How do you advertise something without saying what it is you’re advertising?
That’s the catch for companies hoping to market hundreds of parties and concerts connected to Super Bowl 53. The Los Angeles Rams play the New England Patriots Sunday, Feb. 3 at Mercedes-Benz Stadium.
The Atlanta Super Bowl Host Committee expects 1 million people to attend the game and events this week. That includes 150,000 people from out of town.
Thanks to strict National Football League trademarks, businesses can’t market their products using the words “Super Bowl.”
Since first trademarking the phrase in 1969, the NFL has secured dozens of protected words and other content, including “Super Sunday,” “NFL,” “Monday Night Football,” “Thursday Night Football,” 32 team names, slogans, logos and theme music.
If you turn on an Atlanta radio or television station this week, you’re likely to hear advertisements calling it “the big game.” The NFL hasn’t been successful in trademarking the expression.
“Right now we're working on ways to say “the big game party” without saying “Super Bowl party,” said Myron “Magic” Gigger, Production Director for Urban One radio stations including Hot 107.9, Praise 102.5, ClassiX 102.9 and Magic 107.5.
He was at his studio computer editing a commercial for a Dungeon Family concert happening in Atlanta on Super Bowl Sunday. On the desk next to him was a reference sheet listing the trademarked words he couldn't allow on the radio.
In the commercial, rapper Rico Wade promoted the show without using any of the protected words.
“This is the official ‘Welcome to Atlanta’ party, Sunday February 3rd. Big Game Sunday. You know what it is. Everybody’s in town,“ said Wade over a background of music and sound effects.
“He mentioned a lot of things that were going on at the event. Then he said 'you know what it is,'" Gigger said. “‘You know what it is’ pretty much says it in sum. We’re having a great big Super Bowl party. Just come on out and have a good time.”
Urban One is an official partner for the NFL’s 20th Annual Super Bowl Gospel Celebration at Atlanta Symphony Hall. The company is allowed to use trademarked language exclusively in those promotions.
With dozens of different ads airing across four radio stations, avoiding trademark infringement is a juggling act for a broadcaster to navigate.
Urban One Regional Vice President Tim Davies has never received a cease and desist order.
“No, thank goodness I have not,” said Davies. “Because that's exactly what you don't want to have happen.”
A church in Indianapolis did get the NFL’s attention in 2007. When it promoted a big screen Super Bowl watch party, the NFL objected.
NFL Senior Vice President Anastasia Danias said the league aggressively protects trademarks to protect fans.
“I think any time you have advertisements that are likely to confuse our fans and impact our partners — that will detract from the authentic NFL experience that we want every fan to have and that every fan deserves," Danias said.
Safeguarding its trademarks also means the NFL can command hundreds of millions of dollars from sponsors like Hyundai, PepsiCo and Anheuser-Busch. Sponsorships start around $10 million.
It’s that kind of free marketplace that trademarks can help to thrive.
“Trademark protection is to carve out space for businesses to be creative and innovative and know that the brand that they're developing is protected and won’t be stolen by a competitor," said Atlanta media and First Amendment attorney Derek Bauer. Bauer helps radio and television stations avoid trademark infringement.
If trademarks and free enterprise illustrate the American spirit, so does the only exception to enforcing them.
Bauer said journalists can use trademarks in their reporting thanks to the First Amendment.