Can I Use "March Madness" to Sell Products or Services?
Using a Trademarked Product or Service
At certain times of the year - as in March with NCAA basketball finals - businesses try to capitalize on the current excitement and use terms in their marketing efforts. Other examples might be "Black Friday" or "Cyber Monday" during the holiday buying season. But before you consider this type of marketing, you should carefully check to make sure these terms aren't copyrighted.
The term "March Madness" is trademarked and you can't use it in conjunction with a sports event or to sell something related to college basketball. Same thing with promoting your products or services related to events like the "Oscars" or "Emmys." The trademark lawyers for these organizations watch the Internet, mobile apps, and other advertising venues to find and prosecute violators.
Why Do Companies Pursue Trademark Infringements?
They have to. If they aren't diligent in stopping others from using their trademarks, they lose the rights to the trademark. Owners of trademarks must be vigilant to assure that the power of their trademark is not diluted or tarnished through outside uses. A good example is Harley Davidson motorcycles, which relentlessly pursues people who sell goods with Harley Davidson or "hog" knockoffs.
The LA Times says:
People or entities can't use the NCAA's marks to promote their products or services in a commercial way. That means no posters on doors of casinos inviting people to March Madness gamblepalooza, no Internet ads luring people to websites where they can buy unauthorized March Madness gear and no March Madness ads on websites trying to get people to bars or concerts or events that aren't NCAA sponsors.
News and editorial uses of the term "March Madness" or "Oscar" or others are exempt from the trademark restrictions. It would be a little difficult for sports reporters to report news from the NCAA's annual college basketball tournaments, for example, without writing or saying "March Madness." But I can't (and you can't) use a photo of the 2010 NCAA basketball tournament without permission.
If you're interested, Seattle Trademark Lawyer has a brief history of the trademarking of the term "March Madness."
How Do You Find out If a Term Is Trademarked?
The best place to check is to do a search on the U.S. Patent and Trademark Office (USPTO) website. Of course, if you see the ® for a registered trademark or a ™ for a trademark in the process of being registered, you know you must include the mark when you're referring to it, and that you must not use this trademarked phrase in a for-profit business. So, if you want to make money selling March Madness t-shirts or smartphone apps, think again.
I checked the USPTO database for March Madness and found a list of instances of this name. Some have been abandoned, but they are for specific products (one abandoned site was for the use of the name on cloth banners or towels). The legitimate March Madness trademarks are for a variety of products.
Following one link, I found a lawsuit against a company that tried to use marchmadness.com in ads for its services. The NCAA and March Madness Athletic Association sued the company and won.
What Happens If I Violate a Trademark?
Let's say you start a burger place called "Windy's." If the Wendy's organization finds out about it, the first thing that happens is that you would receive a cease and desist notice, which basically says, "stop using the name." If you continue to use the name, you would then receive a notice that you were being sued, and the litigation process (a lawsuit) would begin.
Are the Terms "Black Friday" and "Cyber Monday" Trademarked?
Since I was searching, I also wondered about other terms businesses might use for advertising purposes. I searched on "Cyber Monday" and "Black Friday" in the TESS database. When I searched on "Cyber Monday," I found some variations, like TGI Cyber Monday), but no specific trademark for this term.
When I searched on "Black Friday," on the other hand, I found several active trademarks. One was for a brewery, which included a symbol. Does this mean you shouldn't use "Black Friday" in your business ads? You may be able to purchase a license to use this term in your business advertising. I would check with your attorney before you do, to avoid receiving a cease and desist notice.