There's free speech and then there's expensive speech. The first amendment of our constitution prohibits Congress from "abridging the freedom of speech." On the other, in 1946 Congress passed the Lanham Act which provided for the first federal system of registering and protecting trademarks. The power to do so is granted by Article I, Section 8 of the US Constitution, also known as the commerce clause. As a result, Maine small businesses cannot utilize trademarked words, phrases, or images in their radio advertising without permission of the trademark's owner.
Among the trademarked terms that cannot be used when advertising on Portland radio are
- Super Bowl
- Red Sox
- March Madness
What Is A Trademark
According to the Harvard Law School, "A trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller's products and distinguish them from the products of another. For example, the trademark "Nike," along with the Nike "swoosh," identify the shoes made by Nike and distinguish them from shoes made by other companies (e.g. Reebok or Adidas). Similarly, the trademark "Coca-Cola" distinguishes the brown-colored soda water of one particular manufacturer from the brown-colored soda of another (e.g. Pepsi). When such marks are used to identify services (e.g. "Jiffy Lube") rather than products, they are called service marks, although they are generally treated just the same as trademarks."
So not only can words be trademarked, entire phrases can be trademarked as well, prohibiting the phrase from being used in advertising. So, for instance, The NCAA vigorously protects its trademark of "Final Four." The Walt Disney Company guards their ownership of the phrase "I'm Going to Disney World.". A local Portland restaurant tried to use the phrase "Where all the women are strong, all the men are good looking, and all the children are above average" only to be denied by Garrison Keillor of Prairie Home Companion who owns the trademark on that phrase."
When Does Trademark Infringement Occur
According to the Harvard Law School, "If a party owns the rights to a particular trademark that party can sue subsequent parties for trademark infringement. The standard is "likelihood of confusion." To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent.
There are some cases where the use of a trademark in a commercial might be legal, but probably not worth the cost of finding out. According to the Cornell University the Lanham act favors the trademark owner putting the burden of proof on the business accused of violating the law. Losing a trademark infringement case can be expensive in terms of both legal fees (it's a federal offense, after all) and damages. A court can force a company who is found guilty of infringement to give back three times the profits associated with the illegal use of a trademark."
Stick With The Big Game
If you are a Maine small business and want to evoke images of The Super Bowl in your Portland radio advertising, there are ways. The most common is the phrase "The Big Game." For instance, a convenience store might say, "If you run out of dip before the start of The Big Game, then we're here for you."
Another article you might like: Blame It On The Constitution: Using Music In Radio Commercials