CHICAGOLAWBULLETIN.COM TUESDAY, FEBRUARY 13, 2018

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Volume 164, No. 31 Serving Chicago’s legal community for 163 years Keeping ‘’ safe full-time job uper Bowl 2018 was in drew a little too much interest. many ways no different The day after the Super Bowl, than National Football MARKETING PLAYBOOK Mercedes-Benz announced on its League championship website that it had run into tech - games of previous nical difficulties and scrapped Syears. As always, one of the the game. Instead, a winner most anticipated aspects of the would be randomly drawn from a game were the commercials. pool of everyone who had regis - Filled with humor, social state - DOUGLAS N. M ASTERS tered to play. ments, celebrities and avocados, AND SETH A. R OSE Clearly, creating an indirect as - the commercials generally sociation with the Super Bowl as - proved to be as entertaining as sociation can be invaluable — not they were expensive. Douglas N. Masters is a partner at Loeb & Loeb LLP, where he litigates and to mention cost-effective — for a And behind the scenes, the counsels clients primarily in , advertising and unfair brand that can’t afford or wants was as competition. He is co-chair of the firm’s intellectual property protection group and to avoid paying the stratospheric zealous as ever about protecting he can be reached at [email protected]. Seth A. Rose is a partner at the firm, amounts charged for commer - its intellectual property from where he counsels clients on programs and initiatives in advertising, marketing, cials and licensing rights. those who would attempt an end- promotions, media, sponsorships, entertainment, branded and integrated For Super Bowl LII, advertis - run around the league’s trade - marketing, and social media. He can be reached at [email protected]. ers paid NBC more than $5 mil - marks and copyrights. lion to air a 30-second The NFL first trademarked In 2017, 111.3 million watched rounding the event means that commercial during the game, the term “Super Bowl” in 1969, the Super Bowl and although non-NFL sanctioned advertisers Sports Illustrated reported. NBC the year of Super Bowl III, and it viewership slipped a bit this year can use the words “super” expected Super Bowl commer - has been fiercely policing unau - to 103.4 million viewers, the Big “game” and “party” and con - cials to yield $500 million, a thorized uses by advertisers and Game is still one of television’s sumers will know exactly which record for single-day revenue others ever since. But, as adver - biggest nights all year. In fact, game is being referenced. Using generated by one company, ac - tisers move away from tradition - while this year’s broadcast had stock graphics of footballs, hel - cording to Adweek. al marketing methods and the lowest viewership of the past mets and the teams’ colors to The much-hyped commercials experiment with social media nine years, it was still reportedly boost the association doesn’t have become nearly as big a platforms and new ways of en - the 10th most watched show in hurt, either. draw as the game itself. This gaging viewers, the league’s job U.S. television history. One of the most brazen exam - year, the commercials aired has gotten more complicated. Brands can also take an en - ples of was showcased brand luminaries in - Some brands are combining tirely different — but riskier — Newcastle Ale’s 2014 series of cluding , , traditional commercials with route. Some brands try to capi - web videos starring actress Febreze, Groupon, Hulu, creative digital campaigns. Avo - talize on the Super Bowl hype Anna Kendrick, who told her Hyundai, Kraft, Lexus, M&Ms, cados from , the market - without paying big money to be hair stylist about a Super Bowl , , Pringles, ing group that represents an official sponsor or licensing ad that the brewer was unable to Squarespace, , T- Mexican growers of Hass avoca - partner. make, noted Variety. Every time Mobile, Toyota and . dos, made its fourth consecutive Known as “ambush market - Kendrick said “Super Bowl,” the The NFL has strict rules about appearance in the roster of ing,” the practice can be a risky words were bleeped out. But, of what does and doesn’t fly when it , once proposition because the NFL course, viewers got the message. comes to infringing on its intel - again touting the fruit as the goes on the offensive every year This year, Mercedes-Benz lectual property. For example, healthy life of the party. to protect its prized Super Bowl took ambush marketing to new sweepstakes and giveaways In addition to its light-hearted intellectual property. From send - digital levels. The automaker should avoid using the words TV spot, Avocados from Mexico ing cease-and-desist letters to didn’t air a commercial during “Super Bowl” and awarding debuted a partnership with Inmoji, broadcast and print advertisers the Super Bowl but ensured it game tickets as prizes. Even which uses emojis to create brand - who use “Super Bowl” in their remained on viewers’ minds using a disclaimer proclaiming ed, clickable icons that users can content to shutting down during the game, even if its idea the advertiser is not an official send to share content, including churches’ Super Bowl-watching didn’t go as intended. sponsor or licensee of the Super advertising. Inmoji is deploying its parties, the NFL has proven time Mercedes-Benz planned to Bowl could draw a cease-and-de - new “Picmoji” function that allows and again that it means business give away an AMG C 43 Coupe to sist letter from the NFL’s users to combine selfies and emo - when it comes to protecting its the person who kept a finger on lawyers. jis for its Avocados from Mexico and licensing rights. the car the longest as it moved The league also has a strict campaign, featuring avocado emo - But that doesn’t stop business - across screens in a stance on Super Bowl watching jis, according to Adweek. es from capitalizing on the Super streamed video. Variety com - parties at bars and restaurants. The produce industry doesn’t Bowl event indirectly without ac - pared the game to car dealership Establishments that have public typically have the budget re - tually infringing on the NFL’s promotions in which the person performance licenses to show quired for Super Bowl-level ad - trademark rights. The most pop - who remained physically touch - TV programs can air the Super vertising, but Avocados from ular unprotected euphemism is ing a vehicle the longest got to Bowl for its patrons, but can’t Mexico’s broadcast and digital “The Big Game,” but the Super keep it. use the words “Super Bowl” to campaign indicates it thinks the Bowl’s iconic status and the an - Dubbed “The Last Fan Stand - advertise the event or charge a exposure is worth the money. nual advertising frenzy sur - ing,” the challenge unfortunately fee to watch the game.

