March 16, 2017

How to Avoid Sadness in March Madness

by Stites & Harbison, PLLC

I must admit it had not even occurred to me that the March Madness season was upon us. As such, you will not find bracket busting tips, upset picks, or predictions in this post. But don't click away just yet. If you read on, you will learn something much more valuable (and much more accurate): how to avoid being sued for trademark infringement by the NCAA this maddening March.

The NCAA has registered numerous marks that relate to the upcoming basketball tournament, including the following:

First Four

NCAA Sweet Sixteen

Elite Eight (and Women's Elite Eight)

Final Four (and Women's Final Four)

The Big Dance

March Madness

In recent years, the NCAA has ramped up its trademark enforcement efforts, sending hundreds of cease-and-desist letters to those who use its trademarks in even the most innocuous ways. According to the NCAA, it does not matter that an accused infringer's business has absolutely nothing to do with athletics. Indeed, the NCAA has demanded that travel booking websites take down offerings that advertise Final Four trips. The NCAA was also successful in a trademark dispute with an adult website that displayed a bracket featuring porn stars alongside naughty plays-on-words utilizing the NCAA's trademarks. The NCAA even convinced NASA to cease the use of its bracket-style tournament entitled "Mission Madness," which allowed space exploration fans to vote on matchups of various NASA missions and included basketball icons within the bracket.

It is unlikely that anyone would think the NCAA is affiliated with or sponsors a bracket-style tournament of porn stars. Stated another way, there is no likelihood of confusion between the two entities simply by virtue of an adult website's punny use of the NCAA's trademarks. Rather, the NCAA's enforcement efforts are targeted at preventing dilution of its marks. And it is vigilant in its anti-dilution campaign.

In sum, unless you want to get beat worse than Hampton playing Kentucky, think twice before you start promoting your March Madness charity event, your Sweet Sixteen drink specials, or your Big Dance adult entertainer bracket, because the NCAA will not hesitate to lay the smack down.