The super bowl of SUPER BOWL®s
I used to have the Super Bowl® trademark gig all to myself. The last post I did was in 2015, when I chided Consumer Reports for (rather irresponsibly, considering it’s Consumer Reports) misstating the parameters of fair use of the SUPER BOWL® mark. By then, of course, it was already meta-commentary on my part.
Even by 2010, I was burnt out and cynical about the whole thing, noting in this post that “I was going to skip it this year, honest. But the [SUPER BOWL® trademark nonsense] really does get even better, not worser” (I did collect all the previous Big Game trademark posts here at that one, so I won’t do it here). My favorite may be this post, which was really just a tribute to the awesome Samsung commercial that acknowledged, as only we post-moderns could, the cultural moment of the whole thing of it.
So now everyone is in on it, but instead of feeling vindicated, I feel left out. (Of the SEO traffic these posts used to generate, that is.) So this year I’m offering a roundup of some of the now-cliched stories being thrown up about why the SUPER BOWL® is the specialest trademark ever:
At Lexology, Mitchell Stabbe writes a post about why the SUPER BOWL® 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.”
Way back in September, the Minneapolis Star Tribune — anticipating Super excitement in the Twin Cities, hosts of the 2018 game — published a piece advising people just now being reintroduced into the non-penal population to “Be Careful with the phrase ‘Super Bowl’ in marketing; NFL has the trademark.” Reporter Nicole Norfleet (who didn’t write the headline) quotes an NFL lawyer who lies, “The NFL brand and the Super Bowl brand are incredibly valuable, but we are also working to protect our fans so they enjoy an authentic NFL experience and are not confused about the events and products they’re seeing.” Oh yeah, right — the old “inferior product” argument. Always looking out for the fan, right, NFL? (They would approach honesty with this approach, but admittedly it’s probably too complicated for regular people.)
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.” Being a private citizen myself, I do not know and cannot divine, by the way, what the “SB” in “SB Nation” stands for, but if you want to advertise on SB Nation, click here.
I could go on. And Kevin Goldberg, at the CommLawBlog published by Fletcher Heald & Hildreth, has himself done so — repeatedly, for years. Kevin, who also has good taste in music, put it very well in this 2011 SUPER BOWL® trademark post:
The League’s position, as far as we can tell, is that pretty much any non-news use of the Two-Word-Phrase-That-Shall-Not-Be-Spoken necessarily implies an affiliation with the NFL. To the NFL, this in turn apparently means that the NFL is absolutely entitled to control who can utter the Unutterable Phrase and when It can be uttered. Whether that view is supported by, say, the law is far from clear. (But, as Gene Pitney once cogently observed, in some instances “a law book [does] no good.”)
However the law might stack up on this, it’s probably best to view the NFL as you would the obnoxious loud-mouth jerk down at the other end of the bar who’s had a few and is loudly insisting that his knowledge of sports trivia is superior to everybody else’s. Maybe he’s right, maybe he’s not – but who wants to bother to find out?
Truer words were never said. But close! Can we decide by a coin toss?