Copyright © 2018 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media. The NFL took some heat in vantage must proceed with cau - Pepsi won the first #MVP a variety of industries, including 2007 when it sent a warning to tion, particularly if they use award for the brand that re - alcoholic beverages (Bud Light), an Indianapolis church that evolving digital media formats ceived highest percentage of automotive (), travel planned a large-screen viewing and novel marketing ideas. brand-related tweets. It certainly (Tourism Australia), consumer Super Bowl party for Colts fans. Copyright law has struggled to didn’t hurt that Pepsi sponsored packaged goods (Tide) and din - The league relaxed its game- keep pace with emerging social the Super Halftime Show and ing (Avocados from Mexico). watching rules for churches as media content and technology, any tweets about the concert The #Brand Bowl is a savvy long as they do not charge ad - which could result in disputes counted toward Pepsi’s total, move for the struggling , mission, although they may ask with the NFL for which there are noted the website Marketing according to Adweek, because it for donations; show the game live no legal precedents. Land. gives advertisers an opportunity on equipment they use in the At least one social media giant Doritos and Mountain Dew’s to reinforce their brand with a course of their ministry; and is embracing nonofficial Super joint commercial won the #Blitz Twitter campaign while giving avoid calling the event a “Super Bowl advertisers, however. This award for generating the most non-Super Bowl advertisers an Bowl” party, according to the year, Twitter made sure that tweets per minute. The #Quar - incentive to use Twitter during website Christian Copyright So - Super Bowl commercials got terback award for the brand that the game. lutions. more exposure than ever by in - received the most retweets on a Brands only have to look at So, given all these constraints, troducing its first #BrandBowl, single tweet went to Universal how the latest digital media con - it’s no surprise that this year, the which handed out awards for the Pictures’ “Jurassic World.” tent and technology is trans - NFL swiftly shut down a grass - best ads and created a space for Notably, Ally Bank won the forming sports marketing to see roots campaign for fans of the users and advertisers to discuss #Interception award for the that staying on top of new trends Super Bowl champion Eagles to the Big Game and the commer - brand that did not run a national could be highly rewarding. watch the game together on the cials. Significantly, the #Brand - TV spot during the game but re - At the same time, it’s a safe bet giant screen at Lincoln Financial Bowl also included brands that ceived the highest percentage of that such trends will inspire a Field in Philadelphia. didn’t advertise during the Super brand-related tweets. Awards new wave of ambush marketing Advertisers that hope to use Bowl but still drove the most were also given to the brands tactics that will continue to keep ambush marketing to their ad - tweets. that garnered the most tweets in the NFL on its toes.

Copyright © 2018 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media.