It’s 9:30 a.m. on Saturday, February 12, 2022, the day before the fifty-sixth NFL Super Bowl. BetMGM, which is one of seven sportsbooks currently licensed to offer sports betting in New York State, is actively soliciting bets on tomorrow’s game. But the words “Super Bowl” are nowhere to be found on the company’s app. Instead, BetMGM repeatedly describes the game as “The Big Game LVI”.
What the hell is going on here?
The National Football League, unsurprisingly, has several trademarks on the term “Super Bowl”, dating back to 1968 – the year after the first game. These marks notably include a mark on the term “Super Bowl” in category 41 for the game itself, and one in category IC 009, which is the category which, in the broad sense, includes computer applications.
However, owning trademark rights to a given mark does not generally preclude general use of a term by a third party in a purely descriptive sense, for example to refer to a sporting event for promotional purposes. information. On the contrary, trademark law primarily aims to prevent others from using trademark terms in a way that confuses the consumer as to the source or identity of goods or services.
So creating a betting app called “Super Bowl” would almost certainly damage the NFL’s brand and allow the NFL to sue for damages. But simply telling users to go to a sports betting site with a different name to “bet on the winner of NFL Super Bowl LVI” wouldn’t appear to create such confusion, at least in many cases. .
Also, if a sports betting site, in addition to using its own brand name, were to include a small disclaimer under the use of the word “Super Bowl” to clarify its lack of affiliation with the NFL , the risk of brand liability for using the term “Super Bowl” would appear to become even smaller. This is relatively well established under the principle of “nominative fair use”.
So why are so many large online sports betting companies suddenly afraid to use the term “Super Bowl,” even in a way that arguably enjoys legal protection? First, there may be a desire to avoid the risk of trademark litigation, because even defending against an unsuccessful lawsuit costs a business time and money.
Then, then maybe also the desire of some of these companies to partner with the NFL on certain projects. It’s never a good idea to anger a company that you hope to one day work with as a partner. Maybe it just finally makes sense.
But finally, there is the most disturbing possibility from a legal and ethical standpoint – that some states, like New York State, have elevated the power of the NFL to enforce their brands beyond the level statutory protection by granting sports leagues a monopoly on providing gaming-related data to online betting providers through so-called “sports data warrants”. Arguably, by requiring sports betting providers to use league-sanctioned data, these companies are now at the mercy of the league shutting down their data for alleged non-compliance with league requirements.
Additionally, leagues such as the NFL may now even attempt to place language in data license agreements to explicitly prohibit certain gaming operators from using the term “Super Bowl” – creating the possibility that some use by sports betting operators who may not be in breach of trademark law could still constitute a breach of a term of their data services agreement.
Of course, none of these three explanations seem to support the general idea that using the term “Super Bowl” to describe a sports betting opportunity would amount to a violation of trademark law. Nonetheless, it provides good context as to why a sports betting site might not want to take a chance with the use of the term – especially when their users reasonably know exactly what they mean when they write “The Big Game LVI”.
Marc Edelman ([email protected]) is a professor of law at the Zicklin School of Business at Baruch College, director of sports ethics at the Robert Zicklin Center on Corporate Integrity, and founder of Edelman’s Law. He is the author of “A short treatise on the sports game” and “Monopolize sports data.”
Nothing in this article is intended to serve as legal advice. The author has no legal affiliation with any company referenced by name in this article.