December 9, 2025

The NFL’s Aggressive Trademark Protection: Not so Super?

By Emily Poler

I’m not much of a sports fan (although I confess to curiosity about the new Professional Women’s Hockey League), so it’s hardly surprising I never pay attention to ads tied into the Super Bowl. Sure, I’ll go to a party on the day to nibble nachos, chat with similarly blasé guests and watch the halftime show (I’m extra excited for Bad Bunny this season), but that’s pretty much where my interest starts and ends.

So, of course, it took something related to trademarks to make me pay attention to the Super Bowl. I’m not entirely sure how it came up, but I think I was taking an online continuing legal education course and the speaker commented on the fact that brands advertising events or products related to the Super Bowl always use phrases like “The Big Game” instead of “Super Bowl,” because they’re afraid of invoking the wrath of the NFL. I was like, “wait, what?”

While any diehard football fan might be well aware that the words Super Bowl are trademarked, I always assumed (if I ever thought about it at all) that others could use those words to describe the event even if the words Super Bowl are covered by U.S. Trademark Registration No. 0882283, filed by NFL Properties, LLC in 1969. (The NFL also has copyrights to the broadcast of the event, and all sorts of other issues arise from there, but that’s a story for another day.) The NFL also has registered trademarks for “Monday Night Football,” “Super Sunday,” “Gameday,” and inexplicably (at least to me) “Extra Points.” And, it turns out, the NFL is extremely aggressive about pursuing any unauthorized use of these trademarks.

As a reminder for the non-trademark cognoscenti reading this, trademarks exist to ensure that consumers aren’t confused about the source of goods or services. In the case of the NFL, that means its trademarks ensure that only goods or services affiliated with the NFL are advertised and sold using its registered branding. Or, looking at it from a consumer’s viewpoint, trademarks are there to indicate that when they buy something that says “Super Bowl,” it’s actually affiliated with the NFL and its “Spectacular Sports Event.” 

There are a couple of exceptions to this rule. One is called descriptive fair use. That allows someone to use another’s trademark to describe their product. So, for example, CVS can sell generic ibuprofen with a line that says compare this to Advil. 

The other big exception is nominative fair use. This doctrine allows people to use a trademark belonging to another where (1) it would be hard to identify the product or service without using the trademark, (2) the person using another’s trademark only uses as much of the trademark as is necessary to identify the product or service, and (3) there’s nothing to suggest that the person using someone else’s trademark is being endorsed by the trademark owner. So, to stick with the sports world, this doctrine allows me (or, more realistically, someone else) to invite people over to watch a Yankees’ game on TV rather than “a baseball game played by a team from the Bronx bedecked in pinstriped uniforms,” so long as I’m not saying or implying that the Yankees sponsored the event or go completely overboard with logos in my Evite (which is, naturally, a trademark of its own). And, of course, news outlets and commentators (like this blog!) can legally use the phrase “Super Bowl” when referencing the “Magnificent Melee.”

As mentioned earlier, the NFL is known for its diligence in sending out cease and desist letters to just about anyone who dares use any of its trademarks without permission, even churches and Mom and Pop businesses. Why? Selling official sponsorships is a huge part of the NFL’s  business. Apple Music, for example, pays $50 million per year to be the official sponsor of the Super Bowl halftime show; other official Super Bowl sponsors have included big names like Verizon, Anheuser-Busch, and McDonalds. In theory, if the NFL let Vito’s Pizzeria on Main Street in Racine get away with advertising its “Super Bowl Stuffed Crust Special” without permission, it would devalue these huge money partnerships. 

What’s more, if companies don’t police the use of their trademarks, they can lose them if they are so widely used as to become generic. For example, “aspirin” used to be a trademark but because Bayer didn’t work to prevent its use as a generic word for pain reliever, Bayer lost its trademark protection. Since the NFL intercepts violations so aggressively, no one can try using “Super Bowl” and then argue in court that the phrase has been allowed to become generic. 

The NFL is also probably so combative because it can be. Quite frankly, if the bar down the street gets a cease and desist letter from the NFL, it’s just going to stop using whatever trademarks are at issue and say sorry. Who would have the balls to go up against one of America’s richest and most powerful institutions and its army of lawyers? (If you do own that bar and you’re up for a fight, call me! I’m here for it.)

All that said, there are some instances indicating that in light of, at very least, nominative fair use, the NFL’s rights might not be as broad as it has pretty consistently maintained. For example, in the show Ballers, HBO extensively used NFL team names and logos without the NFL’s consent and, as far as I know, the NFL never sent a cease and desist or sued HBO. The same is true of a 2015 film called Concussion. Maybe because the league didn’t want to draw attention to these high-profile media properties and their focus on the darker side of football (like chronic traumatic encephalopathy)? Or maybe because they didn’t want to go up against an opposing party where they might lose, thus creating a negative precedent.

With tens of billions of dollars in revenue generated every year, the NFL has the resources to be exceedingly — even excessively — diligent in its pursuit of maintaining an elite brand. Its profits are enormous and ever-increasing, and their strategy is seemingly successful, but of course, one has to wonder if the danger of being known as an entity that uses its power against the bar down the street or a local church, is really a winning PR strategy in the long term. 

In the meantime, bring on Bad Bunny and, maybe, a Superb Owl party?