Austin Padgett and Rusty Close use their shared love of television and Super Bowl nostalgia to unpack the legal world of major event branding.
In this episode of No Infringement Intended, Austin Padgett and Rusty Close use their shared love of television and Super Bowl nostalgia to unpack the legal world of major event branding. They explain why so many advertisements avoid saying "Super Bowl" and instead lean on "the big game," breaking down how trademark law and the Lanham Act empower rights holders like the NFL to control sponsorships, police false affiliations, and protect the value of being "official." Austin and Rusty walk through where harmless reference ends and risky commercial use begins, and why sometimes the safest move is to let the big game do the heavy lifting for your marketing.
No Infringement Intended, hosted by Rusty Close and Austin Padgett, is your go-to podcast for exploring the fascinating intersection of intellectual property and pop culture.
No Infringement Intended — Why Does Everyone Say ‘The Big Game’ Instead of ‘Super Bowl’?
Hosts: Rusty Close and Austin Padgett
Recorded 11/6/25
Aired: 1/27/26
Austin Padgett (00:13):
Come one, come all. Welcome to No Infringement Intended, an intellectual property podcast of the law firm, Troutman Pepper Locke, hosted by the renowned bad boys of intellectual property, Rusty Close, and Austin Padgett. While we're getting our notes together here, why don't you take a second and just make sure that you're subscribed and then give us a five-star ranking on your platform of choice. If you want a challenge, find a way to work the word “mullets” into your review, just so that we'll all know that you're one of the real ones. Before we get to the substance, let's dip back into the old mailbag like we do on these episodes. Thanks again to everyone who's writing in. Jim writes in, he asks, “Following up on your holiday episode, could Santa” – okay, I think I know what he's getting at here – “Could Santa sue the Grinch for infringement, and would he win?” Rusty, I'll take this one real quick. Jim, the unfortunate thing that I've learned for Santa's case is that there's no functioning justice system in Whoville. As you've seen in the special, it appears to just be an anarchic utopia where enforcement is based on peer pressure and singing, so it's probably just a non-starter. Let's see. Timmy writes us and tells us that he's named his cat Copyright, which I'm all for. Rusty, you good with that?
Rusty Close (01:30):
I think that's a pretty good name. I think that Copyright probably rolls off the tongue better than Patent or Trademark.
Austin Padgett (01:36):
For sure. Let's see, and last one for today. Leanne writes us and says, “Guys, the IP stuff is great, but can you talk more about television shows?” Leanne, I’m probably sure that Rusty can make that wish come true today, but I'll throw it to him to start off this episode.
Rusty Close (01:52):
We can definitely talk more about television shows and we're going to do that today. You went to law school in New Hampshire, that's right?
Austin Padgett (01:59):
I did, yep.
Rusty Close (02:01):
In law school, did you have a roommate?
Austin Padgett (02:04):
I did, in a sense. It was my ex-girlfriend, and when I say that, it's a reference to my wife because I was married at the time. I keep giving you all my jokes here that I've got to come up with new material. I think it's funny to introduce my wife as my ex-girlfriend sometimes, and she hates that.
Rusty Close (02:22):
I can tell you they also hate when you refer to them as your roommate.
Austin Padgett (02:25):
Yeah, it's actually a great joke. Both of those are great jokes though, so.
Rusty Close (02:29):
They're great jokes and also will lead to some side eye later on.
Austin Padgett (02:32):
For sure.
Rusty Close (02:33):
When I was in law school the first two years, I roomed with my younger brother who was an undergrad at the time. There are times, as all of our lawyer friends will know, that those are not necessarily compatible lifestyles.
(02:49):
We lived in downtown Athens, Georgia, so that's also not super compatible with being in law school either. There were times – it was pretty close to the law school itself, so I could walk back and forth. In your first year of law school, you're just in the library all the time, at school all the time. Sometimes to break up the day, my law school friends and I would stop by my apartment just to see what was going on, and invariably my brother would be there laying on the couch watching television, and it was usually one of three things. It was Beverly Hills 90210, it was The O.C., or it was Dallas.
Austin Padgett (03:30):
Dallas, okay.
Rusty Close (03:31):
Yeah, Dallas was a big one for him, and my law school buddies got such a kick out of that. That those were the things that he would be revisiting while we're grinding away in our law school courses, and he's finishing up his undergraduate coursework by watching The O.C.
Austin Padgett (03:48):
I love it.
