Mark Madness

Creative Commons from Chilli Head.
Creative Commons from Chilli Head

We now know the brackets for the NCAA tournament.  How people choose their winners can be everything from favorite colors to hours of study.  But two things are always certain during the tournament:  Upset wins and a crackdown on businesses using “March Madness” without permission.

Starting right around now, many companies are looking to cash in on the excitement that the NCAA basketball tournament brings.  Marketing the tournament can bring customers to purchase goods.  And the NCAA knows it.  They have at least 94 live trademarks registered with the USPTO, many of which are related to the men’s basketball tournament.  For example, MARCH MADNESSTHE ROAD TO THE FINAL FOURBRACKET TOWN and many more are trademarks owned by The National Collegiate Athletic Association (better known as the NCAA).*

The NCAA has developed licensing and marketing programs around these trademarks to control who uses the marks as well as reaping significant license fees. Such programs, in the NCAA’s words, are “carefully controlled and aggressively protected.” In other words, a lot of cease and desist letters get sent out each year, and occasionally, a lawsuit is filed.  According to the lawyer in charge of these trademarks, “hundreds” receive letters from him each year.  And I am certain he receives quite a bit of push back each year.  But is it fair that the NCAA controls the use of “March Madness” and the other marks?

The answer, in my opinion, is yes.  Why?  For several reasons.  First, the NCAA expends a lot of money and effort into creating recognition and goodwill in to its marks.  They should have the ability to control who uses their marks that they have built up to have value.

Second, companies using the marks do see an impact by using it.  If a bar advertising is “March Madness” specials, they see an increase in sales.  If an apparel company puts “The Road to the Final Four” on a t-shirt, more shirts are sold.  There is a value to putting these marks on goods and advertisements.  Why should a company who did not expend any money be able to reap the benefits of the NCAA’s work without the NCAA seeing any of that increase due to its marks?

Third, some companies do license the marks and share their increase in sales with the NCAA.  Without a protection process in place, those licensees (also called sponsors by the NCAA) lose the value.  The value of the mark decreases if freeloaders are allowed.

And fourth, the NCAA not only can get license fees from those they do allow to use the marks, they can stop those businesses they absolutely do not want connected to their association.  Marks are connected to their sources.  What feelings consumers have towards the mark owner gets transferred to the goods and services the marks are on and vice versa.  If the NCAA did not have a protection scheme in place, companies that the NCAA does not want connected to college sports would certainly use the marks.  And the NCAA, regardless of the license fee willing to be paid, is unlikely to want to be tied to strip clubs, marijuana dispensaries, or other companies that do not with ally with “the purposes and objectives of the NCAA, its member institutions and conferences and higher education.”

Now can companies go overboard trying to protect their marks? Sure.  Are some of their measures ripe for skewering? Absolutely (see Steven Colbert’s approach to Super Bowl restrictions.)  But that is question of how to proceed with protecting the mark, not whether or not it can be protected.  Therefore, be as respectful of other’s marks as you would like them to respect yours.  If you are going to use the mark, be prepared to pay the market rate.  Otherwise, use something else to advertise your excitement around the brackets or be prepared to pay for help from your fairy godmother in your very own Cinderella story.

*The NCAA hasn’t always owned MARCH MADNESS.  In 2011, the NCAA paid $17.2 million to have sole ownership.