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Adventures In Fair Use: Or, Why The NFL Is Wrong About Who Can Say "Super Bowl"

The NFL hates it when someone uses "Super Bowl" in an ad. But do they really have a leg to stand on when they send out cease-and-desist letters? (No. No, they do not.)

It takes balls to use "Super Bowl" in your ads.
It takes balls to use "Super Bowl" in your ads.
Kirby Lee-USA TODAY Sports

We've reached that time of year when advertisers go out of their way to hint at the phrase "Super Bowl" without actually saying it. We're inundated with ads telling us to buy a new TV "in time for the Big Game."

But, as Houston lawyer David Clark asks:

Why are we reduced to using nebulous terms like "The Big Game" or "The Pro Football Championship" to identify and describe a game? Why is the NFL so trigger-happy in seeking to stop all uses of "Super Bowl" that are not made by direct sponsors of the league or the television broadcast? What is the legal basis for the NFL’s position on this matter? Is it possible that the NFL is wrong? (Spoiler alert: YES!)

Clark's post is worth a read for anyone with even a passing curiosity about the use of "Big Game" (or whatever euphemism you want to say). He outlines the concept of Fair Use as it is relevant to the NFL/Super Bowl, explores the common ways that business attempt to avoid the NFL's absurd cease-and-desist campaign, and analyzes the likely legal implications for a business that decided to tell the NFL to pound sand.

Ultimately, Clark concludes:

The NFL may rightly own the trademark for SUPER BOWL, but that trademark does not give the NFL the unfettered right to exclude all potential uses of the term, especially nominal or descriptive uses that do not threaten the ability of the mark to operate as a source-identifier of the NFL’s goods and services. I can only hope one day that this hypothetical sports bar becomes a reality and the NFL is subsequently taken to task for its bullying ways.

In the interim, I will continue to watch and discuss the Super Bowl with the comfort of knowing that my use of certain terms is safely protected by doctrines of fair use.

Seriously...great stuff here. Read it, people.