We are in March, which means that the minds of many turn to basketball, specifically March Madness as the NCAA hosts its annual championship tournament to crown college basketball’s national champion. And many broadcasters want to take advantage of the tournament to promote their stations or the products of their sponsors. Because of this inclination, we post this warning each year (see, for instance, here and here) – just like we do around the Super Bowl or the Olympics – these championship names are trademarked, and the owners are active in policing and protecting their marks, as sponsors pay the NCAA big bucks for association with the championship – so be careful about using “March Madness” in promotions and advertisements, as these uses could bring trouble.
Each year, we get the question “is March Madness a trademarked term” or, as it is sometimes formulated, “is March Madness copyrighted” (in fact, in this context, when talking about the name which brands an event, we are talking about trademark law, not copyright). And each year we say “yes.” But what does that mean? That does not mean that your newscasters, sports reporters or morning DJs can’t talk about the tournament using the name of the event. Instead, what it means is that commercial uses of the term, that could imply some association with the event for which sponsors pay money, can be problematic – and could cause the NCAA and their lawyers to pay attention, and could cost you or your sponsor money or time defending the use. So the safest way to avoid issues is to avoid the trademarked phrase in promotions and advertisements.
Every year, when we post these warnings, we get some skeptical comments suggesting that we are making more out of these concerns than legally warranted. Some have suggested that advertisers who say “buy a TV so that you can watch March Madness and see every detail of the action,” where the store makes clear that they are not affiliated with the tournament or the NCAA, might be able to say “March Madness” as it is just using a fact that the tournament is coming up and does not in any way imply that the station or advertiser is truly affiliated with the games, or that the NCAA somehow endorses or is affiliated with the seller of the TV. While there may be ways to do that, how many stations or advertisers want to get into the business of parsing every ad to decide if the use of the phrase “March Madness” is permissible under trademark law or not, and how many want to have to go through the hassle of dealing with the NCAA and their attorneys if they disagree with the station or advertiser’s assessment that a commercial use is permissible? That is why some alternate formulation is so often used, as (unless you have an experienced trademark attorney on staff to review every ad) it is safest to simply avoid using “March Madness,” just like advertisers avoid using “Super Bowl” or “the Olympics,” in their commercial announcements.
So be careful out there, and enjoy the games – may your bracket not be busted, and may your legal budget avoid being broken as well.