As college basketball play-off season and the Super Bowl approach, we thought it a good time to remind broadcasters about the trademark issues that often crop up in contests this time of year. Contests related to March Madness and the Super Bowl are popular, but the use of the proper names of these sporting events related to contests and promotions can pose problems for unwary broadcasters.
“March Madness” and the “Super Bowl” are both trademarked terms, registered to the National Collegiate Athletic Association (NCAA) and National Football League (NFL), respectively. The NCAA and NFL guard their trademarks fiercely, and have shown little hesitation in prosecuting individuals and businesses that use the trademarks without permission. The reason for such an aggressive stance is that the NCAA and NFL ask corporate sponsors to cough up large sums of money for the right to use the trademarked terms in advertising, and therefore don’t want non-sponsors using the terms to promote their businesses for free. As a result, anytime a broadcaster (or other business) uses the terms March Madness or Super Bowl for a promotional or commercial purpose, or suggests an affiliation with either event for which it hasn’t paid, the possibility of a lawsuit exists.
So how should a station conduct a contest centered around March Madness or the Super Bowl? The best approach is simply to avoid using the trademarked terms. Instead of “WXYZ’s March Madness Shoot-Out,” use the more generic “WXYZ’s College Basketball Tournament Shoot-Out.” Likewise, instead of “WXYZ’s Super Bowl Party Pack Contest,” try “WXYZ’s Big Game Party Pack Contest.” The key is to avoid any suggestion that the station is somehow affiliated with March Madness, the Super Bowl, the NCAA, or the NFL. And don’t worry, your listeners/viewers will still know what you’re referring to despite the use of an alternative term.
It’s particularly important to avoid the use of trademarked terms in the name of your contest and in any on-air or online promos you do for it. Using March Madness or Super Bowl in the name of your contest or in contest promos suggests that you are using the terms in a commercial sense and is most likely to draw the ire of the NCAA or NFL. That does not mean, however, that broadcasters have to avoid the trademarked terms entirely. When there is simply no better way to refer to a trademarked term, the term can be used under a trademark concept called “nominative fair use.” If, for example, your contest involves knowing the correct number of points each team scored after the first half, mentioning the Super Bowl in your contest rules – for example, “Watch the Super Bowl on February 1st and enter the correct number of points each team scored after the first half in the online form” – is unlikely to raise trademark issues. Even in contest rules, however, use of trademarked terms should be kept to an absolute minimum.
Finally, it’s important to note that the fact that the terms are trademarked doesn’t trump broadcasters’ First Amendment right to discuss March Madness and the Super Bowl – by name – as legitimate news events. Stations can certainly run stories about the games on the evening news, and anchors/DJs can discuss who they think will win, what happened during a game, etc. Trademarking does, however, curb stations’ ability to use the terms for a commercial purpose.