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March Trademark Infringement Madness

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

With March just weeks away, attention will quickly move from the Superbowl to the NCAA basketball tournament.

In the past, the NCAA's Trademark Protection Office has been aggressive in defending the use of this "March Madness" and related trademarks. According to the Kansas City Star, the NCAA sends out "scores of cease and desist letters and sometimes sues." For instance, in March Madness Athletic Ass'n LLC v. Netfire Inc., the plaintiff, the NCAA-owned LLC that holds the NCAA's asserted common law rights to the "March Madness" mark, sought to stop the defendant from using the registered domain name marchmadness.com. The U.S. Court of Appeals for the Fifth Circuit upheld a district court award for the plaintiff. 120 Fed. Appx. 540 (5th Cir. 2005) (unpublished opinion).

Interestingly, the Illinois High School Athletic Association, which has used the term "March Madness" for its own basketball tournament since the 1940s, holds the federal trademark registration for the term. However, the 7th Circuit has excluded rights to the use of the term in connection with the NCAA tournament from the scope of IHSA's registered mark. IHSA v. GTE Vantage, 99 F.3d 244 (7th Cir. 1996).

This year, I've noticed once againt that many businesses are offering NCAA-themed products and services, some of which come close to using the NCAA's trademark. One of the more amusing offerings, via our local paper, comes from the medical group Genito-Urinary Surgeons Inc. The practice is offering "Vasectomy Madness" procedures in the days leading up to the Tournament. Surgery would include a doctor's note authorizing the patient to miss two days of work for recuperation, which would also facilitate some TV viewing. Similar services have been offered by other clinics in Oregon, Texas, and other states, as CNBC reported last year.

The practice group hasn't called its offering "Vasectomy March Madness", and its more limited use of only part of the NCAA's mark would likely be protected as parody. Since it's unlikely the NCAA itself will market such surgical services, the likelihood of consumer confusion seems low. See the "CHEWY VUITTON" case for guidance on the law.

Full post as published by Sports Law Blog on February 04, 2010 (boomark / email).