Over the last decade, we’ve covered Super Bowl topics, it’s that time of year again!

We’ve probed the NFL’s overzealous activities and asked hard fair use questions.

And, with Big Game LII in our backyard, we had a front row ambush marketing seat.

With digital marketing, that front row seat can be anywhere your iPhone takes you:

The top half of the email advertisement from Tuesday, landing in my inbox (shown above), seems to have a better argument for a nominative fair use defense than the the bottom half of the same ad (shown below), agree?

Assuming Birch’s is not an actual licensee, seems to me a rather difficult argument that use of the Super Bowl LIII logo is really fair and necessary for communicating truthfully, but, what say you?

UPDATE:

Hot off the email press and inbox from yesterday, here is another Super Bowl ambush, note their favoring of “Big Game” over “Super Bowl”:

So, they may have avoided the NFL’s wrath, but what about the Patriots and Rams logos on the helmets, fair use, or not, friends?

Here’s to looking at you again, James!

  • James Mahoney

    ‘Tis easier to ask forgiveness than permission. Birch may get a C&D notification, but likely not before the game. So they score at least a field goal with this, whereas it would have been a safety if they’d asked permission.

    • stevebaird

      James, you can afford to be pretty laid back about such things, coming from Boston, with your home team in the “Big Game” 9 times since the Belichick/Brady duo, right?

      • James Mahoney

        Aww, shucks, Steve. We’re just a bunch of guys who got lucky.

        (I’d mention that we’re lucky in three major league sports, but quintessential Boston modesty prevents that.)

  • James Mahoney

    Well, clearly that’s not a Patriots’ helmet; color’s all wrong. So my guess is it’s some local high school gear that an admirer pasted the flying Elvis on. Can’t knock the kid for wanting to be with a winner, now, can we?