Rusty Close (03:49):
Like you said, we talk about television all the time. We know about your VHS collection of The Wonder Years, but are there any other shows – 90210, The O.C. or Dallas not withstanding – that you've revisited over the years?
Austin Padgett (04:02):
Yeah, that takes off a huge chunk. It actually reminds me of my college roommate in undergrad who planned his class scheduling around the syndicated reruns of Dawson's Creek, which ran from 10 to noon every day through the week. Just from that time, I can tell you that I have a strong working knowledge of that show.
Rusty Close (04:21):
Just from that. Yeah.
Austin Padgett (04:23):
Yes, absolutely. Rewatchable, I think you and I have probably shared The Wire. It’s one that probably once a year I'll just go back and just binge The Wire because it's such a great show and I catch new things on it each time.
Rusty Close (04:41):
Do you do one through five or do you just pick a season?
Austin Padgett (04:44):
Typically I go the whole way one through five, at least one through three.
Rusty Close (04:48):
Man, four is a tough one because that's when the kids get involved, and so that one will really stick a knife in your stomach. But what's your favorite season?
Austin Padgett (04:57):
I'm still a season one guy, even though I struggle with Pryzbylewski on that, he becomes such a great character throughout and he's not very likable in season one.
Rusty Close:
Not at all.
Austin Padgett:
I love that guy and this character, and so it's tough to do season one, but that is, I mean, you just get such, it's such a great story arc throughout. Just perfect television. Other ones: Arrested Development. If you rewatch that, you're going to catch new things every time just because it's such a dense show. Here's one I'll throw at you: Sports Night.
Rusty Close (05:30):
Never watched Sports Night.
Austin Padgett (05:32):
It's Aaron Sorkin pre–West Wing, but it is solid, and it becomes a different show throughout. At the start, it has a laugh track that's ditched about halfway through and it becomes more like prestige television. It's really interesting to watch the arc of that show. I'm not a huge Sorkin guy, but I think it's great writing from him.
Rusty Close (05:55):
You don't love that snappy walking and talking dialogue?
Austin Padgett (05:58):
It's a lot, man. Everything has to be so dense and statesmen-like. All that kind of stuff. Last one, I'll give you: Northern Exposure.
Rusty Close (06:07):
Okay, that's another one I haven't ever really watched. The Wire, of course. We actually watched some episodes of Arrested Development the other night. For some reason, we just weren't sure what we wanted to watch. We wanted to watch something that will make us laugh. We went right to that. Reno 911 – that's another one where if you haven't watched it, you'll pick up new stuff all the time. All this free time that we have that we can just spend watching shows that we've already watched.
Austin Padgett (06:30):
Right? Yeah, exactly.
Rusty Close (06:33):
In an earlier episode, our listeners obviously remember this, we talked about the Mandela Effect. I think I was having some sort of Mandela effect because I had this strong memory of an episode of 90210 where they all went – where “the crew” – all went to the Super Bowl, and it turns out there is no such episode as that.
Austin Padgett (06:55):
Oh, interesting.
Rusty Close (06:56):
I think what I must have been, if it wasn't the Mandela effect, I think what I must have been thinking about was there's an episode where they went to see the Rolling Stones at the Rose Bowl. That’s probably what I was, in my mind thinking, was they went to see the Super Bowl. But my question for you, do you have any significant Super Bowl memories for growing up?
Austin Padgett (07:19):
Well, growing up, of course there's cultural milestones. Whitney Houston, 1991. Michael Jackson, a couple years after that with his halftime show. Particularly for me is ‘93, ‘94, ‘96 with the Cowboys, because Emmitt Smith is playing, and he's from Pensacola where I grew up. In ‘96, you had Prime on the Cowboys as well. Having the two of them primes my FSU guy. Those big – I wasn't a huge pro football. We didn't have a team close to us growing up, and so it was really – college is what we knew very well. Super Bowl and the playoffs, when that time of season would come, it's kind of like baseball for me as well. It is such a long season and there's so much going on, but I'll tell you that probably the most important Super Bowl was actually more recent in 2014. That was the day my youngest son was born.
Rusty Close (08:12):
Oh, nice.
