Super Bowl Advertising

Not all ambush marketing is created equal. Some can cross the line and create a likelihood of confusion as to sponsorship. Some falsely advertises. But, some is totally fair use and lawful.

This current promotional banner by La-Z-Boy is capitalizing on the excitement surrounding the upcoming Super Bowl weekend festivities, but without reasonable risk of heat from the NFL:

The same can be said for this Lunds & Byerlys in-store signage, with the local grocery chain having tiptoed around the issue entirely by using the Big Game code word instead:

Love the fine-print shout out to local darling, Surly’s Cynic Pale Ale, and the additional shout out to Surly’s “Over Rated” — and clever jab at West Coast IPAs — thankfully no risk of offending all the visiting fans from the East Coast for Super Bowl LII.

By the way, since the Home Team, won’t be playing, merely hosting, which team do you favor from the East Coast, the Philadelphia Eagles or the New England Patriots?

We continue to have Super Bowl LII on our minds here in the Twin Cities. It’s hard to avoid thinking about the upcoming “Big Game” with ads like these blanketing our skyway maze:

Turns out, everyone wants to have a little piece of the action in this upcoming event, even without the formality and cost associated with sponsorship, some call it ambush marketing:

Ambush marketing is not necessarily unlawful. It’s tricky, but I’m guessing the above ad may have cleared a legal review. No obvious conflicts with federally-registered rights, it appears.

Having said that, does this little guy change your view on things? Look familiar? It appears to be the same Wilson NFL Pee Wee Touchdown football without the name brands shown:

I’m thinking the JB Hudson ad employed a little airbrush strategy, or at least some strategic and highly precise palm expansion and placement in hiding the Wilson and NFL logos.

Actually, if so, it’s a good move, but will it be enough — especially given this website link — to avoid the aggressive NFL Super Bowl sponsorship police?

Who owns rights in TOUCHDOWN for footballs, if anyone? Anyone?

Neither Wilson nor the NFL appear to own federally-registered rights in TOUCHDOWN for footballs, but do common law rights exist?

If so, who owns them, the NFL or the maker of the NFL’s official game footballs, Wilson?

Moreover, did legal review consider non-verbal marks? What about the stitching design bordering the football laces? Non-traditional trademark? Functional? If not functional, fair use?

So much to think about as we anxiously await the Big Game in our own chilly backyard . . . .

We’ve come a long way from April 1, 2017, until now, with the steady drumbeat — and ads galore — in preparation for the upcoming Super Bowl LII in downtown Minneapolis:

As the NFL promotes use of the SBLII hashtag, it is preparing to do battle, or at least stand in the way, of another hashtag mark that the USPTO published for opposition: #HereWeGo.

Turns out, the NFL and the Pittsburgh Steelers appear to be concerned with Jennifer Menichini’s application to federally register #HereWeGo for a variety of clothing items.

I’m guessing that the Steelers believe they have standing to try and block registration of Menichini’s claimed mark based on the Steeler’s fight song, apparently called “Here We Go.”

Stay tuned to see whether this results in a formal trademark opposition, as the deadline for the NFL and Steelers is currently the day before Super Bowl LII: February 3, 2018.

Over the weekend, the Star Tribune continued the growing drum beat of understandable excitement for Super Bowl LII, as it steadily approaches U.S. Bank Stadium in Minneapolis.

The article also plays the typical NFL-enabling drum beat of caution against local businesses that might see fit to fairly and truthfully reference the Super Bowl in some commercial manner:

“From the NFL’s viewpoint, if businesses use the terms or other trademarks, it could appear like it is an official part of the Super Bowl or its related events, said Dolores DiBella, one of the lead intellectual property attorneys for the NFL.”

Perhaps the NFL would like to live in a world where no business can use the words “Super Bowl” without paying a fee; that isn’t the world we live in, especially given the growing judicial drum beat and emphasis on Free Speech and the First Amendment in the trademark/copyright worlds.

Nowhere in the article is there any acknowledgement that the NFL has long been accused of behaving as a trademark bully and overreaching with its valuable intellectual property rights.

The legal test for trademark infringement (likelihood of confusion) is not shown when a use “could appear like it is an official part of the Super Bowl or its related events,” the mere possibility is simply not enough, the likelihood of confusion must be probable.

Nowhere in the article is there any mention of trademark fair use; classic or nominative fair use. Nowhere is there any mention of Free Speech or the First Amendment. Even, this kind.

