Dec. 20, 2017

Bowl  Football on a lawn

As a law firm based in Minneapolis, we’re looking forward to having the Super Bowl in town this year.  As we get closer to the game, our brewery and distillery clients have been asking us about advertising for the Super Bowl.  Generally, breweries, bars, distilleries, restaurants, etc. have to be careful about referring specifically to the “Super Bowl.” “Super Bowl” is a registered trademark of the National Football League (“NFL”) and hot damn, the NFL takes it seriously.  I suppose they have good reason to protect that trademark and I suspect they pay their lawyers a lot of money to provide such protection.

Super Bowl Trademark Rules

If you own and operate a brewery, bar, or similar facility and want to advertise events surrounding the Super Bowl, the question then becomes, how can you do it while avoiding Super Bowl trademark infringement?  For starters, you are not supposed to use the phrase “Super Bowl” in any way.  If you do, the NFL may sue you or at least send you a cease and desist letter. I suppose you could hang a cease and desist letter on the wall of your facility and ignore it because you’ll be running Super Bowl advertising for such a short period of time, but there’s still some risk.

Frankly, having fun with it is a great idea (e.g., The Game That Shall Not Be Named; The Football Game That We Cannot Expressly Refer To For Legal Reasons; Roger Goodell-Gate; The Publicly Funded Stadium Game; Roger Goodell Vs. Jerry Jones Part II; Lwob Repus (think about it)). There’s a lot of room to play around.

Odds are, there will be bars all across the country that use the phrase “Super Bowl” and don’t receive a cease and desist from the NFL — there are probably just too many for the league to police effectively.  In recent years, it appears that the NFL has not been too aggressive, so long as a bar does not charge an admission fee for Super Bowl related events. Nonetheless, you’re probably better off foregoing the use of this buzzword in your advertising in order to avoid Super Bowl trademark infringement. If the NFL does come after you for using “Super Bowl” in your advertising, you could get some press out of it, but it’s probably not worth the risk.

If you still want to use “Super Bowl,” you likely have a fairly strong legal argument that your use would fall under the “nominative fair use” doctrine, but you probably don’t want to spend the time and money it would take to make that argument against the juggernaut that is the NFL. As much fun as it would be to take them to court over this issue, it’s probably a lot more trouble than it’s worth.

Under the nominative fair use doctrine, you have a basis for using an otherwise protectable mark. It applies when three elements are met:

  •    First, the plaintiff’s product or service in question must be one not readily identifiable without use of the trademark;
  •   Second, only so much of the mark or marks may be used as is reasonably necessary to identify the plaintiff’s product or service; and
  •     Third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

Despite the fairly strong argument for nominative fair use, you may want to avoid playing with fire and have fun with it. Get sarcastic, snarky, and downright mean if you want to (call it the Stupid Bowl if you want), but avoid calling it the Super Bowl. But if you want to take on fighting the NFL, let us know!