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Bold Move! March Madness Has Come To An End, But Will The Term Ever Burn Out?

Another year has passed and another March Madness in the books. I would like to extend congratulations to Roy Williams and the North Carolina Tar Heels for a sixth national championship. I would also like to extend thanks for nothing to Villanova for ruining my bracket. Every year March Madness is one of the must-watch sporting events. Whether you are rooting for your favorite team to cut down the nets, or trying to win your office pool, it is hard not to tune in. For the NCAA, March Madness is its most profitable business, earning roughly $900 million in revenue each year. With so much money at stake, it is unsurprisingly the NCAA and their broadcast partner CBS try to put together the perfect experience each March. Every moment from Selection Sunday to the song “One Shining Moment” has been carefully crafted together. Predictably the actual term, “March Madness” is even safely guarded by the NCAA. You may have gathered from the media, with the round about way to describe the tournament, that the terms “March Madness,” “Elite 8,” and “Final Four” cannot be used in promotions and advertisements unless they are by an official sponsor. But, did you know the NCAA didn’t even come up with the term “March Madness?”

Henry V. Porter, an executive secretary for the Illinois High School Association (IHSA), first used the term in 1939 to describe the Illinois high school basketball championship. “A little March madness may complement and contribute to sanity and help keep society on an even keel,” he wrote in Illinois Interscholastic, the IHSA magazine. In 1942, Porter later wrote a poem titled, “Basketball Ides of March.” The poem stated,

“The Madness of March is running.

The winged feet fly, the ball sails high.

And field goal hunters are gunning.”

By the mid 1940’s, the term gained traction and became the unofficial nickname for the basketball tournament. In 1973, the IHSA started to use the term officially on their merchandise and programs. The IHSA during this time also registered the trademark “March Madness” and “America’s Original March Madness.” The IHSA also began licensing the term and would charge other states 10 dollars to use the name in their tournament. It wasn’t until 1982 when announcer Brent Musburger, a Illinois native, mentioned “March Madness” during a broadcast that the term was used in a NCAA tournament. The term quickly took off and the NCAA began licensing it as a trademark.

The two organizations both claiming to have exclusive control of the term finally collided in the 1998 case IHSA v. GTE Vantage, 99 F.3d 244, 247-48 (7th Cir. 1996), when IHSA sued video game developer GTE Vantage Inc. over its plan to release a “March Madness” game under a trademark license from the NCAA. The Court ruled that IHSA waited too long and let “March Madness” identify not only the IHSA tournament, but also the NCAA tournament. The court also characterized “March Madness” as a dual-use term, allowing the IHSA and the NCAA to co-exist in using “March Madness” to refer to their respective basketball tournaments. Not wanting to lose their trademarks all together against competitors and infringers, the IHSA and NCAA teamed up in a joint venture to create the March Madness Athletic Association (MMAA).

In March Madness Athletic Association LLC v. Netfire, Inc., 120 Fed. Appx. 540, 544 (5th Cir. 2005) the MMAA had to prove the term “March Madness” did not become generic and merely was a dual use term. A trademark becomes generic when a trademark that used to refer to a particular product is now used to describe a whole group of products. For example Aspirin, escalator, app, zipper, Frisbee, and Tupperware all lost their trademark after becoming generic. The case was ultimately resolved in the MMAA’s favor, after the Fifth Circuit upheld the ruling marchmadness.com would create customer confusion and that “March Madness” was a descriptive term, which had acquired secondary meaning, and was therefore protectable as a trademark. “March Madness” may one day lose its trademark after becoming generic, but in the mean time as Henry V. Porter would say enjoy the “Happy Madness of March.”

Author: Chris Mayle, Patent Attorney

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