Brands pay for the privilege of uttering the phrase “Super Bowl”

The Big Game has come once again, which you might have been expecting, depending on how you organize your mind and whether you understand why the Big Game is sometimes in January and sometimes in February.

If you weren’t expecting the Big Game: The Big Game is today, at 6:30 pm Eastern, and will most likely last somewhere between three and a half and four hours, even though during the Big Game, only about 12 of those minutes will be spent watching football actually being played. Most of the Big Game will be advertisements, men talking while surrounded by various brand logos, and a sponsored halftime show. Billions of dollars will change hands during the Big Game, and, by the way, why do advertisements and radio hosts and social media accounts run by brands constantly refer to the Super Bowl as “the Big Game?”

Simple: They cannot say “the Super Bowl” unless they pay for that privilege, because it is a registered NFL trademark and has been since 1969. The league also owns the term “Super Sunday,” all the team names, logos, and uniform designs, and the Super Bowl shield graphic.

It has been extremely aggressive about protecting its trademarks, and would say that it has to be: If it doesn’t prevent people from using the game’s logo or name for free, how can it charge official sponsors millions of dollars to use it? Anheuser-Busch spends around $250 million a year to be the only alcohol company allowed to advertise nationally during the game, and to use the various Super Bowl trademarks on its products. It’s not going to be thrilled if the NFL does nothing to protect its investment.

This is why the NFL frequently sues over “counterfeit goods” that use the term or logo without permission, sends cease-and-desist letters to churches that advertise Super Bowl parties, and had a brief beef with porn actress Jenna Jameson over a Super Bowl-themed lingerie show. For years, it even insisted that watch parties hosted by any kind of organization could not use televisions larger than 55 inches. (It loosened up on that point after all TVs got enormous.)

According to the Google Search box that shows top related searches, Super Bowl watchers also ask, “Can I say Super Bowl?”

Um. Yes, you can. Your use of the term is, first of all, not for profit, and second of all, falls under “nominative fair use.” This is an exemption to trademark infringement which grants that you can use a trademarked term whenever it’s the most accurate or “informative” way to describe something.

The rule was established by the Ninth Circuit federal court of appeals in California in 1992, when the boy band New Kids on the Block tried to sue a magazine that had been operating a poll via a 1-900 number, encouraging people to call in and vote on which one of them was the hottest. The New Kids had their own 1-900 number at which you could pay to talk to them, so they argued there was possible confusion about the source of the product; that consumer confusion is specifically what trademark is meant to protect against. (Imagine if Harry Styles had a 1-900 number in 2014! It would have been chaos!)

Anyway, they lost, as the two phone lines were clearly different things and there was no way for the magazine to describe “New Kids on the Block” without saying “New Kids on the Block.”

You can say Super Bowl. You can say Super Sunday. You can sell anything under the name “Trav Proposes at Halftime Day” because it’s owned by no one. And though a man from Florida tried to trademark the term “Souper Bowl” in 2007, a Michigan woman with several criminal aliases tried to get “Super Bol” in 2009, and a Colorado man filed for “Super Bowlz” in 2014, all failed. So you can do whatever you want with those as well.

Your local small business can actually use any of these terms too. The NFL is a multibillion-dollar organization with a storied history of nefarious litigation, so chances are that fighting it in court over this matter is a waste of time and money and no one will bother, but technically, bars and restaurants that want to host Super Bowl viewing parties are within their rights to do so. As long as they don’t imply that they are in some way official sponsors of the Super Bowl, or use any logos, they’re just describing someone else’s trademarked event as accurately as possible, and saying that they’re going to spend a day enjoying it.

The NFL might argue that bars and restaurants can just as easily use a term like “the Big Game” to convey the same meaning. But since the league also tried to trademark “the Big Game” in 2006, it’s sort of undercut its own argument there — are we supposed to just come up with increasingly cutesy and vague ways to refer to a sporting event watched by one in three people in the country every year?

Stephen Colbert’s long-running “Superb Owl” bit on The Colbert Report was probably unnecessary too; parent company Viacom was just too skittish about evoking the NFL’s wrath to let him use the real term.

But there is a wrath that is greater even than the NFL’s — (God’s) — as was implied by pastor John D. Newland of Fall Creek Baptist Church in Indianapolis, who received a cease-and-desist letter from the NFL in 2008 because of his church’s plan to charge $3 admission to a widely publicized Super Bowl party and thereby woo a new batch of young parishioners. He responded, saying, “The NFL thinks they’re invincible. Well, they’re not. Nobody is invincible and anyone who thinks they are, they’ll come tumbling down.”

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