It’s a wonderfully maddening time of year.  “Selection Sunday” (all 2+ hours of it!) is in the rear view mirror, collegiate teams are scurrying off for their opening games, and millions of basketball fans are spending countless work hours filling out those brackets.  Ah, March is back!  And now is a perfect time for the court monitors here at TheTMCA.com to provide a few helpful reminders about promotional activities.

It is no secret that the NCAA is diligent and aggressive in enforcing its trademark rights.  So, to help keep you and your business from getting a “technical,” we’ve assembled a short roster of words and short phrases you may want to avoid in your advertising and promotional activities for the next few weeks.

1. Do Not Use “March Madness.”  Like it or not, March Madness is a registered trademark—many times over—and it’s owned by the NCAA. It is aggressive in policing against its unauthorized use.   Is “March Mayhem” any safer?    The NCAA owns  March Mayhem, too.  “The Big Dance?” Nope.  It’s registered multiple times and several of those registrations are incontestable.  Instead of using any of the above, the best practice would be to use something more mundane and truly descriptive like “The Tournament” or “College Basketball Championships.”
2. But “Final Four,” “Elite Eight” and “Sweet Sixteen” are Fair Game, Right?  Don’t bank on it.  “Final Four” is a registered and incontestable mark for a variety of goods and services.   So too is “Elite Eight” and “Women’s Elite Eight,” for that matter.  “Sweet Sixteen” may not be as clear cut.  On the one hand, the NCAA has recently filed applications for “NCAA Sweet Sixteen” and “NCAA Sweet 16.”  That may signal it would take exception to the use of  just “Sweet Sixteen” too, at least in so far as it is used for some sort of basketball-related promotion.  On the other hand, “Sweet Sixteen” is a registered trademark for clothing and other athletic goods owned by none other than the Kentucky High School Athletic Association.
3. What about a “Bracket Buster” Promotion? A couple of years ago, this might have been an issue as the mark was registered by ESPN, but “BRACKETBUSTERS” was cancelled back in April 2014 because nobody filed a Section 8 declaration.  Of course it’s always possible ESPN could still be claiming common law rights, so the lack of a registration is not necessarily a slam dunk in your favor.  Also, just so you are not caught unawares, the NCAA has opposed two trademark applications for “Brack Attack” and “Don’t Let One Team Bust Your Bracket.”  The NCAA did not cite any registered marks in its opposition, but indicated that it owns trademark rights to “images of brackets, and marks consisting of or referring to the term.”  Those proceedings have been suspended while the parties engage in settlement discussions.
4. What About Fair Use?  Don’t fret.  The concept of trademark “fair use” is not riding the pine during the month of March.  But as we’ve previously explained in a prior post, fair use will not protect the use of a third party’s trademark if that use suggests a connection with, or sponsorship by, that third party.  So, remember to bear that in mind.

March can cause mental anguish when one is trying to figure out what type of promotions can be run.  You may want to be conservative in your promotional endeavors so that you don’t foul out. As you fill out your br**** and dream about that Sw*** Si***** promotion you are going to run, bear in mind that the NC** will likely take exception with any form or use of Ma*** Ma*****, including Ma*** May*** or even The B** Da***.  Good luck with your team’s march to the Fi**** Fo**!