Austin Padgett (08:13):
It came just a couple of days after Snowpocalypse. We're here in Atlanta a couple of days beforehand. Snow turns into ice. Shuts down the city. We’re talking about cars abandoned in the roads, children stuck at school overnight because buses can't run them home or go anywhere and their parents can’t get to them, and my wife is about to give birth any day to our third kid, and there's not a chance for us to even get out of our street because it's blocked by cars that have been left behind by their drivers. There's no way an ambulance is going to get anywhere close to us either. I'm walking around trying to act real calm and just give off, you know, calmness vibes, but I'm secretly watching internet videos that I'll never unsee about how to deliver a baby.
Rusty Close (09:00):
Yeah, you're thinking about when do I fill up this bathtub?
Austin Padgett (09:01):
Yeah, I've actually lined the bathtub with a tarp at this point in preparation, and my wife is like, “What is going on?” She sees me pass by with a tarp, go on up the stairs and stuff. It was wild time. Long story short, he comes soon afterwards, but we were able to make it to a hospital by this time. They had kind of cleared out the cars that day before. He's born, and I watched the Super Bowl from the hospital, holding my youngest boy in my arms. If you remember the game in 2014, Seattle just destroys Denver. Another one of my personal jokes that I say all the time is that my son showed up when Peyton Manning didn’t.
Rusty Close (09:40):
Yeah. I mean, growing up in Atlanta in the eighties, early nineties, I mean the Falcons were so, so bad. So, it's not like they were ever involved in any Super Bowls. But I remember, I think the first one I really remember is Super Bowl XX, which was the Bears team that was so dominant. Walter Peyton and Jim McMahon and Refrigerator Perry. I think that's kind of one of those early memories where I start thinking about remembering sports and following sports and kind of knowing what's going on. But when I started working – there was a period of time after I finished college and before I went to law school that I was working – and during that period, early 2001, 2002, I was listening to Sports Talk Radio a lot.
Austin Padgett (10:23):
You got to. Yeah.
Rusty Close (10:24):
You got to. I mean, I imagine where you grew up, it's just ‘Noles all the time. Bobby Bowden's better than Steve Spurrier. I mean, that's just got to be day in and day out. That's what we're talking about.
Austin Padgett (10:36):
Yeah. There was a real struggle too, where in Pensacola, you're closest to the Saints, but a lot of people want to be Bucks fans. The Bucks have now started there.
Rusty Close (10:47):
Yeah.
Austin Padgett (10:47):
It's an interesting place because there's not a real pro team, but there's definitely a pro team in the college level at that point in time with the ‘Noles just running like they are at that point.
Rusty Close (10:58):
“Free Shoes U”. Yeah, that was the height of that era.
Austin Padgett (11:00):
Absolutely.
Rusty Close (11:01):
One thing that always got my attention was around the time of the Super Bowl – and whenever you're listening to Sports Talk Radio, they were very intentional. Well, so first of all, Sports Talk Radio, the reason I can't listen to it anymore, it is just ads, ads, ads, ads, occasional weather and traffic report, and then some hot takes, and then 10 more minutes of ads.
(11:25):
But around the Super Bowl, they were very intentional to never say “Super Bowl”. They're advertising for local events that they're going to be doing, events at sports bars and things like that, but they never said, “Super Bowl”. You knew what they were talking about, whether it's “the big game” or “the end of the season game” or some sort of coded language. It always bothered me. When we were talking about doing this podcast, that was one of the original thoughts I had – well, there must be some IP reason that they can't say “Super Bowl”. Right? I'm sure that's something you've picked up as well.
Austin Padgett (12:06):
For sure. Yeah. I mean, probably every year, and not just the Super Bowl, but other huge events where companies want to reference them and make use of that as getting people in the doors or doing something around it. Yeah, it comes up all the time. The Olympics are the same way.
Rusty Close (12:25):
Yeah. Final Four.
Austin Padgett (12:26):
Yeah. Think about any major event, sporting or otherwise. I mean, we even get some around big concert festivals and things like that.
Rusty Close (12:35):
Sure. One of the things that we've talked about over the course of our episodes: trademarks. My initial thought is, well, this must be a trademark issue. Since we've done such a good job of educating our listeners over the course of these episodes, they know trademarks. It's a consumer protection tool. They're meant to indicate to the consumer the source of a good or a service, right? I mean, I'm getting that right.
Austin Padgett (13:03):
You're exactly right. Easiest way is everyday stuff. You go to the grocery store and you're going to pick up some detergent. You see the detergent's name, and you've either bought it before or someone's told you that it's great and its name rings out. That's the goodwill that's protected. It's designed to make sure that you're getting what you expect – the quality level – when you buy that product, and you're buying reputation.
