Yesterday, I’ve written about the history of the NCAA collecting rights to an array of trademarks. associated with this month’s basketball tournament. Today I’m going to give some examples of activities that may bring unwanted attention from the NCAA to your ads or ad serving, as well as another issue to consider when deciding whether or not to accept advertising.
Activities that may result in a formal notice letter from the NCAA
The NCAA recognizes that media entities may sell advertising that accompanies the entity’s coverage of NCAA championships. However, similar to my discussion last year about the use of Super Bowl trademarks (see here) and my 2018 discussion on the use of Olympic marks (see here), unless authorized by the NCAA, any of the following activities may give rise to a cease and desist request:
- accept advertising referencing the NCAA, the NCAA Basketball Tournament, March Madness, The Big Dance, Final Four, Elite Eight or any other NCAA mark or logo (the NCAA has published a list of its brands here.)
- Example: An ad from a retailer with the headline “Buy a new big-screen TV in time to watch March Madness.”
- Presumably, to avoid this problem, some announcers used “It’s tournament time!” »
- local programming that uses an NCAA trademark in its name
- Example: A locally produced program previewing the tournament titled “The big dance: choose a winning support.”
- sell the right to sponsor a broadcaster’s, website’s or print publication’s overall coverage of the tournament
- Example: during the sports segment of the local news, present the section of the report on the progress of the tournaments as: “March Madness, presented by (announcer name).”
- sweepstakes or giveaways that include an NCAA brand in its name (see here)
- Example: “The final four contest.”
- sweepstakes or giveaways offering tickets to a tournament match as a prize
- Example: Even if the name of the contest is not an issue, offering game tickets as prizes will raise an objection from the NCAA due to language on the tickets prohibiting their use for such purposes.
- events or parties that use NCAA branding to attract guests
- Example: A radio station sponsors a happy hour during which fans can watch a tournament game, with all NCAA branding prominently placed on signage.
- advertising that wishes or congratulates a team, or its coach or players, for its success in the tournament
- Example: “(Announcer Name) wishes (Coach Name) and (Team Name) success in 2022 in the NCAA tournament! »
There is another common pitfall unique to NCAA basketball: tournament brackets used in office pools where participants predict the winners of each match before the tournament. The position of the NCAA (see here) is that unauthorized placement of advertising In an NCAA bracket and a company’s sponsorship of a tournament bracket is misleading and a violation of its intellectual property rights. Accordingly, it states that any advertising must be outside the parenthetical space and must clearly state that the advertiser or its goods or services are not sponsored, endorsed or otherwise associated with the NCAA or its championship tournament.
It should be noted that the NCAA also imposes strict rules regarding the allowed uses of its trademarks. The NCAA’s advertising and promotional guidelines regarding permitted use of its trademarks are posted online (see here).
Once again, and this is important, none of these restrictions prevents media companies from using any of the marks to provide usual media coverage or comments about the tournament. Just make sure they are only used to identify the tournament and its stages, and in no way imply that there is any association between the station itself or any sponsor or advertiser who does not have the right to claim such an association and the NCAA.
A surprising story of “March Madness” (for those who like sports quizzes)
The NCAA may not have been the first to authorize the use of “March Madness.” Beginning in the early 1990s, the IHSA authorized its use by other state high school basketball tournaments and by corporations.
Additionally, the NCAA is not behind the use of “March Madness” to promote its college basketball tournament. Rather, a CBS broadcaster is credited with first using “March Madness” in 1982 to describe the tournament. Because CBS was licensed by the NCAA to broadcast the tournament, the NCAA apparently claims that this is the date of its first use.
Finally, the NCAA was not the first to register “March Madness” as a trademark. That honor went to a company called Intersport, Inc., which used the mark for the sports programs it produced and registered the mark in 1989.
So how did the NCAA claim ownership of March Madness?® trademark? The short answer involves litigation and negotiations over a period of years. Although he was also able to secure federal entries for the Final Four® and Elite Eight,® It was late at the door and Sweet Sixteen® and sweet 16® are registered with the Kentucky High School Athletic Association (KHSAA). (The NCAA, however, has consent from the KHSAA to record the NCAA Sweet Sixteen® and NCAA Sweet 16®.)
The final score
Having invested so much in its trademarks, the NCAA takes control of its trademark rights very seriously. Even so, even if the NCAA can call it a “foul!” and send a cease and desist letter regarding the types of activities discussed above, some claims may not be compelling because there may be arguments to be made on both sides of these issues.
If you decide whether or not to opt out of accepting advertisements incorporating any NCAA mark or logo or to use any NCAA mark or logo other than in the context of tournament reporting, or if you are not unsure whether the NCAA (or anyone else) owns a particular word or phrase as a trademark, you should seek assistance. An experienced trademark attorney can help you make an informed decision about whether you can successfully defend yourself against such an accusation and assess the possible risks.
One final publicity issue: endorsements from individual student-athletes
After many years of litigation, in July 2021, the NCAA suspended its policy prohibiting college athletes from profiting from their names, images and likenesses (“NIL”) (or their right to publicity) without losing their eligibility. However, there are no national rules as to what is allowed. Rather, the right of publicity is governed by state law. Additionally, colleges and universities always have the right to establish certain rules or standards. For example, although student-athletes can now be paid to promote a commercial product, they are not automatically allowed to use NCAA or school trademarks. So a college basketball player cannot be allowed to wear his uniform in advertising unless the school has given permission. Can the player wear a uniform with the school colors, but without a name or logo? Can the player endorse an alcoholic product? Answers will vary from state to state and school to school, so it will be extremely important to check with an experienced advisor before airing any advertising involving college players.
