Has the NCAA Gone Mad?
With the month of March upon us, the National Collegiate Athletic Association continues to tighten the reigns on its notorious trademarks. The NCAA has trademarks on sixty-seven phrases including “And Then There Were Four,” “Dribble,” “Final Four,” “Final 4,” “The Big Dance,” and “Selection Sunday.”[1] The most valuable trademark is “March Madness”[2], as over 85% of the NCAA’s yearly budget comes from the advertising and marketing of its three-week basketball tournament.[3]
The history of the phrase begins in 1939, when Henry V. Porter used “March Madness” to refer to Illinois’s annual high school basketball tournament. The phrase was picked up by reporters, and soon became a popular nickname for the tournament. It remained a regional sensation until 1982, when broadcaster Brent Musburger used the phrase on-air when calling a game for CBS.[4]
In March of 1989, Intersport CEO Charles Besser[5] filed a “March Madness” United States Trademark Application for “entertainment services, namely, presentation of athletic and entertainment personalities in a panel forum.”[6] From there, the NCAA, Besser, and the Illinois High School Association fought tooth and nail for the trademark. The litigation concluded with a two-part settlement: the Illinois High School Association gave the rights to “March Madness” to the NCAA in 2000[7] and the NCAA agreed to pay Intersport $17.2 Million for full rights to the phrase in 2011.[8]
The trademark on March Madness has become a true asset of the NCAA, which the organization aggressively protects. In January alone, the NCAA was involved in two large lawsuits with two companies in two different states. On January 28th, the NCAA began a civil action in the Central District of California against Vince Dixon Ford, a Southern California car dealership owner, for using the phrase “Markdown Madness.”[9] They claim “Defendants’ mark is confusingly similar to the trademarks registered and used by the NCAA, and Defendants’ use is therefore in violation of the NCAA’s rights.”[10] On January 30th, U.S. District Judge Jane Magnus-Stinson of the Southern District of Indiana entered a default judgment in favor of NCAA against Kizzang LLC.[11] That lawsuit began in March 2017 when NCAA sued Kizzang and the CEO Robert Alexandra for “trademark infringement, trademark dilution, and unfair competition related to Defendants’ alleged use of marks ‘Final 3’ and ‘April Madness.’”[12]
It’s easy to argue that the NCAA is being a bully. An average person would not confuse a car dealership “Markdown Madness” with one of the most well-known phrases in sports “March Madness.” Certainly, we could all tell the difference between “April Madness” and “March Madness.” But then again, if you had to shell out over $17 million for an item, wouldn’t you be aggressively protective over it? Isn’t that a tenant of trademark law? “As it is a symbol of good will, to the marketer of products in a competitive society, the trademark is an indispensable means of advertising.”[13] As mentioned earlier, March Madness accounts for 85% of the NCAA’s yearly advertising and marketing budget. Goodwill is the cornerstone of trademark law, and perhaps the NCAA is protecting their most prized asset.
Footnotes
