With all of the attention being paid to the New England Patriots “Deflategate” cheating scandal, it’s easy to forget that there’s a Big Game next week, and that Big Game is called Super Bowl XLIX (pronounced, “Super Bowl ZLICKS!”), but if you rely solely on certain television personalities for information, you might never know the name of the big game. Former Comedy Central Fun-dit Stephen Colbert drew attention to the phenomenon of an overly-litigious National Football League last year when he promoted his big game coverage of “Superb Owl XLVIII,” and read from an internal Viacom memo warning of the NFL’s “intimidation” of anyone who messes with their trademark game.
Now, Colbert’s examples were mainly of businesses advertising “Big Game” sales, and Colbert himself said he thought better of calling his show “official Super Bowl” coverage, which are arguably legitimate examples of trademark infringement. Advertising a “Super Bowl Sale” could reasonably be seen as inferring an official relationship with, and endorsement by, the NFL, as could Colbert’s hypothetical “official Super Bowl” coverage. Recently, though, the effort to avoid naming the Big Game has gone from ridiculous to insane.
For example, an entire episode of Food Network’s The Kitchen devoted to Super Bowl eats completely and absurdly avoided the phrase by using the “Big Game” euphemism, which at least makes some logical sense when you’re telling people to make their “Super Bowl nachos,” because the NFL could argue this implies a relationship, and your shitty nachos could injure their brand. What possible reason, though, could there be to say “Big Game” in this context?
“The actual big game didn’t take place until January of 1967.”
That’s right, folks, there were no big games until 1967. Before that, no one gave a crap about sports.
You might think you’d do better on cable news, but MSNBC’s Chris Matthews is going to Phoenix this Friday to see “the teams” get ready for the “big game,” when the rest of us will be gearing up for the Super Bowl:
Now, I can understand why they couldn’t use the Super Bowl logo, or say they were doing a special “Super Bowl Friday edition” of Hardball, because the NFL has sold the broadcasting rights to… NBC. But even so, Hardball is a news show that ought to be able to identify the news event it’s going to be covering.
The prevailing line on all of this ridiculousness is that the NFL are such big jerks about is trademarks that people have to be careful, and there is some evidence to back that up. Certainly, the NFL can’t have its image with women tarnished by an unsanctioned Jenna Jameson Super Bowl Party, but did they really have to send a cease and desist letter to an Indiana church group that wanted to charge admission to a 2007 Super Bowl party?
Actually, yes, they do. Apparently. if the NFL becomes aware of an infringement on their trademark, and fails to act on it, they could lose the trademark altogether:
“There’s a legal term known as ‘waiver,’ which basically says it can’t waive enforcement,” (attorney Steven) Smith said. So really, the NFL is forced to make sure that nobody uses their trademarked term “
But what they didn’t have to do was attempt to also trademark the term “the Big Game,” which they tried anyway, in 2006, to prevent companies from “intimating a relationship” with the NFL’s big day:
Asked if a local TV dealership was attempting to intimate a relationship with the NFL simply by pointing out that a customer could watch “the Big Game” on a new flat-screen TV, (NFL director of corporate communications Brian) McCarthy said, “We sell those (sponsorship) rights. In the example you cite, we have an agreement with Samsung on flat-screen TVs. Where do you draw the line? If you don’t trademark your rights, they hold no value.”
At a certain point, though, the NFL might want to consider the value in having everyone on Earth advertising their game for free, and abetting their quest to make it one of the most important events in the world, while also considering the negative consequences of having people think you’re insane.
As it turns out, it isn’t even illegal to use the term “Super Bowl” in a commercial, under the legal doctrine of “nominative fair use,” which allows the use of someone else’s trademark “for purposes of reporting, commentary, criticism, and parody, as well as for comparative advertising.” The problem is that the NFL has been so aggressive about enforcing its trademark that they’ve scared others into self-censorship. or at least, that’s the prevailing theory:
“When you get a cease-and-desist letter from the NFL threatening suit, you’re going to stop using the word ‘Super Bowl’ in your commercial, whether or not it would actually be permitted, if push came to shove, in a legal decision,” (Washington, D.C.-based media attorney David) Silverman said.
That’s all well and good for the Indiana Church Ladies and Jenna Jamesons of the world, who have neither the money nor the higher purpose to fight a fight like this, but a huge media company like Viacom, or MSNBC, or anyone who makes their living with free speech, ought to rebel against the absurd chill that is being blamed on the NFL. Give the Food Network a pass if you’re feeling generous, but MSNBC, a news network whose parent company is broadcasting the game, ought to nut up and show the world they’re not afraid to call a Bowl a Bowl.