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  • David Vance

The Madness of March is Upon Us

It is March and phrases and words like March Madness® and Bracketology have reentered our vocabulary. Many of us have our favorite team (O..H…) and some of us a second favorite (Wahoowa). Some of us still print out our brackets and write in our picks. The photo above shows a folder containing every bracket I have filled out, starting in 1989 (with an inexplicable miss in 1998). This all started when I was in college and was sent home with mononucleosis. Back then, the TV coverage was not 24/7, but there were still plenty of games to watch as I convalesced. I have been hooked ever since.

The inside cover of the folder shows my records and points for each of the past 30 years. I would not say I am strong in “bracketology.” What I am is a traditionalist. I assign point values that double for each round (1-2-4-8-16-32). My scores have ranged from a low of 49 (2006, ouch) to 134 (2001 where I had 3 of the Final Four® correct including correctly picking the champion-Duke (ugh)). And my picking record ranges from a low of 33-30 (2010) to a high of 47-16 (2008).

So, what is the IP angle here? Trademarks! Turns out, the NCAA has been busy filling its stables full of NCAA basketball tournament-related marks. If you want to advertise March Madness® at your bar or sell Final Four® or The Final Four® (Buckeye fans always appreciate a “The”) merchandise, you are going to need permission from the NCAA. If March Mayhem® gets you excited about the Elite Eight® or The Big Dance®, just remember the NCAA owns many of these phrases for certain uses, particularly around basketball tournaments and associated paraphernalia.

An interesting quirk about trademarks is that trademark rights are mostly tied to the specific goods recited in the registration. This means that if you use “March Madness” for example for something entirely unrelated to the goods for which it has been registered (e.g., cups or mugs, carbonated soft drinks, computer games or applications, clothing, programs, basketballs, etc.) and/or have been using “March Madness” prior to the NCAA’s trademark registration thereof, then the NCAA might have a tough time shutting you down. A friend of mine pointed to the annual Hillstriders March Madness Half Marathon, which of course uses “March Madness” in its name. This half-marathon was established in 1978, one year before the NCAA’s earliest assertion of first commercial use of March Madness®. In addition, it is a March Madness Half-Marathon, which does not seem related to the goods defined in the NCAA registrations. Consequently, my friend tells me that the NCAA was unable to block the Hillstriders from using “March Madness” in their race name.

Our Dance through Mayhem and Madness would not be complete without at least a mention of Vasectomy Mayhem®, a registered mark owned by the Virginia Urology Center in Richmond, Virginia. The mark is registered for urology services. Somehow the NCAA did not find this mark funny and creative. Last month, the NCAA filed a cancellation motion with the USPTO to cancel the mark. The NCAA cited its March Mayhem®, March Madness® (8 of them), Munch Madness®, and Midnight Madness® marks in its cancellation filing. We will have to wait and see how this litigation proceeds.

May your brackets hold strong and your champion cut down the nets in Indianapolis!

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