I’m sure Google is overrun with the query: “Can I say the words ‘Super Bowl’ in my ad without getting a cease-and-desist letter faster than a blitzing linebacker?” The short answer? It’s complicated. The NFL guards its trademarks with the intensity of a goal-line stand. If you want to stay in bounds (metaphorically speaking), you need to know the rules of the game.
The Rulebook (at least in the 9th Circuit): The Sleekcraft Factors
When a trademark owner argues that a brand is infringing, the courts often look at the likelihood of confusion. In Ninth Circuit jurisdictions, this is guided by the “Sleekcraft Factors,” stemming from the case AMF Inc. v. Sleekcraft Boats.
These are the 8 factors courts weigh to see if a consumer might be confused:
- Strength of the Mark: How famous and distinctive is “THE SUPER BOWL”?
- Proximity of the Goods: Are the products related (e.g., sports apparel vs. car parts)?
- Similarity of the Marks: How much does the new mark look or sound like “Super Bowl”?
- Evidence of Actual Confusion: Have customers actually been tricked?
- Marketing Channels Used: Are both parties advertising in the same spaces?
- Type of Goods and Degree of Care: Is the consumer buying an impulse item or a high-end luxury service?
- Defendant’s Intent: Was the mark chosen specifically to ride the NFL’s coattails?
- Likelihood of Expansion: Is there a chance the NFL will eventually enter that market?
The League’s Pass Rushers: Their Federal Court Litigators
NFL Properties is not shy about suing anyone for using their marks like the SUPER BOWL on unauthorized merchandise. So please do not put SUPER BOWL on any article or widget you can sell. You will get sacked. My review of the cases that came up when I searched for “NFL” and “TRADEMARK” and “SUPERBOWL” mostly contained counterfeiting lawsuits they filed. Interestingly, I could not find a case where the NFL sued someone for merely referring to the SUPER BOWL.
The League’s Defensive Line: Their Trademark Lawyers
NFL Properties LLC doesn’t just watch the game; they watch the Trademark Trial and Appeal Board (TTAB). They are notoriously active in opposing marks that they feel tread too closely to their brand. If you think a clever pun is safe, take a look at some of the marks the NFL has challenged over the years:
- NATIONAL FOODBALL LEAGUE (S#: 97783265)
- NATIONAL FOOTBOWEL LEAGUE (S#: 97781100)
- SUPERBOWEL (S#: 97781075)
- SUPERBOWEL SUNDAY (S#: 97783292)
- SAN FRAN 6BOWLS (S#: 88777226)
- ACAI SUPER BOWLS PERFORMANCE (S#: 88620527)
- SUPERBOWL LIVE (S#: 87784828)
- SUPER BOWL (S#: 86906304)
- SUPERBOWLING SPECTACULAR (S#: 86203062)
- SUPER BIG BOWL (S#: 86612461)
- BIG JOE SUPER BIG BOWL (S#: 86612485)
- SOUPER BOWL (S#: 86520699)
- TWO DAT! (S#: 85113096)
- WHO DAT (S#: 85113102)
- SUPERBOL (S#: 77292377)
- THE SOUL BOWL (S#: 78655597)
- SUPERBOWL (S#: 77142144)
- SUPERBOWL (S#: 76213329)
Even a pun like “Souper Bowl” isn’t safe from the NFL’s appetite for litigation.
Your Best Defense: Fair Use and Descriptive Use
You can refer to the Super Bowl, but you have to stay in bounds. Generally, there are two legal shields:
- Nominative Fair Use
This allows you to use a trademarked name to refer to the actual trademarked product. You can use the name to state a fact (e.g., “Our store will be closed during the Super Bowl”), but the moment you use it to sell something (e.g., “The Official Super Bowl Pizza”), you’ve crossed the line. Again, I did not find a case where the NFL attempted to challenge this sort of defense.
- Descriptive Use
This applies when you are using words in their ordinary, descriptive sense rather than as a brand name. If you sell a “super bowl” of soup that is literally a very large bowl, you might have a defense. However, the NFL is historically skeptical of this when it coincides with the big game in February. So it’s best to hold off on this sort of branding to control risk.
How to Refer to “The Game That Shall Not Be Named”
To avoid a legal fumble, many brands use creative workarounds to evoke the event without using the trademarked name:
- “The Big Game”
- “The February Football Finale”
- “The Professional Football Championship”
- “The Sunday Matchup in [City Name]”
The goal is to evoke the event without implying a partnership. You want your customers to think of football, not think the NFL has officially endorsed your promotion.
You can refer to the “Super Bowl” (like I have been this whole time). But be careful about calling something “The Super Bowl Sale” or “The Super Bowl Jacuzzi” as that may imply an association that does not exist.
Finally,
GO HAWKS!
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