“March Madness”

In between March coming in like a lion and going out like a lamb is the multi-week long American tradition known simply as NCAA “March Madness”. A time when both diehard basketball fans and non-sports fans alike spend hours filing out their brackets hoping to win this year’s pool. (It’s estimated that companies will lose over three billion dollars in productivity over the next couple weeks as their employees sneak out of the office early to catch some of the games.)

But just how big of a deal is the NCAA Tournament, and what are those magical words “March Madness” actually worth?

It’s often difficult, if not impossible, to determine the value of famous trademarks such as “March Madness” (that being said the NCAA paid over $17 million just to have the exclusive rights to use the mark in programing for mobile devices back in 2011). However, to put things in perspective, the NCAA Tournament is arguably the biggest sporting event in the United States. This year companies looking to partake in the madness will spend about $1.1 billion dollar in television ads alone (about three times the amount spent on the Super Bowl). Meanwhile Philadelphia (one of four cities to host the “Sweet Sixteen” and “Elite Eight” (both registered trademarks)) is expected to fetch $18.2 million; while Houston, the host of the fabled “Final Four” (also a registered trademark), is expecting upwards of $300 million of economic impact from the tournament.

Given these numbers, it’s not surprising that the NCAA is in the middle of a 14 year, $10.8 billion broadcasting deal with CBS Sports and Turner Broadcasting. All things considered, the NCAA Tournament accounts for roughly 90% of NCAA revenue (sorry football).

None of the above figures include the equally stunning numbers from brackets and betting. Las Vegas sources estimate $9 billion will be wagered legally on the NCAA tournament (with about $7 billion being illegal betting).

So given all of the hoopla (no pun intend), where did the term March Madness actually originate? While one might suspect a bunch of partners at an advertising agency coming up with the idea after an eventful St. Patrick’s Day; in reality the term was coined by Henry Porter as the title of a 1939 essay for the Illinois High School Athlete, describing the Illinois High School Association’s (IHSA) basketball tournament.

The IHSA officially began using the term in 1973 in conjunction with its tournament, claiming exclusive rights to it and even licensing the use of “March Madness” to the likes of Pepsi and Wilson Sporting Goods. However, the IHSA did not officially apply for a trademark registration until 1990.

Unfortunately for the IHSA, the NCAA began using the term March Madness in 1982 (eight years prior to the IHSA’s trademark application) to describe the NCAA Tournament and also begun licensing its use much the dismay of the IHSA.

As often happens when companies don’t register and/or police there trademarks, the courts had to step in and straighten things out. In Illinois High School Association v. GTE Vantage Inc., the courts decided that due to the IHSA not policing its rights, both the NCAA and the IHSA had rights to the mark “March Madness” despite the IHSA being the first to use the mark. In its decision the court ruled that the mark had acquired multiple meanings. Needless to say, someone at the IHSA was probably fired.

The IHSA and NCAA have since formed the March Madness Athletic Association, dedicated to suing infringers of the mark. While the parties were able to reach an agreement, the IHSA would have been in a much better financial situation had they registered and policed the mark at an earlier stage. The takeaway is simple: register and police your trademarks or you might lose a lot more than just this year’s office pool.

Try Not to Get Too High on a Clever Trademark

Try Not to Get Too High on a Clever Trademark

Colorado is the first state to legalize marijuana for non-medical sale and use. The state projects $578.1 million a year in marijuana sales from the over a hundred new businesses selling pot.

An Influx of Marijuana Trademarks

This myriad of new businesses opening up in the marijuana industry is a perfect illustration of how important it is for consumers to be able to identify the “high” achieving business over those with poor quality standards that are destined to “burn-out.” Businesses realize this and hence it is unsurprising that the legalization of pot has created a rush to the United States Patent and Trademark Office for those looking to register trademarks for new products and services related to the marijuana industry—marijuana trademarks if you will.

Some of the more interesting marks include: MJ Freeway for computer services for inventory control and management of medical marijuana; Giving Tree of Denver for use with retail services featuring clothing and lifestyle herbs including marijuana; MyBudTender for a mobile app that provides marijuana-related information; Colorado Weed Wear for use on clothing; and Pot is the New Gay for consulting services related to marijuana legalization strategies.

At Corridor Law Group we are experienced at helping our clients obtain protection for new marks and enforce their current marks. We also work with a network of marketing specialists to aid clients in creating and branding a new legally protectable trademark.

When considering a trademark, business owners need to understand that the protection a given mark will receive from the courts, and the likelihood that a registration will be granted from the USPTO, depends on, among other factors, where the mark falls on the “spectrum of distinctiveness” which runs from fanciful to generic.

Marks that are fanciful are “coined” terms, and generally receive the most protection. Examples of fanciful marks include Kodak, Starbucks, and Exxon. Similar to fanciful marks, and slightly lower on the “spectrum of distinctiveness” are arbitrary marks. Arbitrary marks are common words which are normally used in a way that has no relationship to the goods or services they are being used to identify. Possibly the most famous example of an arbitrary mark is Apple Computer. While fanciful and arbitrary marks are easily registered and protected, companies may be discouraged from using them since by their nature, they tell nothing about the product or services being offered.

Further down the “spectrum of distinctiveness” fall the suggestive trademarks. These are marks that allude to some quality or characteristic of the product or service, but are not merely descriptive. Examples or suggestive marks include Jaguar and Mustang for automobiles.

Even lower on the “spectrum of distinctiveness are descriptive trademarks. These marks are often chosen by companies as they are self-explanatory, but it should be noted that the scope of their protection is quite narrow. Examples of descriptive marks would include Carpetland for a carpet store or Famous Footwear for a shoe store.

Finally, at the far end of the “spectrum of distinctiveness” are generic marks. Generic trademarks occur when the mark used to identify the product is also used to identify the whole class of similar products. Although these marks are not protectable, an example of one would be using Apple to identify apples.

While creative branding is important, businesses should never forget that the purpose of a trademark is to serve as a source identification. Some of the most famous marks had no relationship to their related products. Although a creative trademark may at the fringes help sell an item, at the end a company’s success ride or falls on the quality of the goods and services it provides.

Props to 99designs for providing some nice "brand" examples (seen above) and holding up their end of the spectrum of distinctiveness: cheap marijuana logo design for companies.