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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.

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As we have advised before in both 2009 and 2010, "Super Bowl" is a registered trademark belonging to the NFL, and they will aggressively enforce their trademark rights against any station that attempts to use this term in connection with advertising or promotional matter of any kind, including ticket giveaways, if not specifically authorized by the NFL. You are free to use trademark protected terms like "Super Bowl" in news stories or noncommercial discussions about the event under a concept known as "nominative fair use," but use of trademarked terms in a commercial context crosses the line from acceptable to unacceptable use.

Although the NFL is more aggressive than many other trademark owners in enforcing its rights, these same principles apply to other registered trademarks, including "March Madness," "NASCAR" and even TV shows such as "American Idol."  Discussions among DJs or with listeners and viewers are fine, but you cannot use these terms to sell products or do station promotions without authorization from the trademark owners.

Refer to our previous posts linked to above for more guidelines on what stations can and cannot do with regard to the Super Bowl and other registered marks.

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With the Super Bowl and the Winter Olympics less than 2 weeks away, and March Madness not far behind, we once again need to remind our readers that all three are trademarked terms, meaning that their use, particularly for commercial purposes, is limited.  We've wrote here last year about the use of the term "Super Bowl" in commercials, and about the use of "Olympics" two years ago (here).  Our warning then bears repeating now - the 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 an Olympic sponsor, or that they are having a Super Bowl sale.  The holders of these trademarks enforce them rigorously (so that they can get the big bucks from the official advertisers), so don't risk their use without official permission.  See our Super Bowl post from last year for details on how to refer to these events without running afoul of trademark limitations.

As we wrote last year, this does not prevent all use of these terms.  News reports about the events can still be given.  DJs can still chat about who is going to win the Super Bowl, or about the latest judging controversy in Ice Dancing at the Winter Olympics.  But don't try to commercially exploit these terms (e.g. saying that you are "Springfield's March Madness station") unless you have really paid for 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. 

Note - 1/29/10 - We have had many questions since we first posted this entry, 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.  While we hate to be too legal about it, but the issue discussed above 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. 

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The term "Super Bowl" is a trademark owned by the National Football League, and it is protected very aggressively. What does that mean?  The biggest no-no of all is to use the term "Super Bowl" in any advertising or promotional announcements that are not sanctioned by the NFL.  This prohibition includes sweepstakes and contests as well.  Advertisers pay high licensing fees to the NFL for the right to use the term "Super Bowl" in their advertising.  You will almost certainly hear from the NFL's attorneys if you use the term in advertising without explicit authorization from the NFL.  So no "Super Bowl sales" in your ads - and don't refer to your station as the "Super Bowl Authority" in your promotional statements.  These restrictions explain why you often hear it referred to as "The Big Game."  But this restriction does not mean you cannot utter the words on air under any circumstances. 

There is a court-created trademark concept known as "nominative fair use."  Under this concept, trademarks can be used when necessary under certain conditions.  First, the mark must not be readily identifiable in any other way.  For example, you do not have to refer to the Pittsburgh Steelers as "the professional football team from Pittsburgh."  Secondly, you can only use the mark to the extent necessary to identify it.  Repeated gratuitous use would cross the line - for instance if you repeatedly state that your station is "the place to hear everything about the Super Bowl."  And third, you cannot do anything to suggest a false connection or sponsorship arrangement.   What does this really mean?  It means that DJs can use the term "Super Bowl" editorially in discussing the game on air (but not in a way to imply that the station has a connection to the game, or not in a repeated way analogous to a station slogan or positioning statement).  It means that news stories about the game can refer to the "Super Bowl."  The NFL will not consider such uses to be trademark infringement so long as the use is reasonable.  In fact, from an editorial perspective, the NFL appreciates some hype about the game to attract viewers and general consumer interest in the game.

Another dangerous activity is sponsoring a large screen viewing of the Super Bowl.  Even if you refer to it as the "Big Game" to avoid trademark issues, a public large screen display of the game violates the NFL's copyright in the telecast of the game.  You specifically want to avoid showing the game to an audience on a screen larger than 55 inches diagonally, or on any screen if viewers have to pay to watch the game. 

If you follow these guidelines, you should not have any legal problems relating to the NFL's ownership of both trademark and copyright rights in the Super Bowl.  Enjoy the Big Game!

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