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Around this time every year there are lots of ads talking about 'The Big Game' or the 'Suberb'-something. Essentially whatever it takes to say their thing is for the Super Bowl, without actually using the word.

I've heard that this is because the NFL will sue you for doing this, but I don't understand why that would be the case. Also, I'm not sure what the legal basis would be for that kind of suit, given the event is a very major public event.

My question is two-fold:

  1. Does the NFL sue entities for using the term 'Super Bowl' when advertising?
  2. What is the legal basis for this when it's such a public event?
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  • 14
    I've never heard of anyone referring to the Superb Owl except tongue-in-cheek.
    – Ertai87
    Commented Jan 28, 2020 at 22:01
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    As per a recent corporate email typo, you can call it "superbowel" and people will know what you mean.
    – Criggie
    Commented Jan 29, 2020 at 1:23
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    @Ertai87 Observe: reddit.com/r/superbowl
    – Dai
    Commented Jan 29, 2020 at 8:35
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    I had to laugh a few months back when a local store's commercial tortuously referred to "the big game at the end of the season between the champions of the National League and the American League" (instead of "the World Series"). It was clearly the product of scared lawyers.
    – bta
    Commented Jan 29, 2020 at 20:13
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    @bta Better than tortuous than tortious, amirite?
    – chrylis -cautiouslyoptimistic-
    Commented Jan 30, 2020 at 6:45

1 Answer 1

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There is a general belief that a term being trademarked means that it's illegal to use the term without permission from the trademark holder, but that is false. It is illegal only if it is done in a manner that suggests endorsement by the trademark holder. For instance, selling a football as a "Super Bowl football" would be trademark infringement, as it implies NFL involvement in the production of the football. Simply talking about the Super Bowl, such as saying "Our construction company built the stadium the Super Bowl is being played in" is not trademark infringement. Simply using a trademarked term to discuss the thing it refers to, without implying endorsement, is known as "nominative use".

However, even if one would be on solid legal footings and could win a lawsuit on the basis of nominative use, one might avoid using a trademark to avoid the hassle of being sued.

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    I'm unclear on the term 'nominative use'. There's a gambling website where I live that keeps running radio ads trying to get consumers to place bets on the 'the big game'. Is it considered suggesting endorsement if they were to say, place bets on the Superbowl?
    – Pyrotechnical
    Commented Jan 28, 2020 at 23:03
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    @Pyrotechnical Another concern is always "Can I pay my lawyers as much as the NFL can pay theirs?" and the closely related "How much more will I make if I say 'super bowl' in an ad vs use a phrase that everyone knows means 'super bowl'"? If the value in the latter is smaller than the risks implied by the former, game theory says avoid conflict. This answer already mentions this in the final sentence.
    – Bryan Krause
    Commented Jan 28, 2020 at 23:30
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    @Pyrotechnical That's fine, but when you start to try to explain "why does person X do this thing?" it's pretty rare that a legal basis is sufficient explanation for the behavior.
    – Bryan Krause
    Commented Jan 28, 2020 at 23:34
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    @Pyrotechnical perhaps Stack Exchange's own trademark guidance might help: "So if you were making a product, and you used a <trademark items> in your product (or in its advertising) in such a way that would mislead someone into thinking that your product was owned by, operated by, endorsed by, or in any way part of <trademark holder>, you would be violating the trademark and this would not be legal."
    – Andrew T.
    Commented Jan 29, 2020 at 4:10
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    @Pyrotechnical this is similar to LEGO® Answers Stack Exchange was requested to change its site name by The LEGO Group
    – Andrew T.
    Commented Jan 29, 2020 at 4:35

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