Rubin: Ignore the NFL — you can so say Super Bowl
The National Football League once threatened to sue a Baptist church in Indianapolis for putting out a flier about a Super Bowl party.
“Super Bowl,” the league’s lawyer harrumphed, is a trademark and not to be trifled with by a piddling church hoping to repair its roof or help some of those pesky poor people.
Actually, the church was within its rights. So is any sandwich shop that advertises a super-good Super Bowl deli tray.
The NFL has been highly successful, however, in getting everyone to think otherwise. At least it doesn’t lay claim to “God” or “Sunday” — although it does claim exclusive rights to “Super Sunday.”
The Super Bowl — the actual game, not the trademark — kicks off at 6:30 p.m. Sunday in Santa Clara, California, and unlike Fall Creek Baptist Church, I can say Super Bowl without worry.
Super Bowl, Super Bowl, grossly overhyped Super Bowl, brought to you by the drooling, rabid, carcass-gnawing predator that is the NFL. Super Bowl, Super Bowl, Super Sunday.
Take that, you super-sand-kicking bullies, for I am armed with the legal doctrine of “nominative fair use.”
Essentially, says University of Michigan law professor Jessica Litman, nominative use means “you’re allowed to use the name of the thing to talk about the thing.”
What brings that particular thing to mind are all the Super Bowl-related advertisements that tie themselves to the game without daring to mention its name.
ABC Warehouse’s circular comes close with its “Super Sale” on plus-sized televisions: “Our super low prices will bowl you over!”
Otherwise, everyone steers clear of the grumpy NFL and its rampaging horde of lawyers.
Kroger has displays of snacks it’s calling “Game Day Greats,” a category that includes red velvet Oreos.
More commonly, everyone from Aldi to Chicken Shack to Hansons Windows to your neighborhood Coney Island is playing off the phrase “Big Game” — which the NFL actually tried to trademark until Stanford and Cal pointed out that their annual football grudge match has been called the Big Game since 1902.
The Hiller’s supermarket chain ran an ad six years ago about meeting all your Super Bowl needs.
The NFL responded with a cease-and-desist letter, and owner Jim Hiller ceased and desisted. Since then, he has sold his stores to Kroger for enough money that he could tell the NFL to go deflate itself.
Not everyone has that sort of disposable cash, unfortunately, which is how the league gets away with what UM’s Litman calls “trademark bullying.”
Keep in mind that NFL commissioner Roger Goodell makes $44 million a year just to issue disciplinary edicts that get overturned on appeal. Suing a furniture store that sold Super Bowl-ready recliners would be chump change.
The league, Litman explains, is protecting its advertisers and its revenue stream. If Ptomaine Burger has paid big money to be the official Super Bowl fast-food sponsor, it doesn’t want to see Salmonella Subs using the event’s name.
“Threatening to sue dissuades the competitors,” she says. “If the NFL is going to take me to court and it’s going to cost me $100,000 to win, I’d rather call the game Fred and not get sued.”
Fair is fair
A neighborhood tavern cannot legally say it’s the official Super Bowl spot to drink Pabst and eat chicken wings until you turn greener than AstroTurf.
That suggests an association with the game that it did not purchase. But the same tavern can rightfully say it has 37 wide-screen TVs and is therefore a fine place to watch the Super Bowl.
The question is, how badly does the tavern want to use the name? Will its business increase by six figures if it puts “Super Bowl” on a flier instead of “Big Game?”
The NFL, Litman says, “is willing to spend a zillion dollars to get its way,” and it’s simply not worth that much for anyone else to be right.
When the match-up is nominative fair use vs. nominative scads of cash, fair use is a six-touchdown underdog — and the smart money is on the favorite.