UNAUTHORIZED USE OF SUPER BOWL®️ MAY RESULT IN A PENALTY
With the “Big Game” between those football teams from Kansas City and San Francisco just days away, many people are gearing up to host or attend watch parties to celebrate the NFL championship game. You may have noticed in my opening that I didn’t use terms such as SUPER BOWL®️, CHIEFS®️, or 49ERS®️. That is because those names are federally registered trademarks. The improper and/or unauthorized use of those names could result in you being flagged for a penalty in the form of a cease and desist letter from the NFL, the Kansas City CHIEFS®️, or the San Francisco 49ERS®️ organizations. So what are the rules? When can I use SUPER BOWL®️, CHIEFS®️, 49ERS®️ and the plethora of other related words, phrases and images that are registered trademarks of these organizations?
As with many other legal questions, there is no simple yes or no answer to this question. Trademark infringement is defined as the unauthorized use of a trademark or service mark in connection with goods or services in a way that is likely to cause confusion in the minds of consumers about the source or sponsorship of the goods or services offered under the parties’ marks. It is the sponsorship aspect of infringement that is most likely to be at issue with regard to the use of SUPER BOWL®️ and related marks in that the use of those marks may give the impression that the event, goods or services are somehow endorsed or approved by the NFL. So technically, any use of such registered marks would constitute infringement.
However, Courts, as they often do, have recognized exceptions to this – the most notable of which is the “fair use” exception. The concept of free speech and nominative fair use falls under the fair use exception and allows for marks to be used for purposes of reporting, commentary, criticism, parody, and comparative advertising. That branch of the exception is what allows me to use these marks as a part of this blog.
Noncommercial use is also recognized as falling within the realm of fair use on the basis that the mark is not being used in connection with a good or service. Based on this exception, an individual hosting a watch party in his or her home for friends that are not being charged admission may use the marks on invitations and the like without infringing. On the other hand, commercial use by bars, restaurants and businesses that stand to make money off of the event, regardless of whether they charge admission, likely does not fall within the fair use exception and may subject the owners to a penalty for trademark infringement.
Over the years, the NFL has aggressively pursued infringers in this category by sending out cease and desist letters to those commercial establishments who are using the marks without authorization. This stands to reason since many other commercial enterprises pay big money for the right to use the marks in connection with their products and services. For example, Anheuser-Busch InBev reportedly pays in the neighborhood of $250 million a year to the NFL for Bud Light to be the official beer of the NFL. This deal includes rights to use NFL trademarks, including those related to the SUPER BOWL®️.
A gray area also exists between those two extremes – private and/or not for profit entities that wish to host their own SUPER BOWL®️ party. In 2007, John D. Newland of Fall Creek Baptist Church in Indianapolis received a cease and desist letter from the NFL after promoting a church sponsored event where they planned to show the game on big screen TVs and charge $3.00 for admission. Newland ended up cancelling the party to avoid further entanglement. Arguably, notwithstanding copyright issues involved with the rebroadcasting of the game on big screen TVs, had Fall Creek not charged admission for the party, the fair use exception would likely have applied.
Whether you are a CHIEFS®️fan, 49ERS®️ fan (or a PATRIOTS®️fan licking your wounds this year), we hope that you enjoy the game with family and friends safely wherever you are and without issues of trademark infringement. If you have questions about trademarking a name for a product or service, or if you are concerned that your use of a name, symbol or phrase may infringe on the trademark rights of someone else, contact us to discuss how we can help you avoid being penalized or sacked and score a touchdown for your team!
