A March Madness Bracket Based On Team Trademarks
On March 15, 2017, Michael Spink's article, "The Trivial Trademark Bracket" was published in Law360.
The Trivial Trademark Bracket
The value of trademarks is on display again as "March Madness" heats up and inevitably leads to the coming weeks of unproductive searching for Cinderellas, picking the right No. 12 seed to advance, and rooting for your picks among a wall of television screens. It’s also that time of year when a barrage of trademarks that surround the collegiate basketball tournament invade our senses.
In addition to owning the trademark registration for “March Madness,” the National Collegiate Athletic Association also owns "NCAA," "Elite Eight" and "Final Four" among over 150 registered trademarks. Some may not know that the NCAA also owns registrations for “March Mayhem,” “America’s Original March Madness,” “And Then There Were Four,” “Bracket Town,” “It’s The Journey” and of course “The Big Dance.” Much has been written how the NCAA has come to own these trademarks, and how they go about enforcing them.
When it comes to filling out your brackets and competing among colleagues, friends and family, there are a myriad of strategies employed. It occurred to me that some strategies already include trademarks and brand recognition. After spending hours studying the teams and completing the "perfect" bracket, how many of you have lost to your nephew who picked his favorite color combinations, or aunt who picked her favorite mascots? Maybe they were on to something …
In prior years I have written about trademark protection for collegiate color combinations, as well as compared the trademarks of two of my home state’s rivals: Michigan State University and the University of Michigan ("Hail to the Victors!"). This year, out of curiosity and mainly for fun, I have taken a short look at what an NCAA tournament bracket would look like if based on the number of trademark registrations for each school competing in the tournament. It will be interesting to see what value, if any, can be attributed to a school’s trademark count and its tournament success.
With this in mind, I completed the bracket (below) based on trademarks, and in particular the quantity of federal registrations for each university participating in the NCAA basketball tournament. I began by searching federal trademark records for active registered trademarks by each of the 68 teams, using various terms in the query to best identify and attribute ownership to each university. I also selected a favorite trademark for each school, for example because it was famous, or rare, or quirky.
Since the methodology is strictly based on quantity, we can quickly name the winner: the University of Arkansas. With 119 federal trademark registrations, the Razorbacks top the trademark list. Interestingly, they are also one of a few universities who have registered a sound mark, namely "Woo Pig Sooie," a chant used by the university and its fans in the famous “Calling the Hogs.”
As is foretold through trademark registrations, the Razorbacks defeated the University of Wisconsin Badgers, who tallied a respectable 97 trademark registrations. Rounding out the "terminal quad" or "concluding cuatro," are Vanderbilt University and my alma mater, the University of Michigan ("Go Blue!"). Although third on the list of registrations, the University of Minnesota played Arkansas in the round of 16, leading to a premature end of their tournament hopes. My completed "Trivial Trademark" bracket is also accompanied by a chart of the trademark search results.
During my review of the search results, I noted that universities are increasingly protecting hand and/or body gestures used by the athletes, alumni and fans to refer to the university. For example, Miami has registered the “U” hand gesture, and many recognized the "Hook ‘Em Horns" of the University of Texas:
Reg. No. 4147043
University of Texas
Reg. No. 4535612
Arizona State University
Reg. No. 4631228
Ohio State University
Reg. No. 4104956
Texas A&M University
Reg. No. 4731375
For the handful of gestures that have been registered as trademarks, there are tens, if not hundreds, of other unregistered gestures. For example, fans of the University of Utah also use a two-handed “U” gesture similar to Miami’s, however they generally turn down the last three fingers of each hand. The University of Houston also has a hand gesture representing the injured claw of an opponent’s mascot, but is quite similar to Arizona State’s “pitchfork.” Other memorable gestures that might be eligible for protection include Florida’s “gator chomp,” Florida State’s “tomahawk” and Baylor’s “bear claw.” As a general rule of thumb, if a gesture is popular enough be put on a T-shirt, registration is probably warranted for the schools to which the gesture refers.
Uniforms and related apparel are also starting to be protected by universities. Notably, the University of North Carolina has registered its basketball uniform, which was my choice for the bracket and chart below. I have also found several others, including Ohio State, Indiana and Alabama.
University of North Carolina
Reg. No. 4270868
Ohio State University
Reg. Nos. 4683332 and 4683333
Reg. No. 4479801
University of Alabama
Reg. No. 4030682
As college athletics continues to generate large amounts of revenue for their universities and others associated with athletics, I expect we will see an increasing number of trademark registrations for nontraditional marks, such as hand gestures, cheers and chants, fight songs, and three-dimensional clothing and equipment.
I hope you enjoy this year’s third month craziness, and may the best mascot, color combination or trademark win!
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