And, for those wondering whether the Super Bowl trademark might be famous and deserving of dilution protection, let’s not forget, the future of trademark dilution law is in question.

So, while it is true that not uttering the words “Super Bowl” will help a business play it safe and avoid all the fire and fury of the NFL, for those who are properly advised and have insurance coverage for advertising injury, that would be a very big game worth watching (or playing) too.

-Mark Prus, Principal, NameFlash Name Development

I was largely unimpressed with the crop of Super Bowl ads this year. It seemed to me that advertisers have chased “form over function” and have forgotten that when you spend $5 million for a 30-second ad you should probably sell some product to offset that cost. There were few ads that actually tried to communicate in a strategic way and present a compelling selling message for their brand.

Why have Super Bowl advertisers stopped selling their products?

Here is a prime example of how far we’ve fallen in just a year. Last year Christopher Walken used his unique communication style to decisively deliver the selling message of “don’t be beige, be bold” in a Kia commercial. This was a “Top 10” ad from Super Bowl 2016. Check it out.

https://youtu.be/AszjSIuDH-g

This year Christopher Walken again appeared in a Super Bowl ad, and again used his unique delivery style but this time he was reciting song lyrics in an ad for Bai. Many polls have indicated that this was the “Best Super Bowl Ad of 2017.” Check it out here.

https://youtu.be/2Di1kqa6fiE

The difference is amazing. Walken stayed in character in both ads. However, last year the message was a strategically focused argument for the new Kia Optima. This year the Bai ad reeked of borrowed interest and delivered absolutely no selling message for the brand. OK, there was that tagline that was on the screen for 5 seconds at the end that said “5 Calories, No Artificial Sweeteners, and Tastes Amazing” but that tagline has no relevance to the rest of the ad so it was clearly a band aid that was inserted to appease the Brand Manager.

The makers of Bai were no doubt hoping that using Christopher Walken and Justin Timberlake in an ad would break through the Super Bowl clutter. Alas, they were seduced by the cleverness of their brand name in relation to the “Bye, Bye, Bye” lyrics. What does the NSync song from 2000 have to do with an antioxidant beverage? The only possible outcome that would benefit the brand would be name recognition, which could be important if people do not know how to pronounce Bai.  But in the end, I suspect they were using borrowed interest because they apparently have nothing to say about why I should choose their brand.

I know some Super Bowl ads were making political statements or “feel good” messages to bolster corporate identity. But seriously, if you spend $5 million for a 30-second ad, shouldn’t you attempt to sell something? You can use other tools in the marketing toolbox to bolster your corporate image.

Here is an example. In 2002, Scripps Networks (the company behind HGTV and the Food Network) wanted to announce their newest media property Fine Living. They could have blown their budget on a Super Bowl ad but instead they created a PR event by building a tropical island in New York City’s Hudson River. The island was complete with sand, palm trees, a thatched-roof hut, hammock and hot tub. They towed the island in place at night for the big reveal on Columbus Day. One lucky couple (and their dog) got to enjoy the island for a few days. They romped in the sand, relaxed in the hot tub, and enjoyed the good life…Fine Living indeed! This event cost $300,000 to arrange and generated over $30 million in media exposure, or 100x the original investment.

Can the advertisers in this year’s Super Bowl claim that they got a 100x return on their investment (doing the math: $5 million for a 30-second ad means they would have to get a $500 million payback)? I doubt it.

What do you think? Have we reached a tipping point in terms of Super Bowl advertising? Should we stop calling them ads? Maybe “public service announcements” would be more appropriate!

What is a Super Bowl ad? Typically a Super Bowl ad refers to the ad of a brand that has paid lots of money to air its ad on network television during the Super Bowl, a/k/a The Big Game.

Apparently there are some NFL guidelines CBS had to follow as it began to receive offers of $5 Million for airing thirty second spots, so there is some control exercised by the NFL, it appears.

Not sure how Fiat avoided the NFL ban on “male enhancement products” ads last year — or may a car company allude to another’s banned product and avoid the ban itself?

As we, and others, have written about before, the NFL gets a little crazy about others using the words SUPER BOWL in advertising without the advertiser being an official sponsor.

But, does the appearance or reference to the words “Super Bowl” in an advertisement automatically make it a Super Bowl ad?

To be clear, the NFL doesn’t have an absolute right to forbid all possible use of or reference to the Super Bowl mark or event — especially when nominative fair use may apply.

