HowStuffWorks Attempts To Explain Why Advertisers Use Super Bowl Euphemisms, But I have A Simpler Explanation

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It's common knowledge at this point why advertisers start to go wonky after the new year. We've long talked about how all kinds of groups and companies suddenly begin playing the euphemism game when it comes to the Super Bowl, America's annual celebration of brain trauma. Everyone, from comedians to beer makers to tech companies, goes to great lengths to wink at everyone as they all refer to the Super Bowl by any name other than its own. Why? Well, because the NFL has a trademark on the term, which allows it to restrict the user of the phrase only to its sponsorship partners... except that that's not remotely true and isn't how trademark law works at all. Instead, the only real prohibition is on the implication that a company is an official sponsor of the NFL when it isn't. Beyond that, simply calling the game what it's called isn't trademark infringement.But this is confusing enough that this year the website HowStuffWorks has done an entire piece to explain to an almost certainly confused public why companies are pretending that nobody knows what they're talking about when they say "the big game" instead of "the Super Bowl." It's a post that deserves a rebuttal, which I will helpfully provide.

The Super Bowl is a registered trademark of the NFL. And the football league also owns the copyright to the telecast of the game. That's why advertisers use unregistered phrases like "the Big Game" or "the football championship" when hawking a furniture sale or happy hour, for instance. The NFL allows the Super Bowl sponsors and the network airing the game that year to use the phrase, but they pay heavily for it.

"The NFL wants to make sure they keep their sponsorships the way they want to control who has use of the phrase," says Anderson. "That way people can know what's directly connected to the NFL and their product." Trademark infringement occurs when someone uses a trademarked term (like "Super Bowl") in a way that may cause a person to wrongly infer an official connection between the company the trademark belongs to and the product advertised.

It’s unnecessarily stupid for the NFL, which should want “Super Bowl” said as often as possible, because until 100% of TVs new and old are tuned to the Big Game, the league has not accomplished its goal of complete domination of American consciousness. Best Buy wants to have a Super Bowl sale? Great! That’s a free ad for the NFL, which should thank a non-sponsor for promoting their product.This is not, however, how the NFL thinks. This is the same league that banned its own teams from posting GIFs of game highlights, ostensibly to protect its TV partners, as if any GIF-worthy play isn’t being turned into a GIF by a thousand different people and going viral anyway. Shouldn’t the league want its teams to reap the benefits of all those clicks, which convert to social media followers, which convert to deeper embedding of the product, through official channels, in the minds of consumers?

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Good News: Nevada's Strong Anti-SLAPP Law Is Constitutional

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For many, many years we've talked about the importance of strong anti-SLAPP laws. In case you're new to the subject, SLAPP stands for a Strategic Lawsuit Against Public Participation. In short, SLAPP suits are lawsuits where it is fairly obvious that the intent of the lawsuits is to stifle free speech, rather than for a legitimate purpose under the law. The intention of anti-SLAPP laws are to allow for such lawsuits to be tossed out of court quickly -- and, frequently, to force those who bring those suits to pay legal fees. While actually getting a federal anti-SLAPP law is really important, for now, we're left with a patchwork of state laws. While many (though not all) states have anti-SLAPP laws, they vary widely in terms of what they cover and just how strong or effective they are.As we've pointed out in the past, a few years ago, Nevada passed a really great anti-SLAPP law, though it's been under attack the past few years. Thankfully, Marc Randazza informs us that Nevada's anti-SLAPP law has been found to be Constitutional, meaning that it will survive largely intact (a few changes had been made a few years ago to bolster the law's likelihood of surviving).Perhaps even more important was that the ruling basically recognized that Nevada's anti-SLAPP statute was similar to California's (much older and much more broadly litigated anti-SLAPP) law, and that Nevada courts can use California case law for its own anti-SLAPP cases. That's also a good thing:

A secondary issue in the case, and an important one, is that the Nevada Supreme Court recognized that Nevada and California Anti-SLAPP jurisprudence are essentially one body of law. This is not entirely new law. In John v. Douglas Cnty. Sch. Dist., 125 Nev. 746 (2009), the Nevada Supreme Court held similarly, but this was discussing the prior version of the law....[....]The good news is that the Court reaffirmed the John v. Douglas County pronouncement that Nevada courts should rely on the rich body of California case-law in interpreting the Nevada statute. Given the scant case-law we have in Nevada, this is a godsend. California has interpreted "matter of public concern" as extremely broad. Meanwhile, I have seen Nevada trial court judges looking at the standard as much more narrow.This is a good decision that brings more predictability to Anti-SLAPP litigation under the Nevada statute, and ultimately will function to keep Nevada's free speech protections aligned with its free-speech-protective neighbor.

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