Rusty Close (13:30):
In this case, the NFL has lots of trademark registrations for Super Bowl. There's one in particular that I found. It’s this entertainment services in the nature of football exhibitions, and it goes all the way back to 1969. We’re talking about – I didn't do the math, but I think that's Super Bowl I. They have the trademark registrations, but the more I think about it, it doesn't seem like a pure trademark issue. I mean, if “Tom's Old Country Buffet” wants to do all-you-can-eat smothered pork chops on Super Bowl Sunday or something like that, it's hard to get your head around how there's a likelihood of confusion there. That somehow that's a Super Bowl related event or something like that. We're the bad boys of IP, so I want this to be an IP issue that we can tackle, but I'm feeling like I'm missing something.
Austin Padgett (14:27):
In that traditional kind of go up to the grocery store, look at the product, and that name rings out, there's another layer of protection. We can call it false advertising, false affiliation, that type of thing. But there's another layer that is protecting consumers because of this association or a false association with somebody or their mark. There’s a section in the Federal Trademark Act called the Lanham Act. I just pulled the section real quick for us. This is the cause of action that you can find infringement where this use is “likely to cause confusion or to cause mistake or to deceive as to the affiliation, connection or association of such a person with another person or as to the origin, sponsorship or approval of his or her goods, services or commercial activities by another person.” There’s this extra layer when you own a brand that you also own the approval rights of that brand.
(15:34):
You can extend your reputation beyond the scope of your product. Let's say it's a concert festival. You can bring in: here's the official water supply. We're going to sell water, or there's going to be water available at this event. Here's the official water provider. We've scoped them out. We know these people, they're good to go. They meet our quality standards. They're here, and they can be associated with us to the extent that we can say – let's say they're, let's pick a generic name, “Hydro” – the official water of XYZ tour. All of a sudden, we've lent our name out to them to help them, and consumers know, “Hey, we stand behind this as well.” There’s this extra piece of trademark that it's not just your products alone, but it's kind of the umbrella of scope of how far can you take it? You can imagine with something like the Super Bowl or another huge event, that can extend pretty far. You've seen it in commercials where people will say they're the official “blank” of “blank”, and that's really important and a lot of money is spent there.
Rusty Close (16:40):
It's almost like the trademark owner can take some of the goodwill that they have wrapped up in their mark and put some of that shine down the road onto someone else.
Austin Padgett (16:54):
Yeah, exactly. Sprinkle it or share the love. Yeah, for sure.
(16:58):
In the case of a Super Bowl, the Super Bowl, there's a lot of potential goodwill and shine to sprinkle around on a lot of different products.
Austin Padgett (17:05):
There is for the right price, I imagine.
Rusty Close (17:07):
For the right price. Well, so I think that kind of gets into our other passion on this. We're the bad boys of IP, but we might as well also be the bad boys of commercial agreements between parties.
Austin Padgett (17:19):
The four squares or four corners. There it is.
Rusty Close (17:21):
I suppose that these are negotiated in that same way. We're the owner, we're going to give you – I'm guessing – a limited license to use our mark in association with your certain goods in this certain way. We have approval over the way you do it. We get final sign off on the materials you're going to use or the slogans you're going to use?
Austin Padgett (17:45):
Yeah, yeah. I mean, you can imagine, let's say we have eco-conscious brand. We have some sort of big concert festival. It's kind of tied in with eco-conscious. Well, we're going to go and we're going to get – we need to raise money off of it, but we can create this environment where not only do people know our festival, but our sponsors are going to all meet this same ethos. They're all eco-conscious kind of brands. We’ll have the paper straw folks coming in, we'll have all sorts of other products, and they'll be the official ones in that category. They'll be the official ones in that category and so on. You keep going down the list and we've created a roster of people who not only are we sharing our shine, but they're sharing their shine back and forth. There's a lot of love going on, and that's the way a lot of brands collaborate with others because they need to spread their message, and they know others have established fan bases or whatever you want to call it. They're intermingling, and so everyone can know about them. If you're interested in this type of cause or this type of product, we're creating community around it.
