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.


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Last week, the FCC commenced its long anticipated proceeding to reexamine its sponsorship identification rules. This proceeding has been rumored for over six months, having appeared on an agenda for a Commission open meeting in December, only to be pulled from the agenda days before it was to have been voted on. The Commission has initiated this proceeding, to a great degree, at the urging of Commissioner Adelstein who has been vocal in his concerns that the broadcast and advertising industries, in adopting advertising techniques to respond to technological and marketplace changes, has been exposing the public to commercial messages without their knowledge.  One of the principal practices of concern to the Commission, though not the only one, is embedded advertising (as the Commission refers to product placement and product integration into the dialog and/or plot of a program). While many of the trade press reports have focused on embedded advertising, this proceeding is wide-ranging and important to the broadcast, cable and advertising industries. Comments on the proceeding will be due 60 days after its publication in the Federal Register, with replies 30 days later.   We have prepared an Advisory, summarizing the issues raised by the Commission in this proceeding, which can be found here.

According to trade press reports, this proceeding was initially planned as a Notice of Proposed Rulemaking (NPRM), which would have proposed rules which, after public comment, could have been immediately adopted. After significant lobbying from the advertising community, the Notice was released in two parts. First, there is a Notice of Inquiry (NOI), asking a series of questions about the current state of advertising on broadcast and cable outlets, and asking how the Commission should amend its rules to deal with new advertising techniques. Second, the Commission’s announcement contains an NPRM with respect to certain specific items, including proposing to clarify the type of sponsorship identification necessary in television advertising, the extension of the sponsorship identification rules beyond local origination cablecasting to cable network programming, and clarification of the rules with respect to live-read radio commercials. The specifics of the NOI and the NPRM are set forth in our Advisory


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