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We've written many times before about those big name events, like March Madness, the Olympics and the Super Bowl. Events that you and your advertisers are just dying to tie into your own local event – a sale, a party or maybe the introduction of some special new product or service. Well, like the Super Bowl, March Madness is a trademarked term, and you need to exercise care in its use. While the company that owns the trademark (a company partially owned by the NCAA) may not be as aggressive as the NFL or the Olympic Committees in protecting its rights, it can still be an issue should you start promoting your March Madness sale without permission and get caught.

When we wrote our usual warning about the use of the term "Super Bowl" in advertising earlier this year, I received one message asking if I worked for the NFL. A reader who obviously had trademark law experience complained that I was too cautious in urging broadcasters to avoid the use of the term Super Bowl in a commercial. The argument from the reader was that, if used in the right way, not to name an event but just to say something like – "buy a big screen TV so that can watch the Super Bowl, the Academy Awards and all the best television that is coming your way this year," your use of the term in a commercial could probably be justified should it be challenged. While that may be the case, making the distinction between this arguably permissible kind of use, and a more problematic use (like "come on down to Joe's electronics for our Super Bowl Sale on big screen TVs") is a nuanced issue. By avoiding the trademarked term in advertising, and instead sticking with something more generic – like "it is tournament time again, and you can watch all the action with a new big screen TV from Joe's Electronics" - avoids any of the issues that might arise if you use the trademarked term in your commercial.

Obviously using "March Madness" in passing in your news, talk or entertainment programming is not going to get you into trouble. But using it as a branding term – trying to pass your station off as your "official March Madness station" or an advertiser suggesting that they were "the March Madness restaurant" are much more likely to cause harm by trying to suggest an official connection between the product or service being sold and the trademarked term.

And, as we write each time that we do one of these articles, the issue is one of trademarks or service marks, not copyright. There is a copyright in the telecast itself, but the limitations on the right to use the name comes from trademark law.

Best of luck with your brackets, and with staying out of trouble on your basketball-themed commercials in the coming weeks.

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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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