NCAA and Copyright and Trademark and Law and Sports Business

NCAA dominates ownership of such familiar terms as 'March Madness,' 'Sweet Sixteen,' 'Elite Eight,' 'Final Four'

March 16, 2009
With the NCAA basketball tournaments in full swing, Hoosier basketball purists are quick to point out the blueprint of the tourney, including many of the fabled monikers, can be traced to the grand old Indiana high school tournament.

However, the intellectual property that goes with it, namely the catchy trademarks we hear over and over this time of year, is another story.

Basketball scholars and the legal system have recognized that the term "March Madness" actually started with the Illinois High School Association. In 1938, one of its officials said in an association magazine article titled "March Madness" that, "A little March madness may complement and contribute to sanity and help keep society on an even keel."

Actually, March Madness kept a low profile until 1982, when CBS broadcaster Brent Musburger began using the phrase during the tournament.

In 1989, the Illinois association applied to trademark "March Madness," then sued the powerful NCAA on the use of the term. The NCAA contended it had a common-law trademark on the phrase, so could use it as it chose.

The courts sided with the NCAA, but with language vague enough to leave the door open for appeals. Rather than continue to duke it out in court, the organizations formed a holding company — the March Madness Athletic Association.

The Illinois association controls use of the phrase at the high school level, and the NCAA has the much larger (and much more lucrative) collegiate use.

"Sweet Sixteen," another NCAA staple, surely must belong to the Hoosier State. But it doesn't.

Indiana sports scribes indeed used the phrase for generations to describe the 16 teams that won their regional tournaments, thus moving on to the semi-state. In fact, in the early years of the Indiana tournament, the finals actually featured 16 teams, not the four commonly known for so many years before class basketball.

The terms "Sweet 16" and "Sweet Sixteen" were trademarked in 1988 by the Kentucky High School Athletic Association which, like Indiana at the time, had a one-class, winner-take-all basketball tournament for boys and girls. And of course by that time the NCAA and CBS were using the phrase to describe teams that survive the first two games of their tournament.

Rather than face litigation, the NCAA and CBS worked out an agreement similar to the one between the NCAA and Illinois association on the use of March Madness.

"Elite Eight" used to describe teams that win their first three games in the NCAA tournament. However, while the history of the term is more vague, the trademark belongs to the NCAA.

Surely "Final Four," the phrase so synonymous with the Indiana tournament, and today the NCAA, is Indiana's. Sorry.

Basketball historians generally agree that Final Four, used to describe the four remaining teams in the tournament, is Indiana's. But the U.S. Patent and Trademark Office says the trademark belongs to ... you guessed it, the NCAA.

While Indiana sportswriters and broadcasters used the Final Four term since nearly the start of the Indiana High School Athletic Association tournament way back when, the NCAA claim takes a much different and much more modern turn.

Its version cites a Cleveland Plain Dealer sportswriter who wrote in a 1975 article for the Official Collegiate Basketball Guide that Al McGuire's Marquette University team "was one of the final four" in the previous year's tournament. The NCAA folks took notice, and a couple of years later trademarked the term.

There you have it. The next time you watch a game leading up to the "Big Dance," (yep, NCAA-owned), and inevitably hear one of these catchy phrases, you can take solace in knowing that Indiana's game played a role. Just not that big of a role, intellectually property speaking.

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Boots is a partner in the intellectual property group within Indianapolis law firm Bingham McHale LLP. Views expressed here are the writer's.
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