By John Ottaviani

A sports report on the local radio station broadcast this morning reminded me that we are in our annual period where the NFL causes all broadcasters to step “through the looking glass” and act in accordance with the NFL’s sometimes silly view of trademark law.

Several years ago, the NFL cracked down on the use of various trademarks relating to the “Super Bowl,” its annual professional football championship game. Understandably, the NFL was concerned about dilution of its marks, as well as losing the ability to enforce its marks by not policing uses where someone was trying to falsely suggest a connection with, or endorsement by, the NFL with their product or service (for example, the local supermarket’s, “Super Bowl Sale”). The NFL even went so far as to create a legal memorandum concerning “Broadcasts and Promotions Related to Super Bowl XXXVIII“), in which several phrases, including “Super Bowl,” “Super Sunday,” “National Football League,” “NFL,” and the NFL shield and Super Bowl logos, as well as team names, are listed, with an admonition that “an entity cannot legally say or print any of these protected words or use these protected logos in its marketing or promotions.”

Now, I understand that the NFL does not want entities using these protected terms or logos for marketing or promoting their own goods and services. But saying that an entity “cannot legally say or print any of these protected words” goes far beyond the recognized boundaries of trademark law and the First Amendment. Whether one calls it “nominative fair use” or use that is not within the scope of the Lanham Act, there are clearly instances where one can say and use these words without fear of trademark infringement. For example, there should be no problem with the local sports broadcaster stating that the winners of the two football games this weekend will be playing in the “Super Bowl” on February 5th, instead of saying that the winners will be playing in “the big game in Detroit” or “the professional football championship game in Detroit.” One has always been able to legitimately use the name of a product or service to identify that product or service, and the NFL’s telling broadcasters otherwise is just plain silly.

UPDATE: Mike Madison discusses the problems of brand control due to the Internet.