How to get the NFL mad about calling the Super Bowl ‘the Super Bowl’

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Americans make too much of the Super Bowl.

I know this seems intentionally contrarian, and, to some extent, it is. But we do. We spend all of this time talking about it and everybody watches it and we have parties and all that. On rare occasions, it’s a good game. Often, it’s not. At some point, someone figured out that an effective way to offset this tepidity was to have interesting ads run in the breaks, so that became a thing. By now, though, it’s mostly the same stuff: Budweiser doing 14 versions of a wacky thing, a heartfelt spot about family from someone like Target that runs three times in the fourth quarter, a spot from Google that cleanly blends primary colors with reflecting cellphones . That you can visualize all of those immediately upon reading the sentence proves the point.

This year, we get all of that plus the Cincinnati Bengals. Anyone who says they are enthusiastic about it is flat-out lying.

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There is, however, a hackneyed aspect of the Super Bowl that I’ve always found interesting: the NFL’s hyperactive protection of the term “Super Bowl” itself. This game makes everyone involved an outrageous amount of money, and so the league runs a Stasi-level policing effort to ensure that the people who are allowed to use “Super Bowl” are the only people who use “Super Bowl.”

In 2007, that meant hollering at a church that was trying to raise money by hosting a watch party for the game. An NFL spokesman told CBS News that this wasn’t a big deal and that the league actually yelled at churches all the time.

“They say ‘Thanks’ and they have their Super Bowl viewing parties within the rules,” he explained. All a house of worship has to do follow the rules set by the NFL and it is fine. What’s the big deal?

Many people did not see this as not a big deal, so the NFL later changed its policy somewhat. In the years since, trademark lawyer Mitchell Stabbe wrote in his annual explanation of how to avoid irritating the league, “the NFL has said that it will not object to a church viewing party for the Super Bowl if it is held in the church’s usual place of worship and no fee is charged for attending. ” So that’s nice.

I reached out to Stabbe because I was exploring a story about what sort of pitch I might make on social media that would trigger a cease-and-desist response from the NFL. In addition to the other things I find annoying about the Super Bowl, I find it annoying that I have to see ads from local supermarkets trying to sell me potato chips to eat while I watch “the Big Game,” which is how everyone talks about the Super Bowl without talking about the Super Bowl. A Voldemortian that-which-shall-not-be-named – unless you lay out massive amounts of money.

So I threw scenarios at Stabbe. With the first, I asked what might happen if I tweeted a link to The Washingotn Post’s subscription page with the lure, “Buy The Washington Post the day after the Super Bowl to see the score.” And his unsatisfying answer was: nothing.

“The First Amendment creates a wider latitude for the use of third-party trademarks because it’s communicative or expressive speech rather than commercial speech,” he said, speaking within the context of my pitch for the paper. “Now the fact that The Washington Post ostensibly is out to make a profit doesn’t mean that it’s commercial as opposed to communicative. That’s not the test of commercial. Commercial means you’re just proposing a transaction. You’re trying to sell something. So newspapers and other media have pretty wide latitude in how they can use third-party trademarks because they are protected by the First Amendment. ”

I amended my proposal. What if, instead, I tried to sell a TV cabinet on Facebook (as though people don’t wall-mount televisions these days, but you get the point), and pitched it as perfect for watching the Super Bowl? Again, Stabbe was skeptical that the NFL would care.

“The real question still is whether or not that’s trademark infringement or what’s called ‘nominative fair use,'” he said. “You can use someone else’s trademark to refer to them when there’s basically no other way to refer to them and it’s not misleading; [when] it’s clear you’re talking about the third party, you’re not trying to brand yourself. So to me? In my humble opinion? If you bury Super Bowl in the middle of a declarative sentence, and you don’t draw attention to it, that’s not trademark infringement. ”

He added an important caveat: The NFL might not agree. The NFL might think I was trying to leverage its “good will” to sell my product, which – fair, I was. This is key: The boundaries of the law are not necessarily what guides the NFL’s response; instead, the whims and will of the NFL guide it. Stabbe could explain what response he might expect, but he certainly couldn’t anticipate where and how the NFL might deploy its police force. (A spokesperson for the NFL did not follow up on my request for an interview.)

“The test in trademark law is, is it likely to create consumer confusion?” he explained. “But trademark owners can be aggressive.” Stabbe offered the example of Best Buy selling its television cabinets with a circular emphasizing the words “Super Bowl.” “The NFL’s point of view is, if we are licensing Walmart to be our exclusive partner for the Super Bowl, they’re not going to be happy if Best Buy can run this ad.”

It is, of course, useful for the NFL that this perception of overzealousness exists. “Does the NFL sue that often? Well, ”Stabbe pointed out. “But who wants to run that risk?” Those churches that acquiesced to the NFL’s rules weren’t doing so because they appreciated the league’s viewpoint on whether they could have three dozen people come watch the game. Their saying “thanks” was saying “thank you for not suing us into oblivion, which you could do, because you have 22.8 gazillion dollars.”

At its heart, the question is money. If the NFL thinks that your use of “Super Bowl” infringes on the financial agreements it has in place or on its potential to affect future lucrative agreements, you will have a process server on your doorstep before you finish typing “SUPER.” The word “thinks” is the crux of that sentence; as noted, the league takes an expansive view of this. Churches charging a fundraising fee for a Super Bowl party, for example, is a slippery slope toward… uh… something that affects the bottom line, apparently. Someone filing for a trademark for a charity bowling event – “Superbowling Spectacular” – faced opposition from the league because step one is you raise money for nonprofits with a bowl-a-thon, step two is [??], and step three is the NFL goes bankrupt. It’s almost too obvious.

Finally, I cut to the chase. What Stabbe was saying was that I, in my capacity as a guy simply trying to goad the NFL into being annoyed, would be hard pressed to gin up a scenario in which that would happen. So I asked him that if he were advising a small-business owner about how to craft a sales pitch around the Super Bowl, what they should do.

He offered some thoughts about the purposes of trademark law, specifically to “protect consumers from confusion as to affiliation or approval” and to “protect the goodwill that the trademark owners built up” in their use of the mark. But his answer for how a business could be careful was succinct.

“Use ‘the big game,’” he said.

Once again, the Super Bowl gets less fun.

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