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The Zest

Planning a Promo Around the Big Game? Why Ads Don't Say "Super Bowl"

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"Can I run a Super Bowl special?" Super Bowl LX is set for February 8, and if you're planning a promo around it, here's the short answer: you can talk about the game, but you can't make it look like the NFL is behind your promotion. SUPER BOWL is a registered trademark, and the league makes it available to the sponsors who pay for it. That's why so many local ads, menus and sales call it "the big game" instead.

Here's what the law actually covers, and how to plan around it.

Who owns SUPER BOWL

The name is federally registered, and has been for a long time. One registration for SUPER BOWL, covering entertainment services in the nature of football exhibitions, issued in December 1969 and has been renewed since. It's held today by NFL Properties LLC, and the league has other SUPER BOWL registrations covering merchandise.

The league has guarded the name for years. A 2009 trademark newsletter from one law firm described the setup: the official way to use SUPER BOWL in advertising runs through a license and a sponsorship, and unlicensed uses draw cease-and-desist letters and other enforcement.

What trademark law actually stops

Trademark law isn't a ban on saying a word. The federal statute targets uses that are likely to cause confusion about whether you're affiliated, connected or associated with someone else, or about whether they sponsor or approve what you're selling. That's the line for a promotion. The question isn't "did I say Super Bowl?" It's "would a customer think the NFL is part of this?"

Famous marks get one more layer of protection, against dilution. But the same statute carves out fair use, including nominative or descriptive fair use, as long as you aren't using the other party's mark as the name of your own goods or services.

Those two kinds of fair use are worth telling apart. Descriptive fair use is using words, not as your brand, fairly and in good faith only to describe your own goods or services. Nominative use is using someone else's mark to refer to them or their thing. A game-day promo leans on the second kind every time it names the event.

Naming the thing you mean

Courts have long recognized that sometimes the only practical way to refer to something is by its name. In a 1992 case involving the band New Kids on the Block, a federal appeals court explained it with a sports example: it's far simpler to say "the Chicago Bulls" than "the professional basketball team from Chicago."

That court set out three conditions for this kind of nominative use. The thing you're referring to isn't readily identifiable without using the mark. You use only as much of the mark as is reasonably necessary to identify it. And you do nothing that, together with the mark, would suggest sponsorship or endorsement by the mark's owner.

That test comes from one court, the Ninth Circuit, so treat it as a guide to how courts think about the problem, not a checklist that applies the same way everywhere. Its logic still maps onto a promo well. A factual mention that you're open during the game is naming the event. Building a promotion around the name, the logo and the look of the event is something else.

Why "the big game" became the workaround

Because the risk sits in implied sponsorship, a lot of businesses skip the name entirely. "The big game" says what everyone means without borrowing the league's mark, and customers understand it.

The NFL noticed. In early 2006 it filed applications to register THE BIG GAME. The league later said its targets were advertisers using the phrase to ambush the Super Bowl. But the phrase wasn't new: Stanford and Cal have called their annual football game the Big Game for more than a century. The two schools asked the USPTO for more time to prepare oppositions. In May 2007, the league dropped the applications, saying they'd been drafted more broadly than the rights it was after.

Those applications never became registrations, and the phrase stayed the usual way to talk about the game without using its name. It isn't a magic phrase, though. Pair it with the league's logos, team uniforms or "official" language, and the words alone won't fix the impression you've created.

Planning your promo

A few ground rules keep a game-day promotion on the right side of the line.

Name it after your own business. A "Game Day Wings" special under your name builds your brand. A promotion titled after the league's event builds theirs, and it's the clearest signal of a connection that doesn't exist.

Use words, not logos. The league's shield, the event logo and team logos are all marks or artwork you don't have permission to use. The nominative test allows only as much as you need to identify the event, and you never need the logo for that.

Don't say or imply "official." No "official watch party," no "presented with," nothing suggesting a partnership.

Keep factual mentions factual. Your hours, your TV setup, the fact that you're open during the game: those describe what you're doing. The safest wording is still "the big game," which is why so many brands use it.

And if your seasonal promo name is one you plan to keep using every year, treat it like any other brand name. Check that it's strong enough to own, and run a clearance search before you invest in it.

If you're building a seasonal campaign and want to know where your own brand stands, you can see how the search and filing packages work on the services page, and the FAQs page answers most of what comes up before a first call.

Book a free 15-minute discovery call with the attorney (opens in a new tab)

(No legal advice is given on the discovery call. It's a chance to tell me what you're building and hear how the process works.)

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

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