It’s 9:30 a.m. on Saturday— the day before the NFL’s 56th Super Bowl. BetMGM, which is one of the seven sportsbooks currently approved 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 in the world is going on here?
The National Football League, not unsurprisingly, owns several trademarks on the term “Super Bowl” that date back to 1968—the year after the first game was played. These trademarks include, specifically, a trademark on the term “Super Bowl” in Category 41 for the game itself, and one in category IC 009, which is the category that broadly speaking includes computer apps.
However, possessing trademark rights over a given mark does not typically prevent another’s general use of a term in a purely descriptive sense, such as to reference a sporting event for informational purposes. Rather, trademark law at its core is primarily intended to prevent others from using trademarked terms in a manner that creates consumer confusion as to the source or identity of goods or services.
Thus, creating a betting app called “Super Bowl” would almost certainly infringe upon the NFL’s mark and allow the NFL to sue for statutory damages. But simply inviting users to come to a differently named sports betting site to “bet on the winner of the NFL’s Super Bowl LVI” would not likely seem to create such confusion—at least in many cases.
Moreover, if a sports betting site, in addition to using its own branded name, were to include a small disclaimer below the use of the word “Super Bowl” to clarify its lack of affiliation with the NFL, the risk of trademark liability for using the term “Super Bowl” would seem to become even smaller still. That is relatively well settled under the principle of “nominative fair use.”
So why, then, are so many large online sports betting companies suddenly afraid of using the term “Super Bowl,” even in a manner that arguably enjoys legal protection?
First, there may be the desire to avoid the risk of trademark litigation, as even defending an unsuccessful lawsuit costs a business time and money.
Some of these companies may also desire to partner with the NFL on certain projects down the road. It’s never a good idea to anger a business that you hope one day to work with as a partner. This is perhaps just common sense.
Finally, there is the most concerning possibility from a law and ethics perspective: that certain states, such as New York, have elevated the power of the NFL to enforce their marks beyond the statutorily intended level of trademark protection by granting sports leagues monopolies over the sourcing of game-related data to online betting providers through so-called “sports data mandates.” 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 purported non-compliance with league demands.
Further, leagues such as the NFL may now even attempt to place language in data licensing contracts to explicitly prohibit certain gaming operators from using the term “Super Bowl”—creating the possibility certain use by sports betting operators that might not violate trademark law could still amount to a breach of a term in their data services contract.
Of course, none of these three explanations seem to support the broad notion that using the term “Super Bowl” to describe a sports betting opportunity would amount to a trademark law violation. Still, it provides good context as to why a sports betting site might not want to press its luck with the use of the term—especially where their users reasonably know exactly what they mean when they write “The Big Game LVI.”
Marc Edelman (Marc@MarcEdelman.com) is a Professor of Law at Baruch College’s Zicklin School of Business, Sports Ethics Director of the Robert Zicklin Center on Corporate Integrity, and the founder of Edelman Law. He is the author of “A Short Treatise on Sports Gambling” and “Monopolizing 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.