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Famous trademarks, including the mark “Super Bowl” covered by multiple NFL trademark registrations, are protectable not only against actual infringement, but also against dilution.

Posted on February 4, 2016

Each year in first half of February, a groundhog in Punxsutawney, the NFL, and a pudgy, arrow-shooting cherub wax prominent in media reports and the minds of consumers.  For at least the NFL, enforcement of registered trademarks also peaks.

The NFL’s annual surge in enforcement activities has given rise to the euphemism “Big Game,” a widely embraced workaround for businesses wanting to avoid unwelcome correspondence from the NFL.  Famous trademarks, including the mark “Super Bowl” covered by multiple NFL trademark registrations, are protectable not only against actual infringement (consumer confusion as to source, sponsorship or affiliation), but also against dilution (uses that lessen the distinctiveness of a mark). 

For that reason, the NFL polices a wide range of uses of the name “Super Bowl” during early February.  By unlicensed use of “Super Bowl” in their advertising, businesses may not literally cause purchasers to reasonably believe that a particular 2 liter bottle of soda, television, or batch of chicken wings is actually “NFL approved.”  On the other hand, the use of that mark can be said to diminish the distinctiveness of the term, or at least to provide an unfair advantage over businesses that paid for licensing.

Restaurants and bars, grocery stores and retail outlets, beer distributors and fast food chains all seek to capitalize on the national attention created by the football season’s culminating event.  Some pay for the privilege of association with the event – as much as $5 million for a 30 second ad.  Other businesses pay nothing, but still wish to leverage the event in boosting their sales.  In the latter cases, the NFL seeks to protect both its own interests and the interests of its licensees. 

As in many things, timing is a factor in commercial exploitation of ephemeral events.  For that reason, the NFL has rational arguments for zealous enforcement of intellectual property rights during the days leading up to and including the “Big Game.”  The good news, however, is that both the groundhog and the cherub are far more lax.