Each year, as the NCAA basketball tournaments get underway, my colleague Mitch Stabbe highlights the trademark issues that can arise from uses of the well-known words and phrases associated with the games in advertising, promotions, and other media coverage. Here is Part I of his review. Look for Part II tomorrow.

This is my tenth annual column for the Broadcast Law Blog on the subject of the potential pitfalls to broadcasters in using the NCAA’s FINAL FOUR and other trademarks or accepting advertising that use the marks.  I began last year’s post with the comment that the last few years had been filled with changes in college sports.  I also noted that the NCAA’s hard line against unauthorized uses of FINAL FOUR or its other marks had not changed.

As will be discussed below, looking back over the last ten years, it is clear that the value of the NCAA’s basketball tournament rights has, however, greatly changed, which helps explain the enduring efforts to challenge unauthorized uses of its marks.  Thus, broadcasters, publishers and other businesses need to continue to be wary about potential claims arising from their use of terms and logos associated with the tournament.

NCAA Trademarks

The NCAA owns the well-known marks March Madness®, The Big Dance®, Final Four®, Final 4®, Women’s Final Four®, Elite Eight®, Women’s Elite Eight®, Road to the Final Four® and The Read to the Final Four® (with and without the word “The”), each of which is a federally registered trademark.  The NCAA does not own “Sweet Sixteen” – someone else does.  However, the NCAA has a license to use the mark and has federal registrations for NCAA Sweet Sixteen®and NCAA Sweet 16®.

The NCAA also has federal registrations for some lesser-known marks.  Significantly, some of these marks use just one of the words from the Association’s best known marks, such as:

  • “Four” (And Then There Were Four®, First Four®, Four It All®, Frozen Four®);
  • “March” (March Is On®, March Muttness®); and
  • “Madness” (Midnight Madness®, Basketball Madness®, Spring Madness®.)

It also owns marks used in connection with its basketball tournaments that include none of these terms, such as The Big Dance®, And Then There Were Eight®, Selection Sunday®, The Road Ends Here® and 68 Teams, One Dream®.  The NCAA has also used (or licensed) variations on these marks without seeking registration, but it can claim common law rights in those marks, such as March Madness Live, March Madness Music Festival and Final Four Fan Fest.

Some of these marks are used to promote the basketball tournament or the coverage of the tournament, while others are used on merchandise, such as caps, sweatshirts, and jerseys.

Sometimes, the NCAA files a trademark application on the basis that it intends to use a mark.  If the mark is ultimately registered, the NCAA will have priority over anyone using that mark (or a confusingly similar mark) after the filing date of the application.  In other words, although the NCAA currently does not have any rights in such marks, anyone who chooses to use them runs a significant risk of liability down the line.

Although the NCAA may use the federal registration symbol (®) with any of its federally registered marks, it is not obligated to do so.  Thus, it should not be assumed that the lack of the symbol with any particular trademark means that the NCAA is not claiming trademark rights.

The NCAA Aggressively Pursues Unauthorized Use of its Trademarks

The NCAA’s revenue from its annual basketball tournament has long been the primary source of its annual income.  Historically, with the exception of 2020, when the tournament had to be cancelled, its revenues have grown each year.  For 2024, the licensing of television rights in the Division I Men’s Basketball Tournament resulted in approximately $960M in revenue for the NCAA, roughly 68% of its total revenue.  In contrast, for 2014, the figure was approximately only $700M.  The majority of this revenue is distributed to the various basketball conferences, which distributes the money to its individual members.

Although most of the NCAA’s tournament-related income is directly related to the broadcasting of the games, it also has a substantial amount of revenue from licensing March Madness® and its other marks for use by advertisers.  As part of those licenses, the NCAA agrees to stop non-authorized parties from using any of the marks.  Indeed, if the NCAA did not actively police the use of its marks by unauthorized companies, advertisers might not feel the need to get a license or, at least, to pay as much as they do for the license.  Thus, the NCAA has a strong incentive to put on a full court press to prevent non-licensees from associating their goods and services with the NCAA tournament through unauthorized use of its trademarks.  The NCAA’s most recent statement regarding its Trademark Protection Program can be viewed here.

The NCAA is serious about taking action against anyone who may try to trade off the goodwill in its marks – even if the NCAA’s marks are not actually copied in full.  As shown by the list of marks above, the NCAA has marks that include “Four,” “Eight” or “March,” combined with another word.  While this does not mean the NCAA can always stop people from using those words as part of any mark, it does show that, if a mark is used in a way that seems intended to create an association with the tournament or that is used during the tournament, the NCAA may act.

For example:

  • In 2017, the NCAA filed a trademark infringement action against a company that ran online sports-themed promotions and sweepstakes under the marks “April Madness” and “Final 3.”  The defendant stipulated to an order providing that it would cease using those marks at least until the end of the year, but the order did not provide for dismissal of the case.  The defendant failed to file an answer to the complaint and the NCAA was granted a default judgment, after which it filed a motion requesting an award of attorneys’ fees against the defendant in the amount of $242,213.55.  In May 2018, the Court found the infringement to be willful and awarded attorneys’ fees in the amount of $220,998.05.
  • In 2016, the NCAA challenged the use and advertising of a mark that was not necessarily be confusingly similar to an NCAA mark but was being used in a way to create an association with the basketball tournament.  Specifically, a urology clinic used and registered VASECTOMY MAYHEM for medical treatment services in urology for adults.  However, the mark was being used in basketball-themed advertising, e.g., an ad that suggested that March would be a good time for men to get a vasectomy because they would be sitting around watching games on TV, which they also needed to do to heal from the procedure, as well as an ad which merely showed someone balancing a basketball on one finger.  The NCAA sought cancellation of the registration and prevailed.
  • The NCAA sued a car dealership that had registered and was using the mark “Markdown Madness” in advertising.  (The case was settled.)
  • Even schools that are part of the NCAA are not immune from claims of infringement.  Seven years after the Big Ten Conference started using the mark “March Is On!,” the NCAA opposed an application to have that mark federally registered.  (Ultimately, the opposition was withdrawn, the mark was registered, but the registration was assigned to the NCAA.)
  • In addition, just in the last three years, the NCAA has opposed or obtained extensions of time to oppose applications to register the following marks:
    • MANGIA MADNESS (advertising services);
    • MARCH CONSULTING (college consulting services),
    • STREET MADNESS (automobile shows and car meets);
    • MARCH GREATNESS (charitable fundraising);
    • MAD MARCH (advertising, marketing and promotional services);
    • FINAL FRIDAY (bathrobes, masquerade costumes and assorted items of clothing, including sports jerseys);
    • MARSH MANIA (for seeds used to attract wildlife);
    • AUCTION MADNESS (for fantasy sports and games of skill contests);
    • MARCH MANIA (for performances and photography services in the field of marching bands);
    • MIDTOWN MADNESS (for downloadable video games);
    • MUGGINS MADNESS (for downloadable computer game software); and
    • POTION OF MADNESS (for video games).

It should be noted that, before these marks were published for opposition, Trademark Attorneys at the PTO concluded that each of these marks was not confusingly similar to any registered marks.  Some of these marks were not opposed and eventually were registered and others were abandoned, perhaps if only to avoid the substantial legal fees the applicant would incur in defending against an opposition.

These actions illustrate the level of importance that the NCAA places on acting against the use or registration of trademarks which it views as being likely to create an association with its annual Collegiate Basketball Tournament.  Clearly, such activities carry great risks.

Tomorrow, I will provide some specific examples of actions built around the tournament that could attract the unwanted attention of the NCAA and another issue to be considered in advertising or accepting advertising relating to the games.