Rusty Close (18:56):
It’s not always just a one-way street. I mean, there's situations where you're expanding the reach of your brand by partnering with someone else and vice versa. We're talking about the Super Bowl here. So, it's, look, we'll let you use it. We'll let you be the official tire of the Super Bowl. You pay us X amount. But I suppose there's other situations where it is a little bit more mutually beneficial to the two parties. We'll get to expand into your field, you'll get to expand into our field. Maybe then it's more of just a – it's just a use, maybe there's not money going back and forth. It's just licenses one way and the other.
Austin Padgett (19:34):
Yeah. Even if there is money, I mean, it's still, that's the commercial reality of it. It takes money to do things, and the Super Bowl is a huge event that has to drive revenue, and it takes a lot of money to put it on. The other part of it is enforcing that part of the brand and the protection. If I told you, for my concert festival, that you're the official hat provider of my festival, if all of a sudden just there's a ton of guerrilla marketing and a bunch of hat providers are there at my gates selling to the same customers or others that are kind of making use of my festival name, that diminishes the value that you have of partnering with me. I need to maintain that value because it's valuable to me, but it's also valuable to you, which makes it even more valuable to me. I mean, I think also there's a lot of charitable causes that link up, and so companies are often very careful about which charities they link up to. It needs to be intentional and thoughtful, and usually you want it to make some sort of sense about why you're linking up. That can be a very powerful mashup of companies as well.
Rusty Close (20:41):
I feel like there also has to be some, and I'm going to say fair use, but I don't know that that's the right terminology. There has to be some line where the news can talk about the Super Bowl and they can talk about events in the area that are coinciding with the Super Bowl, but there's not that risk of some sort of implied affiliation or something like that. Is there any sort of rule of thumb in your mind that you go by where, okay, well it's okay to do this, but if you go here, you're probably going too far?
Austin Padgett (21:15):
There is what's called nominative fair use. That's usually used when you're kind of comparing products. By hours, you'll get 30% more product than you will off of company XYZ’s. On this one, it's probably not really a fair use. It's probably more of a – it's not a trademark use. That I'm not using your trademark to create any sort of goodwill. It's a date and time and everybody knows it's going to happen. It's an event. It’s part of the community calendar, so to speak, for a news organization. I think where you start to bump into the enforcement level is when you're trying to make money off of it or you're trying to move customers your way.
Rusty Close (22:02):
Promote an event.
Austin Padgett (22:03):
Right, yeah. You're jumping on there and you're not part of the invited ecosystem. You're not officially sponsored; you don't have any sort of real place here by invitation. That's where you start running into some trouble. Is there a line? There probably is a line if you're just using it. Part of this is tough to think through because you have such aggressive enforcement as well. Even if you thought that you hadn't crossed a line, good luck proving that and what's the cost going to be one way or the other. It's difficult to contrive of something that a company or a business could do where they're using that name, but they're not really doing anything with it. I think once you get in the commercial context, it becomes much more difficult to claim this is not harmful. There's no potential harm here, or potential confusion.
Rusty Close (22:52):
I mean, I think the takeaway is if you haven't ponied up the dollars to be able to say you're the “official smothered pork chops of the Super Bowl”, if you start using Super Bowl in the same sentence as your event or whatever it is you want to talk about, you're running the risk of getting in some hot water. I'm assuming that's why there's so much intentionality in avoiding it.
Austin Padgett (23:18):
Yeah, exactly. It's kind of the difference between you and I getting a bunch of buddies together and saying, “Hey, let's watch the Super Bowl together”, versus you and I sending an email out to a bunch of guys and saying, “Come over to our place! 20 bucks a head to watch the Super Bowl and we'll have unlimited wings throughout”, or something like that. Now we've got a problem because we're making a commercial use out of that name. Granted, the game's going to be on the television. Let's assume we have the rights to publicly perform that game on the television. We’re tying it around that and that's something that the NFL and the owners of the mark could legitimately make money off of providing exclusive rights, vetting somebody to be the official provider and distributor – that's their network – of that. Once you start getting into that space, you're starting to encumber or at least diminish the value of those rights. It makes it look like it's not as special.
