NEW YORK (TheStreet) — Entrepreneur Paul King, CEO of Hercules Networks and the creator of the goCharge automated mobile-device charger, is using his product’s participation in the Super Bowl to spread the word about his growing business.
King, who launched the product in 2008, says he will be sending an email blast to clients and prospective clients noting the inclusion of a kiosk within AT&T’s(T) designated area at the Bowl.
“We are coming up with a flier that turns goCharge into a cartoon character and it says ‘goCharge is at the Super Bowl making sure you’re charged up during the Big Game,'” King writes in an email to TheStreet.
Note that: “Big Game.” In addition to being an example of how smaller businesses get in on Super Bowl promotion action, King’s flier hints at a way not to run afoul of National Football League lawyers on the lookout for trademark infringement of one of the most well-known events in the U.S.
Businesses that are most wary of litigation could advertise using only a synonym such as “Big Game” instead of risking NFL ire with “Super Bowl.”
“The Super Bowl is obviously a well-known trademark, and the NFL is rather aggressive in enforcing it with businesses large and small, local or national. It is a very important asset to them,” says attorney Erik Pelton, who has helped many small-business owners with trademark disputes. While most trademark enforcement takes place near the game itself, the NFL has “an army of lawyers and has invested a lot of money in obtaining exclusive licenses for all types of products and services. And therefore they invest a lot of money in guarding those trademarks.”
At the bottom of the NFL website is a disclaimer that the acronym and shield design are “registered trademarks of the National Football League. The team names, logos and uniform designs are registered trademarks of the teams indicated.” (Business owners can search the U.S. Patent and Trademark Office website to find further trademarks.)
But it isn’t just “Super Bowl” and team names that are protected. Even slogans and catchphrases such as “cheesehead,” meaning a Green Bay Packers fan, is a registered trademark, Pelton says.
Still, there is a difference between what would get businesses in actual legal trouble and what would get them in trouble based on the NFL guidelines, says trademark and entertainment attorney Ken Basin, of Greenberg Glusker Fields Claman & Machtinger in Los Angeles.
The NFL aggressively sends out cease-and-desist letters if “Super Bowl” is used without permission in a commercial context, but retailers aren’t necessarily in legal muck if they do use the term, Basin says.
Individuals and businesses are protected under the First Amendment in what’s called “nominative fair use,” in which a trademark is allowed to be used if it describes a phrase and lacks commercial intent, Basin says. For instance, an electronics store ad could suggest to customers that they “Come get your TV before the Super Bowl,” because it is describing an event.
There are also creative ways small businesses can refer to, uh, that event on Sunday without using trademarks, experts say.
David Johnson, CEO of Strategic Vision, a publicity and marketing firm that works with small companies, says he often advises clients on how to maximise potential with big events such as the Super Bowl.
The trick, he says, is to come up with a clever play on words so consumers clearly understand that the ad is in relation to the Super Bowl — but never use the exact terms.
Consumers seeing the word “super” in an advertisement will consider it a tie-in to the Super Bowl, for example, even though the business is not using the Super Bowl logo.
“It does work,” Johnson says.
People at businesses such as financial or technical services firms can use social media to discuss the Super Bowl and its advertisements or run contests, he adds, because “right now social media is still considered media in that it’s protected by the First Amendment. Right now it’s a way to promote [your firm] without running afoul of the trademark laws.”
“We have [clients] go on and talk about the Super Bowl commercials. They are actually talking about the Super Bowl but not tied in to [their own] advertising,” Johnson says.
When crafting the goCharge promotion, King says, he did not contact the NFL for permission.
“We didn’t think we were saying anything controversial or untrue. We’re basically saying we’re going to be there for you at the Super Bowl,” he says.
And that may be the best lesson goCharge can provide: For any event, business or known trademark such as “Super Bowl,” think about what you’re doing before you do it.
“Use common sense. Think about what the NFL’s interests are and see how others creatively get around using the brand names of the NFL. It is entirely possible to have a promotion that fairly clearly references the Super Bowl but doesn’t step on the NFL’s toes,” Pelton says. “Basically the easiest thing to do is to avoid using team names, team logos and the phrase ‘The Super Bowl’ and any other trademarks that are protected.”
An NFL spokeswoman did not respond to an email sent by TheStreet. A representative of AT&T did not respond to a request for comment by email.
This article originally appeared at TheStreet.com.
To contact the writer of this article, click here: Laurie Kulikowski.
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