super bowl in station promotions

For several years, I have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL (see, e.g. our articles here and here).  It’s that time of year again, so here is an updated version of my prior posts.

The Super Bowl means big bucks.  It is estimated that each of the three television networks that broadcasts the Super Bowl pays the NFL over $1 billion per year for the right to broadcast NFL games through 2022, including the right to broadcast the big game on a rotating basis once every three years.  The investment seems to pay off for the networks.  The Super Bowl broadcast alone generates hundreds of millions of dollars for the networks from advertisers.  In addition to the sums paid to have their commercials aired (reported to be approximately $5.6 million for a 30-second spot), many advertisers spend more than $1 million to produce each ad.  In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.

Given the value of the Super Bowl franchise, it is not surprising that the NFL is extremely aggressive in protecting its golden goose from anything it views as unauthorized efforts to trade off the goodwill associated with the game.  Accordingly, with the coin toss almost upon us, advertisers must take special care before publishing ads or engaging in promotional activities that refer to the Super Bowl.  Broadcasters and news publishers have greater latitude than other businesses, but still need to be wary of engaging in activities that the NFL may view as trademark or copyright infringement.  (These risks also apply to other named sporting events, for example, making use of the terms “Final Four” or “March Madness” in connection with the upcoming NCAA Basketball Tournament – see, for instance, our articles here and here.)
Continue Reading “Come See Us At The Superb Owl” – Don’t Try This At Home!  2020 Update on Super Bowl Advertising and Promotions

For several years, we have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly allude to the Super Bowl without a license from the NFL. It’s that time of year again, so here is an updated version of our prior posts.

The Super Bowl means big bucks. It is estimated that each of the three television networks that broadcasts the Super Bowl pays the NFL over $1 billion per year for the right to broadcast NFL games through 2022, including the right to broadcast the big game on a rotating basis once every three years. The investment seems to pay off for the networks. The Super Bowl broadcast alone generates hundreds of millions of dollars for the networks from advertisers. In addition to the sums paid to have their commercials aired (reported to be approximately $5 million for a 30-second spot), many advertisers spend more than $1 million to produce each ad. In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.

Given the value of the Super Bowl franchise, it is not surprising that the NFL is extremely aggressive in protecting its golden goose from anything it views as unauthorized efforts to trade off the goodwill associated with the game. Accordingly, with the coin toss almost upon us, advertisers must take special care before publishing ads or engaging in promotional activities that refer to the Super Bowl. Broadcasters and news publishers have greater latitude than other businesses, but still need to be wary of engaging in activities that the NFL may view as trademark or copyright infringement. (These risks also apply to other named sporting events, for example, making use of the terms “Final Four” or “March Madness” in connection with the upcoming NCAA Basketball Tournament.)
Continue Reading As Super Bowl Approaches, Advertisers Should Be Aware of The NFL’s Efforts to Protect Its Golden Goose – 2019 Update on Super Bowl Advertising and Promotions

With the Super Bowl fast approaching, broadcasters and other media companies are planning advertising and promotions around the big game.  Here is some advice to broadcasters from Mitchell Stabbe, a lawyer from my firm who has spent over 30 years counseling businesses on trademark issues, about legal cautions to consider in finalizing your plans:

In addition to the monies it receives annually for the right to broadcast the Super Bowl, the NFL receives more than $1 billion in income from licensing the use of the SUPER BOWL trademark and logo.  Not surprisingly, it is extremely aggressive in protecting its golden goose from anything it views as unauthorized efforts to trade off the goodwill associated with the game.  Accordingly, with the coin toss almost upon us, advertisers need to take special care before publishing ads or engaging in promotional activities that refer to the Super Bowl.  Broadcasters and media organizations have slightly greater latitude than other businesses, but still need to wary of engaging in activities that the NFL may view as trademark or copyright infringement.  (These risks also apply to the use of “Final Four” or “March Madness” in connection with the upcoming NCAA Basketball Tournament.)

Simply put, the NFL views any commercial activity that uses or refers to the Super Bowl to draw attention as a violation of its trademark rights.  Many of the activities challenged by the league undoubtedly deserve a yellow flag.  However, the NFL’s rule book defines trademark violations very broadly.  If anyone were willing to throw the red flag to challenge the league’s position, a review from the booth might reverse some of those calls.  But, unless you are ready to take on the NFL in that fight, proceed with caution. 
Continue Reading As The Golden Super Bowl Approaches, Be Aware of The NFL’s Efforts to Protect Its Golden Goose from Unauthorized Ads and Promotions

It’s that time again when broadcasters and advertisers need to watch their commercials and promotions to avoid improper uses of trademarked phrases – with the Super Bowl only weeks away, the Winter Olympics to follow soon thereafter and March Madness to follow closely after that.  Already, Stephen Colbert is making jokes about not using the Olympic rings in promotional announcements (see the first segment of last night’s show), so you know that the issue is arising at media outlets across the country.  As we do every year when the Super Bowl and March Madness roll around (and every other year at Olympics time), we remind broadcasters to scrutinize their advertising and promotions to avoid anything that appears to imply a tie in with any of these events – especially where the protected name of the event is used in the ad or promotion itself. (See past articles here and here). 

The Super Bowl and March Madness are both trademarked terms, and violations of the trademarks have been vigorously prosecuted by the NFL and the NCAA, respectively.  The US Olympic committee has gone one better, getting specific statutory protections in the US for the use of the term the Olympics and the interlocking rings that symbolize the games.  Sponsors of these events pay big bucks for the privilege of being associated with the events, and the organizations putting on the events rely on the money from these sponsors to fund their operations.  So they go out of their way to protect their trademarks.  I wrote the summer before last about my own experiences at the London Summer Olympics, where even the trademarks on the plumbing fixtures at the Olympic sites were obscured where the manufacturers had not obtained Olympics sponsorships.  So there are obviously limits on what can and cannot be said about these marks.  What are those limits?
Continue Reading Super Bowl, the Olympics and March Madness – Watch Your Advertising and Promotions for Unauthorized Uses of Trademarked Phrases

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. 


Continue Reading Remember “Super Bowl”, the “Olympics” and “March Madness” Are Trademarked Terms – Don’t Use Them In Advertising Without Permission

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.


Continue Reading Don’t Use “Super Bowl” in an Ad Without Permission – But How About in Other Programming?