Why the NCAA sues over the use of ‘March Madness’

By Ross Crowell, Law Library Sports Law Correspondent

As the men’s NCAA Tournament just wrapped up with Kansas taking down North Carolina in the National Championship, one interesting legal issue that often arises around the tournament is the NCAA’s trademark on the term “March Madness”.

Image by Nick Youngson CC BY-SA 3.0 

The NCAA has “aggressively protected” its trademarked marketing programs, including “March Madness”. The first time the phrase was first used as a reference to the NCAA Tournament was in 1982 by announcer Brent Musberger. The NCAA attempted to trademark the term in the 1990s, but the term was already trademarked by the Illinois High School Association, which previously purchased the term’s trademark rights from a Chicago television company. 

The Illinois High School Association ended up suing an NCAA licensee to enjoin it from the use of the term. However, the NCAA won, as the Seventh Circuit found that “March Madness” had become a dual-use term, as it could reference both the Illinois High School Association and NCAA basketball tournaments. While both associations used the term for a period of time, the NCAA ended up buying out the Illinois High School Association’s ownership of the trademark. 

Along with “March Madness”, there are several other basketball tournament terms that the NCAA has trademark protection over, such as “Elite Eight”, “Final Four”, “68 Teams, One Dream”, “March Mayhem”, “March to the Madness”, “Road to the Final Four”, “Selection Sunday”, “The Big Dance”, and even “Read to the Final Four”, among many other terms. Thus, the use of the term “March Madness” or any of these other NCAA trademarked terms requires NCAA approval. 

As the NCAA has trademark rights to this term, that means the term cannot be used as a catchphrase by anyone else, even in an unrelated industry. For example, a local country club could not promote a golf tournament under the name “March Madness”, despite the event being completely unrelated to the NCAA basketball tournament. 

While it is impossible for the NCAA to find every commercial use of the term in violation of its trademark protection, the NCAA often sends cease-and-desist letters to owners of bars, restaurants, and other companies that are using the trademark without a license.

The NCAA strictly enforces potential trademark infringements in order to maintain the rights to their trademarks. If the NCAA does not enforce protection of their trademarked terms, they could lose the rights to their protected use of the terms. For example, the terms “thermos”, “yo-yo”, “laundromat”, and “hacky sack” were once trademarked, but became revoked once the terms became generic due to not being protected by the terms’ owners. 

Thus, while the NCAA may appear aggressive for vigorously protecting the use of “March Madness” and other trademarked terms, they police the use of the term in order to maintain their trademark privileges. The NCAA likely does not want “March Madness” to become a generic term, so it must enforce the use of the term, even if the use by other parties does not impact the NCAA’s business interests. 

The Real 8,000,000th

Patent DrawingEarlier this week the US Patent and Trademark Office (USPTO) granted  patent number 8,000,000 to Second Sight Medical Products Inc. for a device that helps people with degenerative vision problems to see better.  It’s certainly a far cry from patent number one granted after the Patent Act of 1837 for enhancements to locomotives wheels.

Now I don’t want to crash anyone’s party, namely the USPTO’s party at the Smithsonian American Art Museum on Sept. 8, 2011 recognizing granting patent number 8,000,000, but patent number 8,000,000 is not actually the 8,000,000th patent granted. It is worth noting that patent number one is not the first US patent issued.  Rather there were around 9,900 patents issued prior to patent number one. These patents were originally unnumbered; however, the USPTO has since gone back and numbered the surviving early patents, prefacing the number with an “X”. Today these patents are commonly known as the X-Patents. That being said I am unaware of these patents having any special mutant abilities, save an immunity to fire. Unfortunately less than 2,000 of the early patents survived the patent office fire of 1836.

So the US actually issued its 8,000,000th patent about 9,900 patents ago and with an eye to being  more precise and giving credit where credit is due, I propose here that we instead recognize Mitsubishi Heavy Industries, Ltd.’s patent for a Battery control device for hybrid forklift truck —US PAT 7,990,100– as the closest thing we will ever come to a 8,000,000th US patent.

So please join in the USPTO celebration on September 8th but also have a drink in the name of Mitsubishi Heavy Industries, Ltd 8,000,000th US patent and X-Patents.