Rusty Close (24:15):
I think that makes total sense. Kind of tying this back to our television viewing, as I was going through and desperately trying to figure out if this 90210 episode did exist, I found several examples of shows that did build the Super Bowl either into the plot or had something to do with a specific episode. Typically, what I found, and I don't want to be definitive and say every single one of them did it, but most of what I found was episodes that were on the network that was also carrying the Super Bowl in the year that the episode aired. Oftentimes the episode aired after the Super Bowl. Super Bowl's on. What comes on next? That episode will build aspects of something to do with the Super Bowl. I wanted to see if you remembered any of these. I don't know if you're a huge Simpsons fan, but there's an episode called “Sunday Cruddy Sunday”. That aired after Super Bowl XXXIII, which I remember well, because the Broncos beat the Falcons, which was the first time the Falcons made the Super Bowl, and they were not competitive. It went so far as to it had NFL players, it had announcers. The plot revolved around a bus trip to the game. It was very much a part of that episode.
Austin Padgett (25:38):
Nice.
Rusty Close (25:38):
Another one, I don't know if you watched the show, “This Is Us”, that was an NBC show.
Austin Padgett (25:42):
You know what? I've really avoided it. Anytime I knew anybody that watched that show, they cried all the time.
Rusty Close (25:48):
My wife cried a lot when we watched that show. Yeah.
Austin Padgett (25:50):
Yeah. Hard pass. I respect it, but I've got enough to cry over and I don't need that.
Rusty Close (25:56):
Of course, we all do. We don't need more. They did an episode, it aired after Super Bowl LII, which was when the Eagles beat the Patriots. I remember that one because it was the first year, first time we took our girls to Disney and we were at Disney World, the resort, the hotel, the night of that Super Bowl. That was another one where they built it into the show a little bit. If you know anything about the show, yes, it makes people cry. It was also typically on more than one timeline each episode. The Super Bowl in the early timeline, the events that happened in the evening happened after the night of the Super Bowl, and in the later timeline, one of the characters threw a Super Bowl party to kind of commemorate that earlier episode. It was built in that way, but not a major, major part.
Austin Padgett (26:48):
I'm getting weepy just thinking about it.
Rusty Close (26:50):
I think for those who watch that show, that's one of the biggies. That's one of the big episodes right there.
Austin Padgett (26:55):
Oh, is it? Okay. Okay. Gotcha.
Rusty Close (26:57):
That one will get your attention. Then the last one I want to talk about: Friends. That one doesn't make you cry, I don't think.
Austin Padgett (27:06):
No, I've seen probably the top 10 episodes, like the 10 “must-watch” episodes, so I get the cultural references.
Rusty Close (27:12):
Yeah, well, that's good. Their episode titles always build in something about the episode, and this title is “The One After the Superbowl”, because obviously it aired after Super Bowl XXX, which is one of the ones you were talking about earlier. January 1996, Cowboys beat the Steelers, 27-17. Those are two of the biggest brands in football. That episode, nearly 60 million people watched that episode of Friends.
Austin Padgett (27:43):
Can you imagine? There's just nothing like that anymore.
Rusty Close (27:46):
Yeah, just unbelievable. But the episode itself had nothing to do with football other than the title.
Austin Padgett (27:51):
Really? Okay. Interesting.
Rusty Close (27:53):
It's titled “The One After the Superbowl”, but instead of “Super Bowl”, two words, they made it one word and speculation that there was some concern about the trademarking and things like that, even though it was airing after the Super Bowl on the network that was showing the Super Bowl.
Austin Padgett (28:11):
Oh, interesting. Yeah, you would assume that there would be kind of like a contractual tie in.
Rusty Close (28:14):
It's built in.
Austin Padgett (28:15):
Yeah. This is actually part of the deal that not only are we going to have an awesome episode of very popular television, which they always do, but also that maybe the NFL can – like in The Simpsons, they can provide some players, grease the wheels with the players union to help get this done, those sorts of things.
Rusty Close (28:36):
Being that there was nobody in it, nothing to do with it, makes you wonder if something kind of wonky happened. It was a double episode. Brooke Shields was in it. I mean, there was a lot to do about it, but it just didn't have anything to do with football.
Austin Padgett (28:49):
Quick aside, after watching the Super Bowl, are you kind of tired of watching television by that point?
Rusty Close (28:54):
A hundred percent. Yeah.
Austin Padgett (28:55):
Yeah. I've always found that – because they always pump like “Right after the Super Bowl. We’re going to watch” – and it's like a brand-new episode. Wow, I just went through: I'm watching for the game and I'm watching for the commercials. There’s not a moment that I'm not really locked into what's happening here. I've got to stick around for the halftime show. I've got to see the pre-festivities and everything. It’s a long program because of the commercials.
Rusty Close (29:20):
I've consumed 4,000 calories.
