Come Witness The Commentators That Help The NFL Fool The Public About Its 'Super Bowl' Trademark Rights

The Super Bowl is here and this Sunday many of us will bear witness to the spectacle that is million dollar advertising spots mashed together over four hours with a little bit of football thrown in for intermissions. As we've discussed before, this orgy of revenue for the NFL is, in some part, propagated by the NFL's never ending lies about just how much protection the trademark it holds on the term "Super Bowl" provides. While the league obviously does have some rights due to the trademark, it often enjoys playing make believe that its rights extend to essential control over the phrase on all mediums and by all persons for all commercial or private interests. This, of course, is not true, and yet a good percentage of the public believes these lies.

Why? The NFL, pantheon of sports power though it may be, is not so strong as to be able to single handedly confuse millions of people into thinking they can't talk about a real life event whenever they want. No, the NFL has been helped along in this by members of the media who repeat these lies, often in very subtle ways. Ron Coleman of the Likelihood Of Confusion site has a nice write up publicly shaming a number of these media members, including Lexology's Mitchell Stabbe.

At Lexology, Mitchell Stabbe writes a post about why the SUPER BOWL(R) is the specialest trademark ever, laying out a thorough analysis of "activities that create a significant risk of an objection by the NFL." He soberly notes that while the NFL failed in its effort to register THE BIG GAME, "The NFL also has federal trademark protection for 'Super Sunday', 'Gameday', 'Back to Football', '1st and GOAL' and over a hundred other marks."

Except that Stabbe's analysis of how to avoid the ire of the NFL includes such advice as suggesting that businesses not wish teams or players good luck, for newspapers not to have any special sections covering the Super Bowl be sponsored by any companies, and for restaurants and bars not to use the term in any watch parties they have for the game. In case it isn't clear, none of those are matters of actual trademark infringement necessarily. Stabbe doesn't bother to point out that there's no likelihood of confusion in the marketplace here, and that basic nominative fair use (i.e., naming the thing you're talking about) is not going to dilute a trademark either. These types of advice columns, seemingly from experts on the subject, undermine the public's awareness of its own rights when it comes to using language.

Another example has media members acting as though there is special space carved out just for them, or certain members of the public, to use the phrase "Super Bowl."

In a post at a website called "SB Nation" owned by Vox Media, Jeanna Thomas noted a year ago, quite correctly, that "The NFL keeps firm control over its trademark on the words 'Super Bowl,' and that control makes the league a whole lot of money." Unfortunately, the next sentence starts, "The Super Bowl (we can say it, because here at SB Nation we write about sports," which would be bad enough without being topped by the double-barreled whopper to the effect that "Private citizens are fine to use the phrase without consequence, as long as there's no financial consideration involved."

It should be clear that all of these "we're barely safe to use this term and avoid the NFL's team of lawyers if we follow these very strict rules" creates the impression that the majority of the rights to use the term belong to the NFL, with a tiny bit leftover for the public. This is not how trademark law works. Trademark rights are limited in scope and infringement is reserved for particular circumstances. Just because the NFL pretends otherwise does not make it so, except it can become effectively so with people who should know better repeating these lies.

So have fun watching the Super Bowl. I can say that because I'm a blogger, I submitted six forms of identification and a urine sample to Roger Goodell's office (unsolicited, by the way), and I have created a totem to pray to my lord and savior Tom Brady, made out of a combination of salami, sharp cheddar cheese wedges, and pickle slices. If I hadn't... well, let's just say I'm happy to still be alive.