Around this time of year, many advertisers start talking about “The Big Game” or other elaborate phrases to refer to a certain sporting event that has great prominence. The reason that many advertisers resort to a variety of suggestive phrases instead of using the proper name centers on trademark law and its enforcement.
Trademark law gives trademark holders a certain amount of control over the use of their name. In fact, if a trademark holder fails to exercise adequate control over their name the trademark holder could lose the ability to enforce their trademark due to the term becoming generic or be accused of abandoning their mark. Among other trademarks, the NFL has registered a certain well-known phrase which sounds like “superb owl”[1] under several different serial numbers for various goods and services, including serial number 78688906.
The NFL enforces its trademark in this phrase aggressively. Some of the uses for which the NFL sends out cease and desist letters might be covered under the doctrine of nominative fair use for trademarks, but many who would want to use the phrase prefer to avoid the expense of testing that in court. So, most companies that do not have a sponsorship or other licensing agreement with the NFL chose to use more creative phrasing instead.
[1] Comedian Stephen Colbert helped popularize the reference to “Superb Owl” and the NFL filed an opposition when The Night Run Inc attempted to trademark the phrase “Superb Owl.”
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