With the Super Bowl and then the Winter Olympics, February may be the greatest month in sports, but trademark lawyers will have their eyes on more than just the games.
Both of these events are heavily trademarked with the NFL holding eight trademark registrations “containing the words SUPER BOWL, as well trademark registrations for the terms PRO BOWL and even SUPER SUNDAY. Aside from these trademark registrations, the NFL also owns the copyright to the telecast of the game itself,” according to communications lawyer David Silverman, partner at Davis Wright Tremain. Even the yellow first down line is trademarked.
These trademarks are such big business for the NFL that the league is not afraid to come after fans, according to PR Daily.
In 2006, when the Indianapolis Colts played the Chicago Bears in the Super Bowl, the NFL sent a letter to the Fall Creek Baptist Church informing congregants they were in violation of trademark laws. Their offense? According to WTHR, they had printed fliers advertising their Super Bowl party and the size of the TV they were going to use to broadcast the game was more than 55 inches.
It’s such a common issue with churches that a couple years ago the Church Law Group put out this video that gives tips on having a legal Super Bowl viewing party at a place of worship.
Fans typically won’t end up in court for holding a Super Bowl watch party because of the First Amendment protects a certain amount of fair use if a trademark isn’t used for commercial reasons. However, the NFL won’t be too kind about companies trying to trademark their own “super bowl,” and last year the league even managed to convince Roy Fox to ditch “Harbowl,” a play on the names of the coaches from the San Francisco 49ers and the Baltimore Ravens. According to trademark attorney Kevin Goldberg,
the NFL made a bunch of threatening noise about Mr. Fox’s application and thereby convinced him to abandon it. My point was to remind one and all that the NFL is super-aggressive when it comes to asserting control over anything that could conceivably be related to the Super Bowl®. (Don’t forget that R-in-a-circle!) Because of the NFL’s strong-arm approach, we annually warn folks to avoid using the term “Super Bowl®” in any way that might likely create an impression that their product or event is authorized or endorsed by the NFL.
At least the league was nice enough to warn the all 565 municipalities in New Jersey about the super-sized lawsuit they could be in for if they infringed on the Big Game, which is one the legally accepted substitutes.
It would be just short of impossible for the International Olympic Committee to send the world a stern letter about trademark policy, but national committees are already starting to crack down a month before the games. The Canadian Olympic Committee send a cease-and-deist letter to The North Face for trying to associate their winter clothing with the games in Sochi even though they are not an official sponsor, reported CBC News.
The US Olympic Committee is already prepared for nonsponsor companies trying to cash in on the game by “getting specific statutory protections in the US for the use of the term the Olympics and the interlocking rings that symbolize the games,” according to broadcast lawyer David Oxenford, partner at Wilkinson Barker Knauer.
Advertising and marketing attorney Gonzalo Mon, partner at Kelley Drye & Warren, warns that even the most subtle references to the Olympics can be legally precarious.
For example, during the 2010 Olympics, Subway ran a TV commercial in which Michael Phelps swam through the wall of a pool, across the country, and towards Vancouver, the site of that year’s games. Neither the USOC nor McDonald’s (a top sponsor in the Quick Service Restaurant category) took kindly to the ad, and the USOC lashed out at Subway for engaging in “ambush marketing.”
Unless marketers can replicate the hilarious success of Samsung’s Super Bowl ad last year, challenging trademarks won’t be worth it.