Austin Padgett (29:23):
Yeah, and I've stayed relatively quiet amongst friends. Typically. It's a very exhausting-
Rusty Close (29:29):
It's killing you. You've got all your parlor tricks and jokes you want to break out.
Austin Padgett (29:33):
I have a ton of jokes and a ton of material I've worked up, and I've just got to shelve it for some future time when we're all together.
Rusty Close (29:40):
Exhausting.
Austin Padgett (29:40):
It really is, so the idea of then just hanging out and watching a new episode of some television.
Rusty Close (29:47):
New episode of Friends.
Austin Padgett (29:48):
Yeah, it's – put it on my DVR, so to speak. We will catch up later.
Rusty Close (29:51):
That's right. Exactly. Our takeaway here, what did we learn? Why is Sports Talk Radio so careful not to say Super Bowl? I mean, I think that's it. It's just too much risk. There's too much risk of this implied affiliation. Better to just avoid it altogether.
Austin Padgett (30:07):
Let's talk about the alternative real quick. I mean, everybody goes with “the big game.”
(30:13):
There's an interesting story is that the NFL actually applied to try to register “the big game” in the early 2000s. There was a number of angles that were coming at it with backlash. One was that the Cal-Stanford college game has been called the Big Game for a long time, and they opposed the registration of that mark, which was ultimately was withdrawn from the Trademark Office, which doesn't mean that the NFL doesn't necessarily view it as a mark, but that they don't have a registration. It seems that “the big game” is kind of that neutral territory that's been agreed that, okay, this doesn't seem to interfere absent more. That's where you often have to counsel clients that they're going to come in and they need some sort of promotion around this same time period, lo and behold. But they want to brand it potentially with a red, white, and blue brand.
(31:11):
They want to put on their social media campaign at the exact same time as the halftime show's finishing. You have to be real careful because just because there's not a huge level of enforcement on “the big game” itself doesn't mean that you can't cross a line that gets you into the territory where you're noticed. I think that's where “the big game” is kind of like, it's not a safeguard. It's not a safe harbor. It's where you're not noticed because everybody's using this thing. Nobody seems to really own it, but if you're not too careful with your guerrilla marketing campaign, all of a sudden you've been too clever by half. You've referenced it as “the big game”, but everything else looks like it's “Super Bowl”. You've got footballs all over the place. Everything looks sort of like the NFL logo
Rusty Close:
You start using Roman numerals.
Austin Padgett:
Yeah, I mean, we joke, but I've seen promotions where it's just like this is just begging for a problem. You have to be real careful that you're not doing other things and have other indicia involved rather than just, oh, we're just calling it “the big game”. It’s like, great, but everything else looks like “Super Bowl”, so we got to dial this back.
Rusty Close (32:30):
If you listen to it or if you just pay attention around that time, you're going to hear “big game”, “big game” over and over kind of thing.
Austin Padgett (32:37):
Yeah. The other part that's frustrating for clients is that not everyone gets caught.
Rusty Close (32:41):
Of course.
Austin Padgett (32:42):
It's such a saturated marketplace. But that said, I can only counsel you with the practical risks. I've got to measure, okay, does this look too far? What's the likelihood of us getting a letter or getting a lawsuit or what it might look like? Just trying to evaluate the bell curves of possibilities because all of a sudden, if I feel like we're trying to get away with one, that's not a great feeling and nobody – that feels good until it doesn't.
Rusty Close (33:11):
What are you gaining by being that close to the line? I think is the other part of it.
Austin Padgett (33:16):
Yeah. Is the juice worth the squeeze? That's a huge part of it. In any analysis for clients where they come up with this great idea, they think – and it's like, listen, if we can dial this back and let “the big game” do the heavy lifting for us, everything else can be neutral and you don't even have to spend money creating all this creative and all this stuff around it. “The big game” has done everything for you and just allow that. Just ride that wave because that feels very safe in this circumstance.
Rusty Close (33:46):
Is the juice worth the squeeze? I'm not sure was a lesson from The Wire, but it could definitely be taken from The Wire. So, I think we can leave it on that note.
Austin Padgett (33:55):
We back up.
Rusty Close (33:57):
Yeah, that's right.
Austin Padgett (33:58):
Absolutely. Well, thanks everyone for listening. Be sure to like, subscribe, give us that five-star rating to help everyone know what we're up to over here. And of course, No Infringement Intended.
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