Word to the wise, don’t try to navigate this fair use question on your own, even if you’re just planning to use the words, knowing you can’t use the logo.

So, what about ads that aren’t broadcast during the Super Bowl, they might be printed or aired leading up to the Big Game, are those Super Bowl ads too?

Would anyone believe the NFL has approved them? Or, do they merely reference another brand, the Super Bowl, in their advertisement, without resulting in any likelihood of confusion?

This gem arrived in my inbox during the course of the week, leading up to Super Bowl Sunday:

DunhamsSuperBowlisComing

What do you think, fair use, or off sides penalty? And, how about this one?

LowrySuperBowlSampler

Last one, was it necessary to avoid use of the Super Bowl mark here and replace with the infamous Big Game instead?

DunhamsSuperBowlSavings

How many letters do you suppose the NFL sends out in the two months following the Big Game?

If you’ve received one, we’d love to here from you, maybe we’ll share your story . . . .

Back to the other kind of Super Bowl ads, some of my favorite “official” Super Bowl ads from Super Bowl 50 were these, in no particular order:

  • Heinz Ketchup’s “Weiner Stampede” — my family loves dogs, what can I say? (USA Today’s AdMeter liked it too: #2);
  • Dorito’s “Ultrasound” — this was hilarious, having been in the delivery room four times, and lacking necessary focus at times, no doubt, but never once distracted with a bag of Dorito’s, at least that I recall anyway (USA Today’s AdMeter liked it too: #3)
  • Honda’s “A New Truck to Love” — can’t resist sheep singing my favorite Queen tune (USA Today’s AdMeter liked it too: #7)

And, I tend to agree with the worst five Super Bowl 2016 ads, according to USA Today’s AdMeter. I’m not sure the Super Bowl is an event where the folks expect to see boring pharmaceutical or laundry detergent ads.

So, which ones did you enjoy?

Now that Super Bowl XLIX is in the rear view mirror, and the New England Patriots have been duly congratulated for winning anything but a Mediocre Bowl, for those of us with no pigskin in the big game this year, it’s time to think about the possible magic of Super Bowl L.

Wait what? Is that really a good idea, given the recognized meaning of the L-word?

After all, Glee and others have done too impressive of a job cementing the “loser” meaning to L, even though another more positive alternative branding cliche exists: Leadership (as we’ve noted before).

The NFL began using Roman numerals to designate each Super Bowl, beginning with the single-letter V in 1971 for the 5th Super Bowl, and continuing through X to designate the 10th Super Bowl in 1976, all the way to XLIX as depicted above.

However, back in June 2014, the NFL finally announced it would lose the Roman numeral graphic design, kind of like the disappearing 13th floor in an elevator, because Super Bowl “L” wouldn’t be aesthetically pleasing by itself, at least to some — probably unlucky too.

So, next year, Super Bowl L won’t exist, instead we’ll be talking about Super Bowl 50, the Golden Bowl, to be played in the Golden State at the home field of the San Francisco 49ers, who mined for gold back in the day.

Then, after a one year hiatus from that pesky singular Roman numeral, the NFL plans to be back in the Roman numeral business with Super Bowl LI in Houston, and more importantly, Super Bowl LII in Minneapolis in 2018. Make sure to come see us!

I’m thinking the NFL probably made the right call in losing the solo L for the 50th Super Bowl, the graphic on the left below just doesn’t work and only invites ridicule — but, do our readers who are graphic designer types agree? Was there no possible way to sell an elegant solo L?

 

 

 

 

 

 

 

 

 

 

 

 

What do you think, will the Roman numerals make a comeback in Houston for Super Bowl 51?

Oh, I almost forgot, what did you think of the Super Bowl ads?

Budweiser tugged at the heartstrings again, this time with Puppy Love.

Seems like there were lots of ads promoting other television programs — since I’m a huge fan of The Voice and Mad Max Beyond the Thunderdome, that combo was hard to beat for me.

Fiat’s use of a little blue pill to introduce the new 500X made me, as a trademark type, wonder what Pfizer thought about it, can you say Viagra?

Does Fiat not appreciate that Pfizer also owns a non-traditional trademark registration for the color blue as applied to a diamond shaped dosage tablet?

Was Fiat’s use of a hexagonal-shaped tablet enough to avoid the scope of non-traditional trademark rights held by Pfizer? Might some have thought it simply was another funny co-branding Super Bowl ad?

So, which Super Bowl ads were your favorites and why?

