For decades, the big game has been television advertising’s darling. It draws in record or near-record ratings each year. That makes it a stage in high demand—brands are even willing to spend $4 million for 30 seconds on screen.
But despite its widespread recognition and cultural significance, you rarely hear television advertisers mention the event by name. People are obsessing over the term at home—but advertisers almost never say it. The reason is simple and reasonably well documented: the NFL owns the trademark to “Super Bowl,” and is particularly aggressive about enforcing compliant usage—especially in advertising.
The logic behind this makes sense. By reserving the right to the trademark, the NFL can charge more for certain “official” sponsorships (e.g. “Official Beer of the Super Bowl”). As it pertains to television advertising during the game, the protocol seems pretty clear. Samsung’s ad this year even poked fun at the subject.
How Digital Changes the Game
Recently, the Super Bowl has found its way into online marketing channels. The magnitude of the event, combined with the level of investment in TV advertising that brands are making, has led marketers to start connecting TV and online campaigns.
The trend started with social media. Ads from Super Bowls of the past few years have featured Twitter hashtags and links to Facebook pages. But this year, something very interesting happened. Realizing that the TV ads themselves are a form of entertainment, brands began linking viewers to them through paid search. During the game and in the weeks following it, search engine queries for “Super Bowl ad” populated with many paid links pointing to videos of brands’ TV spots.
So, what does this all have to do with the Super Bowl trademark? Well, once we noticed that brands were riding the post-game wave in paid search, we figured there was a decent chance of seeing some trademark violations. Compared to how established the NFL’s regulations are for TV usage, online is a wild west of sorts.
Monitoring Trademarks Online: Getting Past the Broadcast Mindset
Generally, it would be pretty clear to the NFL if an advertiser violated their policy in TV advertising. Since TV is a broadcast medium, everyone who’s watching—at least within a given market—sees the same things.
But online, things are very different. Ads only come up in response to people’s queries. On top of that, advertisers have more flexibility to geo-target specific places, choose when their ads run, change ads on the fly, and even end an entire campaign with the push of a button.
What We Found
With that in mind, we set up some policies with our paid search monitoring technology. Here’s one of the first things we found:
We spotted this particular ad running on AOL, but noticed similar versions both on Google and Ask.
Interestingly, in this case the advertiser actually gives a hat tip to the Super Bowl trademark by appending the ™ symbol. Why might one do this? Well, let’s remember that certain advertisers pay to be official sponsors of the Super Bowl, which allows them to use the trademark in advertising. However, some quick research on the subject doesn’t suggest any such relationship exists between the advertiser and the NFL.
It’s more likely that one of two things is happening here: A) the NFL granted special permission to the advertiser for this usage, or B) the advertiser was unsure of how the trademark policy applied to paid search. Of the two, we think option B is the most likely. The advertiser probably wanted to use the term “Super Bowl” as a way of encouraging click-through. But at the same time, they also wanted to avoid offending the NFL. This ad seems like an effort to cover both bases.
Other advertisers didn’t use the trademark in such obvious places. Here’s another, more hidden, example that we found:
Working around the phrase in its ad copy by offering “Big Game” as a substitute, this ad goes on to place “Super Bowl” at the end of its display URL. This actually presents a rather interesting question: is the display URL subject to the same legal scrutiny as the ad copy? Furthermore, are the subsections within a domain subject to trademark law?
Interestingly, this URL actually redirects to a different page within the site. The page includes all the Super Bowl content you would expect from clicking the ad—but has a new vanity URL. On some level, it would seem that the advertiser in question is trying to hide its use of the trademark. It certainly remains possible that the NFL granted permission. But it’s not terribly likely.
Broad Matching on “Super Bowl”
Most of our monitoring was based on searches for specific brands’ ads. For example, if Nike was a known advertiser at the Super Bowl, a sample search query would be “Nike Super Bowl” or “Nike Super Bowl ad.”
But our data showed multiple brands appearing for our very brand-specific searches:
Clearly, these two ads are from very different brands. One makes cars, the other makes beer. They don't have much in common outside of the fact that they both advertise during the Super Bowl.
Together, these indicate that certain advertisers were broad matching. More specifically, broad matching on the term “Super Bowl.” Now, the NFL may have no issue with that at all. But ultimately it’s their trademark and they may want to know. Perhaps some year they release an NFL Films: the Super Bowl collection and want to promote it around the time of the Super Bowl (when it could be more likely to sell). In that case, they probably wouldn’t welcome so much competition from their partners.
Fortunately, our monitoring showed a low likelihood of ad hijacks. That’s some good news, both for advertisers and for the NFL. However, we wouldn’t be surprised to find that or similar practices in the future, given the popularity of the Super Bowl and its recent foray into paid search.
We have also reached out to the NFL with the data we collected.