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We've written many times before about those big name events, like March Madness, the Olympics and the Super Bowl. Events that you and your advertisers are just dying to tie into your own local event – a sale, a party or maybe the introduction of some special new product or service. Well, like the Super Bowl, March Madness is a trademarked term, and you need to exercise care in its use. While the company that owns the trademark (a company partially owned by the NCAA) may not be as aggressive as the NFL or the Olympic Committees in protecting its rights, it can still be an issue should you start promoting your March Madness sale without permission and get caught.

When we wrote our usual warning about the use of the term "Super Bowl" in advertising earlier this year, I received one message asking if I worked for the NFL. A reader who obviously had trademark law experience complained that I was too cautious in urging broadcasters to avoid the use of the term Super Bowl in a commercial. The argument from the reader was that, if used in the right way, not to name an event but just to say something like – "buy a big screen TV so that can watch the Super Bowl, the Academy Awards and all the best television that is coming your way this year," your use of the term in a commercial could probably be justified should it be challenged. While that may be the case, making the distinction between this arguably permissible kind of use, and a more problematic use (like "come on down to Joe's electronics for our Super Bowl Sale on big screen TVs") is a nuanced issue. By avoiding the trademarked term in advertising, and instead sticking with something more generic – like "it is tournament time again, and you can watch all the action with a new big screen TV from Joe's Electronics" - avoids any of the issues that might arise if you use the trademarked term in your commercial.

Obviously using "March Madness" in passing in your news, talk or entertainment programming is not going to get you into trouble. But using it as a branding term – trying to pass your station off as your "official March Madness station" or an advertiser suggesting that they were "the March Madness restaurant" are much more likely to cause harm by trying to suggest an official connection between the product or service being sold and the trademarked term.

And, as we write each time that we do one of these articles, the issue is one of trademarks or service marks, not copyright. There is a copyright in the telecast itself, but the limitations on the right to use the name comes from trademark law.

Best of luck with your brackets, and with staying out of trouble on your basketball-themed commercials in the coming weeks.

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Like "Super Bowl," "Olympics" and "NASCAR," "March Madness" is also a term that is protected by trademark law, and its unauthorized use in commercials could result in legal liability.  But the development of March Madness is a bit more interesting, and you can probably thank Brent Musburger for that.  The Illinois High School Association (IHSA) has been using the term "March Madness" to describe its state high school basketball tournament since the early 1940's.  Broadcaster Brent Musburger went to journalism school in Chicago, then worked for both a Chicago newspaper and television station, where he almost certainly covered that basketball tournament and was well aware of the term "March Madness."  When he later began covering the NCAA basketball tournament for CBS in 1982, he naturally began referring to that tournament as "March Madness" as well.

As you know, the term caught on.  It ultimately led to a trademark infringement suit in 1996, and that led to a joint venture between IHSA and NCAA, called the March Madness Athletic Association (MMAA) which now holds all trademark rights to the term "March Madness."  In fact, they own 15 federal registrations containing that term, covering everything from the actual tournaments to broadcasting and webcasting the tournaments to mugs, T-shirts, towels, and even carbonated soft drinks.

Although MMAA has not been as aggressive as the NFL in pursuing third parties who use the term "March Madness" without authorization and it is not protected by federal statute like "Olympics," the use of this term for commercial purposes without permission from the MMAA is trademark infringement and should be avoided.  As intellectual property owners are becoming increasingly protective of their rights, use of any intellectual property without consent can be dangerous.  

On the other hand, there is no law against using the term "March Madness" on the air to identify the NCAA basketball tournament that begins next week in discussions of the tournament in news, sports and talk programs, since that is the very thing the trademark describes.  What you should NOT do, however, is use that term in a commercial context to promote some other service or product, whether it is car sales, electronic stores, or anything else, as "March Madness."  While such use may or may not result in a legal action, the bottom line is that it could result in liability and that is a risk no station should take.

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Getting legal education from a fake news program is always dangerous, but a recent episode of the Stephen Colbert Show, here, nicely demonstrated trademark law.  The clip illustrates what we have written before, that the term "Olympics", like "Super Bowl" and "March Madness" are trademarked, and attempts to use them in commercials or promotions, or to otherwise imply that a product or program is associated with one of these events, can lead a broadcaster into legal trouble and potential liability.  The Colbert program shows Stephen discussing with his brother, a trademark lawyer, Stephen's ideas for associating his program with the Olympics and, when his brother consistently rejects the plans, Colbert tries to change the 5 ringed Olympic symbol to five interlocking triangles, and other symbols that are similar, and Colbert is told that each is likely to bring a lawsuit.  Only when Colbert abandons the Olympic name, and the symbols, and comes up with a name - The Quadrennial Cold Weather Athletic Competition - that is the equivalent to the "Big Game" that many use when referencing the Super Bowl, was the brother satisfied that Colbert would not get successfully sued.  Stations should take similar precautions when thinking about using these terms in their programs.

Using the trademarked word or phrase in news reports about the event, or in other commentary, is in many cases just fine.  But trying to imply an endorsement or connection to the event for which true sponsors pay "big bucks", can get you into trouble, as explained by Mr. Colbert.  Thus, just as we looked to Colbert for examples of how music licensing works, and on when a candidate becomes legally qualified, he illustrated another legal concept.  When will we next look to Mr. Colbert for an explanation of the law?  Stay tuned.

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With the Super Bowl and the Winter Olympics less than 2 weeks away, and March Madness not far behind, we once again need to remind our readers that all three are trademarked terms, meaning that their use, particularly for commercial purposes, is limited.  We've wrote here last year about the use of the term "Super Bowl" in commercials, and about the use of "Olympics" two years ago (here).  Our warning then bears repeating now - the trademarked terms should not be used in commercial messages except by authorized advertisers.  These advertisers have paid big bucks to be able to say that they are an Olympic sponsor, or that they are having a Super Bowl sale.  The holders of these trademarks enforce them rigorously (so that they can get the big bucks from the official advertisers), so don't risk their use without official permission.  See our Super Bowl post from last year for details on how to refer to these events without running afoul of trademark limitations.

As we wrote last year, this does not prevent all use of these terms.  News reports about the events can still be given.  DJs can still chat about who is going to win the Super Bowl, or about the latest judging controversy in Ice Dancing at the Winter Olympics.  But don't try to commercially exploit these terms (e.g. saying that you are "Springfield's March Madness station") unless you have really paid for the rights to use the trademarked term.  Be careful, as a cute promotional idea can end up costing your station far more than you intended. 

Note - 1/29/10 - We have had many questions since we first posted this entry, including the question as to whether the words "Super Bowl", "Olympics" and March Madness" are really "copyrighted" so they can't be used in local commercials.  While we hate to be too legal about it, but the issue discussed above is one of trademark, not copyright law.  Copyright covers creative works - movies, books, songs, etc. - while trademark covers the commercial use of words or symbols to represent a product or service, which is what the use of these words are - the identification of the particular events. 

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