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March Madness, The Big Dance and Trademark Infringement

March Madness tipped off today, but the full court press against alleged infringers of NCAA trademarks started long ago.

The LA Times reports that according the lawyers for the NCAA, the economic downturn and increased internet options have resulted in more people trying to turn a buck off the NCAA's trademarks. These trademarks include March Madness, The Big Dance, Elite Eight, Final Four, and a slew of others.

Some of these phrases had long histories prior to NCAA use. For example, as explained by Slate, March Madness was coined in 1939 by Henry V. Porter in relation to Illinois high school basketball. Legal wrangling between the Illinois High School Association and the NCAA resulted in a sort of joint ownership, with the NCAA being able to stop others from using it in relation to college basketball.

So, what exactly constitutes trademark infringement? Trademark infringement is commercial use of a trademark that is likely to cause confusion amongst consumers as to the source of the goods or services being sold. Commercial use typically means earning or soliciting some sort of income from use of the trademark. Off-shoots of the trademark (like March Badness) would also be off limits if they are close enough to still cause consumer confusion about the source of goods or services.

If a trademark is found to be "famous," its owner can sue for trademark dilution, even if there is no likelihood that consumers will be confused. Dilution means commercial use that decreases the value of a famous trademark through "blurring" or "tarnishment." Blurring means causing a famous trademark to become associated with different goods or services. Tarnishment means causing it to become associated with something inferior or unseemly.

• NCAA Trademarks
• NCAA Trademark Protection Program
• Crackdown by NCAA's trademark police is Madness?
• Trademark Overview (provided by Wang, Hartmann, Gibbs & Cauley, PC)
• What to Expect When You're Expecting to Be Sued for Trademark Infringement (Chilling Effects)

Full post as published by FindLaw's Common Law on March 19, 2009 (boomark / email).