There is a reason that there are so many commercials airing right now that reference “the Big Game.” It is because the NFL has an aggressive trademark enforcement policy with respect to the trademark Super Bowl. In a purely academic sense, all uses of the term Super Bowl should not be prohibited. Even certain commercial uses may constitute a nominative fair use. In the world of social media, one thing we often forget is that to amount to trademark infringement, the use of another’s trademark must be likely to cause confusion as to source or affiliation. I suspect that there are a variety of uses of the term Super Bowl that are not likely to cause confusion. But the safest approach, and the approach that most appear to take, is to use “the Big Game,” or some other synonym for Super Bowl, in commercial oriented posts and advertisements.
The same is true for team names, although the context must be kept in mind. A purely gratuitous use of a team name that has no business relevance to the poster is less likely to be considered a permissible use. On the other hand, a use that has some relevance to the poster, might be viewed more favorably and actually less likely to cause confusion.Arby’s’ tweet that it wants its hat back from Pharrell (Pharrell Williams) is a good example. Although that Tweet implicates the right of publicity, to the extent Pharrell Williams has trademark rights in his name, that type of use is unlikely to cause consumers, one would think, to believe that Pharrell Williams endorses Arby’s. While humor is not a defense, the humorous and relevant nature of that Tweet is unlikely to cause confusion.
While retweets are less risky, again context must be considered. Twitter users must ask, is the retweeting, either due to the text included with the retweet or because of a lack of clarifying text, likely to cause confusion?
And what about hashtags? A business creating a hashtag with someone else’s brand is not a good idea. But if a hashtag exists and a business wants to join the conversation (in a manner that is not likely to cause confusion as to source or affiliation), that should be permitted.
Some of my comments were shared in an IP Law 360 article, “On Super Bowl Sunday, Social Media Trademark Risks Abound.”