(By Shawn M. Yesner) On Sunday, February 3, many of us will be watching the 53rd annual football contest featuring the National Football League professional football team from Foxborough, Massachusetts, versus the National Football League professional team from Los Angeles, California.
Why can’t I just say, “I’m going to watch The New England Patriots versus the Los Angeles Rams in Super Bowl LIII?” I can. Although the National Football League has a trademark on the term, the doctrine of Fair Use (which is using copyrighted material without permission for certain purposes) has a limited application, nominative fair use, when dealing with trademarks if: (1) the mark is not readily identifiable in another way; (2) the mark is used reasonably; and (3) there is nothing to suggest any connection or sponsorship between your use and the mark.
As you’re preparing your upcoming podcast episodes, can you talk about “The Big Game?” Sure! As long as you follow the guidelines above. For example:
- You can reference the “Super Bowl,” “Patriots,” or “Rams” if that is the only way people know what game you’re talking about.
- Don’t use the mark repeatedly or unnecessarily. Having the mark in the title of your show, multiple times in the show notes, as a tag for SEO purposes, promoted on social media, and with multiple references in the episode, may cross the line and draw the attention of the NFL’s attorneys.
- Don’t promote your podcast as “the only place to hear the inside scoop of what’s happening at” the big game, or worse, “The Official Podcast of” the game or either of the teams.
- If you use your show to sell a product, like a course, avoid the phrase in connection with sales of your product – unless you want to receive a nice letter from an attorney representing the league!
- Don’t use the game or either of the teams in the game to promote an upcoming episode of your podcast.
You may also want to avoid “Super Bowl” giveaway or contest advertisements in your show, and do not use your show to invite over a group of people if you’re going to charge them to watch the game (which would violate the NFL’s copyright on the game itself).
If your show discusses sports or football in general, then you need to be careful that you’re not doing anything to suggest a link between your show and the game, unless you’ve paid the money and obtained the necessary authorization. However, if you want to talk to your guest, co-host, or audience about their “Super Bowl” plans, that would be okay; or ask them their predictions for the game, or how the teams’ offenses stack up against the respective defenses, or which team might win the coin toss, score first, etc.
Remember, advertisers pay millions of dollars to the National Football League to be associated with the game. The NFL will aggressively protect its marks for the game itself, the teams in the league and other things (e.g. “Pro Bowl”). They do this to protect their ownership and use of those marks, and also to protect the premiums they can charge to advertisers. When some beer company will pay the league millions of dollars to advertise, I can guarantee (which is something attorneys rarely do) that the league will spend a few thousand to sue you for using their marks without permission.
Shawn M. Yesner is the founder and owner of Yesner Law, P.L., and an attorney in Tampa, FL. Shawn hosts The Crushing Debt podcast, which supports the purpose of the law firm – to eliminate financial bullies from your life. He can be reached at Shawn@YesnerLaw.com