In today’s age of e-commerce, branding is everything. Companies spend millions creating the perfect logo, marketing campaign and catchphrase, and millions more on TV commercials and everywhere-you-turn Web ads. For these reasons, trademarks and licensing agreements are big business, particularly with regard to mega moneymakers like the Super Bowl or star-studded award shows. In general, always think twice before using any likeness even remotely related to the intellectual property of these events, or be ready for a fight.
What is covered by a trademark?
Trademarking is a practice designed to identify and classify a certain item or product. The concept of trademarking was conceived centuries ago when goods displayed identifying marks that allowed buyers to differentiate between various competitors in the area. Since then, trademarks have grown to include words, phrases, logos, symbols, slogans or anything connected to and unique to the brand. In other words, trademarks are designed to prevent competitors from profiting from or gaining notoriety for a confusingly similar product, which could detrimentally dilute the market.
The Super Bowl
With regard to the Super Bowl, almost everything is protected. For starters, the term “Super Bowl” is trademarked and owned by the NFL. Never one to do things small, the NFL also trademarked eight other terms containing the words “Super Bowl,” as well as “Super Sunday” and “Pro Bowl.” This year, take note of Super Bowl ads and promotions offered by businesses other than the 22 or so corporate sponsors of the game. It’s highly likely they will use a phrase like “Big Game,” which the NFL tried unsuccessfully to trademark in 2006.
If you’d rather watch red carpets than turf, February also brings the entertainment industry’s pre-eminent night of glitz, glamor and gaffes: the Oscars. If you’re planning on an Oscar-watching party, keep in mind the many aspects of cinema’s Big Game that are also protected by a trademark, including:
- The Academy Award of Merit, the statuette known as the Oscar
- The words “Oscar,” “Oscars,” “Academy Award,” “Academy Awards,” “Oscar Night” and “AMPAS.”
- Gold miniature Oscar statuettes
Practically speaking, what’s allowed?
Hosting Oscar or Super Bowl parties with friends in your home is completely allowed, provided there is no commercial gain to be had by the host. Likewise, uttering the trademarked Super Bowl and Oscar phrases is allowed, as is purchasing gear from licensed retailers.
The key to avoiding liability is staying within the First Amendment’s “fair use” doctrine, a law designed to use freedom of speech to counterbalance the rigidity of American trademark law. Fair use of a trademarked concept generally refers to using the trademark in a descriptive or informative manner for those non-commercial purposes described above.
What can land you in ‘cease and desist’ territory?
In general, use of a trademarked image or phrase will only be met with a cease and desist letter if the user is attempting to earn financial gain from the trademarked image or is otherwise attempting to use the trademark for commercial purposes.
This could include any of the following:
- Hosting an Oscar trivia night with a cover charge
- Restaurants or bars advertising a Super Bowl party
- Creating and selling T-shirts with the Oscar statuette image or an NFL team logo
- Businesses offering Super Bowl discounts or Super Sunday markdowns
The NFL does not discriminate when protecting its brand. Believe it or not, the league has issued dozens of cease and desist letters to churches hosting Super Bowl parties over the years, prompting a church law group to publish a best practices guide for denominations looking to avoid liability.
The NFL also sent a warning letter to all 565 municipalities in New Jersey the year the Super Bowl was hosted in the Meadowlands, asking community leaders to encourage residents to celebrate the arrival of the Big Game but keep trademark regulations in mind.
And as NFL spokesperson Brian McCarthy has stated, “When we become aware of a potential violation, we will be very aggressive, and sending a cease and desist letter would be the first step.”