It’s that time of year again. Time to tiptoe around and avoid use of or make any reference to the Super Bowl. Whoops. Anyway, we’ve discussed this phenomenon before:

Advertisers — fearful of NFL legal action — strain and contort to avoid the two words that could make out a nominative fair use of the Super Bowl trademark, opting instead for pairs of other code words like “Super Sunday,” the “Big Game,” “Super Party,” or “Superb Owl” coverage.

Welcome to the advent of “Bowl Viewing Parties,” not Super ones, but Lavo and Tao ones:

Please, would someone just lawyer up, and call it the Super Bowl, while calling the NFL’s bluff?

With all the hype and chirping leading up to The Big Game, as one of the many who didn’t have a “horse” in the race, as someone just looking to enjoy an exciting and competitive game, I’ll borrow Richard Sherman’s infamous line (that he now apparently regrets, but I couldn’t help being reminded about, as he winced for the camera while being carted off the field): Mediocre.

Actually, less than mediocre, how about boring?

I’m not sure the ads this year did much better, nor the half-time entertainment, it all left me wondering if the whole event has just gone to pot? Get it?

But, there were a few ad diamonds in the rough, at least from my perspective.

Loved the Puppy Love ad from Budweiser, as did just about everyone else! I also was really drawn to the Bob Dylan endorsement of Chrysler, America, and Detroit.

I’ve never seen a Maserati ad before, and I’m actually seeing some of these exclusive vehicles on the road here in Minneapolis, but this ad didn’t “strike” a chord with me or most viewers, it appears.

Which ones were you drawn too? Which ones disappointed you? Which ones really turned you off?

So, another Super Bowl is now in the books, and another collection of Super Bowl ads has aired. Next time there is a 35-minute delay resulting from a power outage, my vote is to watch more ads instead of watch and listen to sportscasters filling space with lame jokes about cell phone chargers causing the problem. We all know it was Beyonce’s fault. But, had the 49ers won, given their rapid comeback after the lights returned, conspiracy theorists probably would have had even more of a hay day. Back to the ads, one of the big picture takeaways for me was an apparent response by the automakers to Martha’s recent observation that most auto ads are boring. They really stepped it up this year, as our takes indicate.

Here are some of our overall favorites, viewable again from the convenient YouTube AdBlitz of the “2013 Big Game Commercials“:

  • I really liked the visual power of the Sodastream Effect advertisement, illustrating how the world could change if folks self-carbonated, and I’m hardly a tree-hugger (it reminded me a bit of Jason Voiovich’s recent guest post about how we’ll be making certain products in our homes some day with 3-D printers) — check out the ad from Sodastream that didn’t air during the Super Bowl, complete with use of the Coke and Pepsi logos, here. And, while I liked the VW ad’s shout out to Minnesota, it didn’t speak to me like prior VW commercials.
  • Martha liked the Dodge “God Made a Farmer” commercial, and the Audi “Prom” ad;
  • Brent liked the Dodge “God Made a Farmer” commercial too;
  • Catlan liked Go Daddy’s “Big Idea” commercial;
  • Tiffany liked Bud Light’s “Very Superstitious” commercial with the voodoo dolls;
  • Brad liked Doritos “Goat for Sale” commercial;
  • Derek reluctantly admits to liking the Go Daddy make-out commercial; and
  • Anjali liked Samsung’s “Next Big Thing” commercial;

And, from a few of our guest bloggers,

  • Aaron Keller says: “Chrysler with both their ads, in particular the Ram Tough “God Made Farmers” ad: amazingly well done” — more from Aaron here at the CapsuleScape blog;
  • Mark Prus says: “In a pool of weak sisters, the Budweiser Clydesdale ad stood out. Budweiser knows how to tell a story when they advertise the Clydesdales, and this year was no exception. In fact, if you go back to historical Super Bowls, you will see the Budweiser Clydesdale ads were almost always top rated. Whoever writes these ads is a great storyteller. Strangely enough, Budweiser is also going to win “Worst Super Bowl Ad” with its Black Crown introduction. Unless of course you are one of “the loud, the savvy and the famous people” they were targeting.”
  • Brent Carlson-Lee says: “Of those I saw, I thought Taco Bell, Doritos and GoDaddy were the best. Not that I necessarily liked the GoDaddy spot, but I do think it met its objective.”

So, everyone has an opinion on the 2013 crop of Super Bowl ads, what is yours?