By: Sharon Urias, Esq.
Even if you are not a college basketball fan, you probably have heard of “March Madness.” Every year in mid-March, sixty-eight (68) men’s college basketball teams from numerous major and mid-major athletic conferences from across the United States play in the NCAA College Basketball Tournament, with a goal of reaching the “Final Four” and winning the National Championship. It is an exciting time for sports fans, with thrilling games that have exhilarating buzzer-beaters, electrifying plays, extraordinary comebacks, and remarkable and startling upsets. Many fans compete with each other by filling out tournament brackets, predicting which teams are going to win games and the entire tournament. This flurry of activity takes place during two consecutive weekends, with the first weekend producing forty-eight (48) basketball games. The sheer amount of action-filled, single-elimination games played in such a short period of time is why the event has become known as “March Madness.”
Interestingly enough, the “March Madness” moniker did not originate with the NCAA. The Illinois High School Association (IHSA) first used the term decades before the NCAA began adopting the name for its own tournament. Ultimately the NCAA and IHSA came to an agreement to share the rights. With the NCAA having control over the name, it aggressively and vigilantly protects its “March Madness” trademark, likely one of its most valuable assets.
Enter game developer Kizzang LLC. Kizzang sponsors entertainment, games, sweepstakes, fantasy sports, and other contests through its web and mobile platforms and partners. In 2013, Kizzang launched its “Final 3” contest where contestants had to pick who would win the final three games of the NCAA College Basketball Tournament for cash prizes. And more recently in 2016, Kizzang collaborated with Sports Illustrated to facilitate a $25 Million bracket challenge in conjunction with the NCAA College Basketball Tournament.
Last week the NCAA filed a trademark infringement lawsuit over Kizzang’s online fantasy games called “April Madness.” The NCAA previously filed an opposition with the U.S. Patent and Trademark Office (USPTO) in 2015 to stop Kizzang from trademarking its “April Madness” phrase, and more recently in late 2016 when the fantasy game company tried to register the “Final 3” phrase, which the NCAA asserts is a blatant infringement on its own “Final Four” mark. In its lawsuit, the NCAA alleges that Kizzang’s infringement of “April Madness” and “Final 3” is being used in NCAA Division I Men’s Basketball Final Four based content through its apps.
The NCAA likely would fight Kizzang’s use of its similar marks regardless of the game company’s use, but in this instance, Kizzang is using the “April Madness” and “Final 3” marks in association with basketball tournament play, so the alleged infringing use appears to be that much more obvious.
And it is not just Kizzang. When it comes to the NCAA College Basketball Tournament, the NCAA is very protective of its trademarks, having filed an opposition with USPTO over the Big Ten’s attempts to register its “March Is On!” trademark.
For all the fun and enjoyment sports fans get out of the NCAA’s “March Madness” tournament every year, off the court, it is big business for many entities, not just the NCAA. For entrepreneurs looking to take part in some of the direct and indirect revenue streams from “March Madness” and the “Final Four,” it is important to conduct due diligence to ensure trademark violations do not occur.