Are You Allowed to Say “Super Bowl?”

January 31, 2020

The NFL’s Aggressive Brand Enforcement Game Plan

By Kyle Hutnick

super bowl brandAs the Chiefs face off against the 49ers in Miami on Sunday, any discussion about the “Big Game” would be incomplete without mentioning… the commercials. Virtually every aspect of the game is branded (and enforced): the commercials, the branded halftime show, the trophy, the merchandise and even the name itself.

Yes, the “Super Bowl” is a registered trademark of the NFL, which also owns the trademark “Super Sunday,” “Pro Bowl” and a laundry list of other trademarks: the names and nicknames of each of their teams, helmet and uniform designs, even their players’ last names are trademarked — although player numbers are not protected. So yes, companies must have a license to use the NFL’s unique trademarks. Some brands even develop their own phonetic equivalent to get in on the fun. For example, late night host Stephen Colbert encouraged his advertisers to use the term “Superb Owl” instead of “Super Bowl.” And brand protection in professional sports isn’t unique to the NFL, as we discussed previously when Cleveland hosted the All-Star Game.

But registering to protect one’s brand is only the first step in a comprehensive brand enforcement strategy.

Once a brand is registered, it must also be protected and enforced. Not surprisingly, the NFL has developed a vigorous brand protection strategy. Like many other companies, the NFL’s enforcement strategy typically begins by sending a cease and desist letter. One advantage of sending this letter, particularly during the early stages of infringement, is that it can be a relatively low-cost and expedient way to achieve a brand’s end goal — stop the infringement.

For example, the NFL successfully shut down a church that planned to host a “Super Bowl Bash” during Super Bowl XLI. The move was part of a long-time NFL policy to shut down all “mass out-of-home” viewings of the Big Game, since out-of-home viewings don’t contribute toward Nielsen ratings.

A brand enforcement strategy can be effective without court intervention. But it’s sometimes necessary.

The NFL is not afraid to enter the courthouse to defend its trademarks. In fact, it seems to be an annual tradition for the league to file lawsuits ahead of the Superbowl to prevent unauthorized users from infringing upon its trademarks. These lawsuits are designed to protect not only the NFL, but also the hundreds of companies who have licenses to use NFL official trademarks. Legal action can even be taken against hundreds of defendants at a time. Of course, many of those cases involve low-quality “counterfeit goods,” and seek emergency and permanent injunctions to stop the infringement.

So while you’re watching the big game, pay attention to which brands shelled out the cash to use the term SUPER BOWL or any of the NFL’s other trademarks. (Hint: Anheuser-Busch spends around $250 million each year to be the only alcohol company allowed to advertise nationally during the Big Game). As the teams face off on Sunday, you can be certain that the lawyers will be watching closely, too.

KJK’s Brand Enforcement Group is a team of professionals who understand companies’ needs and the ins-and-outs of the industry that is brand protection. If you are interested in learning more about this evolving area of law, contact Kyle Hutnick at 216.736.7243 or kah@kjk.com, or reach out to any of our Brand Enforcement professionals.


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