It’s that time of year again. College campuses around the country are buzzing, co-workers are whispering about office pools, and “bracketology” is the popular science of the day. The NCAA men’s basketball tournament season, aka “March Madness,” has begun. To tap into the vast media audiences generated by the NCAA Tournament (the “Tournament”), ambush marketers have started populating the market with basketball-themed promotional materials. There is little doubt that ambush marketers can legally draw on generic basketball symbols and complimentary imagery to tie into the excitement surrounding the Tournament without exposing themselves to a meaningful risk of liability to the NCAA as the Tournament operator. But what about using the phrase “March Madness”?

The History of March Madness

The term “March Madness” first appeared with prominence in 1939 as the title to an essay written by Henry V. Porter for the Illinois Interscholastic, the official magazine of the Illinois High School Association (“IHSA”). See IHSA.org, A Brief History of March Madness, (last visited Mar. 11, 2011). The essay was written as a celebration of the IHSA’s annual high school basketball tournament, which began in 1908. See id. Since the early 1940’s, the IHSA has used “March Madness” to refer to its basketball tournament. See March Madness Athletic Association LLC v. Netfire, Inc., 120 Fed. Appx. 540, 544 (5th Cir. 2005). Over the years, the IHSA claimed exclusive rights over the term, and even licensed the phrase to companies such as Pepsi and the Chicago Tribune. See id. However, it hadn’t attempted to register “March Madness” as a trademark until 1990. See id. It was then that the IHSA learned that a television production company named Intersport had already registered the phrase one year earlier, in 1989, and a dispute ensued. See id.