless the proprietor charges admission to see the game.  Again, this is a copyright issue.  But what do these rights mean for a broadcaster who wants to run a Super Bowl promotion or an advertiser who wants to run a campaign involving the Big Game?

 

When it comes to use of the trademarked term SUPER BOWL, the NFL will take action against third party attempts to use that term in a commercial sense, in other words, to sell goods and services using the term SUPER BOWL in advertising.  This is because commercial sponsors pay the NFL to be the official car or soft drink or whatever of the SUPER BOWL.  Any unauthorized use of that term in advertising could imply a false sponsorship or affiliation with the NFL.

So, what is permitted?  It is fine to use the term SUPER BOWL in news stories about the game and in conversations about the game.  There is a trademark concept called "nominative fair use" that allows others to use a trademarked term when there is simply no better way to refer to it.  But that concept does not extend to commercial use of the term. 

In summary, you can discuss the Super Bowl and do news stories about the Super Bowl, all while referring to it as the Super Bowl.  But any commercials or promotional announcements should avoid use of that trademarked term.  It is OK for commercials to refer to it as the "Big Game" or any other term that does not include the words "Super Bowl" or "Super Sunday."

And go ahead and have that TV Super Bowl party you were planning.  You will not be violating any copyright enforced by the NFL so long as you do not charge admission to see the game.  By contrast, selling food and drink at the venue is permitted.  In fact, that is pretty much what every bar in the US will be doing on Super Sunday.

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Many broadcasters have had the conception that there are FCC rules against liquor advertising,  As we wrote in 2007, the FCC has never directly regulated liquor ads.  Many years ago, the FCC did ask broadcasters seeking a license if they would rely on the NAB Code of voluntary conduct, which set out limits on broadcaster advertising for alcoholic beverages (essentially forbidding hard liquor ads).  When the Code was declared unconstitutional in the 1980s, there was no longer any FCC review, direct or indirect, of any alcoholic beverage advertising.  But that is not to say that there were no restrictions, as many programming providers and rights holders themselves limited the kinds of ads that could accompany their programs and, as we wrote in our previous post, the alcoholic beverage trade associations had voluntary codes of conduct, which the FTC looks to in determining whether advertising is an unfair trade practice.  The rightsholder restrictions were demonstrated this past week, when the University of Wisconsin reportedly banned beer advertising on broadcast coverage of its school's football games.  Private contracts from program suppliers and rights holders, including sports programming from schools and colleges, often include restrictions against certain types of advertising which, if breached, can carry contractual penalties including the potential for the cancellation of a station's authority to continue to carry the programming.  Especially where such rights were the subject of competitive bargaining, broadcasters want to insure that they do not violate these restrictions and put their valuable programming rights at risk.

Some of the broadest restrictions on advertising accompany sports programs.  On Friday, there was a story in Inside Radio (subscription required) about the NCAA's requirements for broadcast advertising.  With college football season up us, we thought that we'd look at some of those advertising restrictions.  Those restrictions can be found on the NCAA website, here.  The NCAA has a list of specific products that are permitted to be advertised, with guidelines on how those presentations should be made when the product is pitched.  In addition, the list includes certain products that should not be advertised on NCAA games.  For instance, while beer advertising is permitted, the NCAA says that such ads should not take up more than 60 seconds of commercial time per hour (one 60 second ad or two 30 second ads).  The ads should feature no "gratuitous and overly suggestive sexual innuendo, no displays of disorderly, reckless or destructive behavior."  The ads also should include a "drink responsibly" message.  Hard liquor, on the other hand, cannot be advertised in NCAA programs.  Similarly, there are prohibitions on gambling ads of any kind (including ads for casinos or race tracks); firearms; adult entertainment locations including pool halls; adult movies and video games (with NC-17 ratings); ads promoting any products containing NCAA banned substances (including ginseng); and ads for controversial and political issues.  

The guidelines for the NCAA, and those for other organizations, are meant to preserve a certain image of the organization.  Even professional sports leagues look at their image in deciding what advertisers to permit to accept their brands (see the NFL standards, here), and which are carried over into advertising restrictions within broadcasts of games (see example, here).  Thus, to avoid inadvertently violating any contract provisions, stations need to use care in reviewing their contractual advertising restrictions on all programming that they broadcast to insure that they act accordingly when choosing the spots to run in such programming. 

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