A Game By Any Other Name: Trademark Infringement in Business Marketing

[This article originally appeared in Main Street Concord’s Newsletter, 2008.]

Super Bowl fans (and business operators) beware! The Patriots’ shocking loss to the New York Giants may not be the only devastating fallout from the game. Your use of the words “Super Bowl” could find you on the losing end of the season as well.

The term Super Bowl is a registered trademark of the National Football League. A trademark can be a word, name, symbol, or device that distinguishes a particular company as the source of a service or product. Trademarks are governed by both state and federal law, but the federal law known as the Latham Act (15 U.S.C. §§1051, et seq.) is the main source of trademark regulation. The Latham Act protects those parties who have registered a trademark, or who have otherwise acquired rights that qualify for protection, from trademark infringement. Trademark infringement exists when a party uses another party’s trademark in connection with the promotion of an event or service or the sale of goods in a manner that is likely to confuse consumers as to the true source or maker of the event, service, or good.

Trademark owners, such as the NFL, have a right to control the use and reputation of their property and can sue another party for the unauthorized and unlicensed use of trademarked terms such as the “Super Bowl,” “National Football League,” or any team name as well as the Super Bowl and NFL logos. With March Madness upon us, the same holds true with respect to the National Collegiate Athletic Association and its trademark rights in phrases like “March Madness,” “Elite Eight,” “Final Four,” and “NCAA Championships.” Use of these terms or NCAA logos to promote and market your business can give rise to claims of infringement and expose you to costly litigation.

Coach’s advice: Get creative. Use of “The Big Game” in reference to the Super Bowl or “The Big Basketball Match-Up” to describe the NCAA Championships is permitted. You won’t, however, get a mulligan for cashing in on “The Masters” trademark, just as you’ll be skating on thin ice if you capitalize on the “Stanley Cup” designation. To protect your business from trademark violations, visit the U.S. Patent and Trademark Office website at https://www.uspto.gov/index.html to search for pending, registered, and terminated trademarks.