Words To The Wise: Be Careful About Super Bowl References.

Story by Inside Radio

It’s that time again. With contenders for next month’s Super Bowl all lined up (just in case: The Los Angeles Rams face the New England Patriots Sunday, Feb. 3 in Atlanta), the attorneys at DC communications law firm Fletcher, Heald & Hildreth are issuing a reminder for broadcasters in a blog post “Remember to Exercise Super Judgment When Discussing the Big Game.”

The goal, according to Kevin Goldberg on the firm’s CommLawBlog: “Covering the fact and the fiction surrounding proper use of the term ‘Super Bowl,’ the names of the participating teams and other NFL trademarks.”

The big picture, he writes: “The legal line is more or less drawn on whether your use of the trademarked term is commercial in nature or not. You should not be using a trademarked term in any promotions, events, contests or other commercial endeavors which might create a likelihood of confusion [between] your company, organization, promotion, event or client and the NFL, its teams, its game or other events.”

Further is the issue of “fair use.” In this case, he says, “We’re talking about ‘nominative fair use,’ which is what gives you the right to use ‘Super Bowl,’ team names, and other NFL trademarks in a legitimate news context.” Specifically, this involves: using the actual trademarked term to identify what you’re talking or writing about; only using that term as necessary for identification purposes (and not engaging in gratuitous use of the term); and not using the term to suggest any sort of sponsorship or endorsement connection with the NFL or its teams.

“As I’ve said in prior posts, and consistent with the other big theme of this post, the NFL tends to ‘game’ the system when it comes to enforcing its trademark,” Goldberg adds. “You need to go no further than stories I wrote about an attempt to register ‘Bong Bowl’ and about an attempt to register ‘Harbowl’ for evidence that the NFL will police its marks to a degree that many might consider excessive under the ‘likelihood of confusion’ test.” He adds, “That’s what you can do when you’re a heavyweight taking on a little guy who’s unlikely to muster the resources to fight back, regardless of what a truly neutral arbiter might decide.”

Goldberg concludes, “Keep all of this–the legal standards and the practical implications–in mind as you ramp up your promotions between now and Feb. 3.”