Every year at this time clients call who want to take advantage of Super Bowl frenzy, whether by running an online sweepstakes, offering a special deal to customers on Super Sunday, posting memes on their Facebook pages, sending out tweets in support of their favorite team or hosting a viewing party.
If you are thinking of running a Super Bowl promotion, we’ve put together this short playbook to try and keep your promotion from getting sacked by the NFL.
#1 – Don’t call it a Super Bowl promotion. The “Big Game” is a popular and legally permissible alternative. Super Bowl is a registered trademark owned by NFL Properties LLC. Official sponsors pay for the privilege to use the trademark under license, and if you are not an official sponsor, you must be careful about your use of the trademark. While some uses of trademarked terms are legally permissible under the doctrine of fair use (like our use of Super Bowl in this post), anything that suggests an official connection or sponsorship with the NFL might get you into hot water.
#2 – Stay away from anything else that suggests authorization, sponsorship or an official connection to the NFL. This includes using the Super Bowl 50 logo, the team logos and any registered slogans in connection with commercial promotions. Also be careful about using the word “official.” Remember that individuals who post on their own personal social media pages have much more latitude than advertisers when it comes to use of trademarks and copyrighted material.
#3 – A big game viewing party could mean big trouble. Just because you’ve juked the trademark issues doesn’t mean that your “Big Game” promotion will be trouble-free. The NFL has been quite zealous over the years in shutting down unauthorized Super Bowl viewing parties hosted by organizations looking to cash in. The rules are quite complex and not very interesting, so we’ll just cover the basics here. Copyright law allow you to show the big game in the comfort of your own home to friends and family on a screen of any size without a problem, assuming you don’t charge your neighbors an entry free. (Note that demands for homemade guacamole and beer are not entry fees, but neighborly things to bring over). If you are a business and want to show the game in a commercial space, the laws are more restrictive and differ depending on whether the location is a “food service or drinking establishment” or not. In general, you could be violating copyright law if you show the game on a screen larger than 55 inches, have more than one television per room, use more than four speakers per room and/or charge admission. Don’t worry – your favorite sports bar likely (hopefully) has a commercial cable or satellite package that allows them to do more. In recent years, the NFL has also established special rules for church groups that permit more than copyright law allows.
#4 – Always root for the home team, but don’t congratulate your favorite players in an ad (and that includes social media posts from your brand’s account). Last year, a jury awarded Michael Jordan $8.9 million after a grocery store took out an ad congratulating him for his induction into the Basketball Hall of Fame. Prior to the jury verdict, the case went up to the Seventh Circuit and the court held that the ad qualifies as commercial speech, defeating the defendant’s First Amendment defense.
Don’t forget to keep this playbook handy for Oscar Night®, March Madness® and the Road to Rio® with Team USA® because the NFL and Michael Jordan aren’t the only ones who protect themselves against unauthorized promotions.
