Broadcast Law Blog : Broadcast Lawyer & Attorney : Davis Wright Tremaine Law Firm : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

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.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Last week, an article in the Wall Street Journal focused on the enforcement of the trademark that the United States Olympic Committee has in the word "Olympics."  Thus, anyone who wants to call some sort of competition an "Olympic" contest, or anyone who uses any derivation of that word, is asking for potential issues should the USOC get word of that use.  What the article did not address was the issue that this raises for broadcasters and advertisers.  Just as the trademarked term "Super Bowl" can cause problems for companies that use it in advertisements without permission of the NFL, advertisers should refrain from the use of the term Olympics in connection with promoting their products.   Companies have paid huge rights fees to get the exclusive rights to use the Olympics in their advertising campaigns, usually getting exclusive rights in a particular product category.  These companies and the Olympic committee do not like to see local advertisers appropriating the use of the Olympics name (or the interlocking circles that comprise their symbol) in someone else's ad.  So, just as electronic stores promote the sale of their big screen TVs before the Super Bowl by talking about the "Big Game" rather than using the trademarked phrase, advertisers must use care and avoid any trademark infringement by trying to tie their products to the Olympics during this upcoming event. 

• Email This
• Print
• Comments
• Share Link

The Third Circuit Court of Appeals today released a decision overturning the FCC's fine of CBS Television for its Super Bowl broadcast of the notorious Janet Jackson halftime show and her "clothing malfunction."  The decision is available here.  Our partner Bob Corn-Revere argued the case.  Full details on the decision are contained in our firm's Advisory Bulletin which was just issued.  But essentially, the court found that the FCC had not sufficiently justified its departure from prior precedent that any "fleeting" content would not result in a fine by the FCC, nor had the FCC justified its decision finding that the conduct of CBS was "willful," as the Court questioned whether the independent actions of Janet Jackson and Justin TImberlake could be attributed to CBS.  The decision was remanded to the FCC with the instruction that it could not fine CBS but that any further decision could be only declaratory in nature - setting policy for the future. 

If the FCC decides to wade back into the indecency area, it will have to deal with two decisions finding its rulings arbitrary and capricious.  We wrote about the Second Circuit decision throwing out the "fleeting expletive" fines arsing from slips of the tongue during the Golden Globes, the Billboard Music Awards and other programs (see our last post on that case here).  Of course, the FCC has asked the Supreme Court for review of the Golden Globes case, so we'll all have to stay tuned for more information about what action that Court will take, and what the FCC will do with respect to these decisions. 

• Email This
• Print
• Comments
• Share Link