March Madness is upon us! Whether you’re filling out multiple brackets or studiously avoiding a certain co-worker because your team missed out, odds are you’re aware the annual men’s and women’s college basketball tournaments are here. But you may also be wondering, how can my business capture the moment in its advertising?
The short answer: very carefully. March Madness is a trademarked term, and the NCAA, the organization that runs college athletics, aggressively protects against unlawful use of its trademarks. That means if you’re seeking to use March Madness in connection with advertising for your business, you need to receive a license from the NCAA first. And before you decide to instead use one of the several other terms associated with the college basketball postseason, make sure you check that the NCAA hasn’t trademarked it as well. Well-known phrases like “Final Four,” “Elite Eight” and “the Big Dance” as well as more obscure references like “Spring Madness” and “Markdown Mayhem” all are trademarked. Even the generic “NCAA Championships” is on the list. Unfortunately, we’re not aware of a common moniker that can safely invoke college basketball in the same manner that “the Big Game” is used for the Super Bowl. Best practice is to apply for a license from the NCAA if you intend to market around the event.
This leads into our next question: is a bracket challenge legal? Brackets are all the rage in March, and businesses may see them as a great way to draw eyeballs. For any public bracket challenge, your business needs to address the trademark issues highlighted above. Once that’s handled, the next issue to consider is whether your promotion could constitute an illegal lottery. Lotteries contain three elements: consideration, chance, and a prize. While there are some exceptions, such as state-run lotteries and licensed casinos, lotteries are generally unlawful. Unfortunately, this includes bracket challenges that have an entry fee. The fee is consideration; predicting who will win is chance; and, assuming the winner gets something, that’s a prize. Some of you may think completing a bracket shouldn’t constitute chance because you’ve developed a highly advanced system to predict the winners. That all goes out the window, though, when your friend who picked games based on team mascots wins it all. In fact, the odds of picking a perfect bracket are significantly lower than winning Powerball. Despite all the research you might put into it, a bracket challenge with an entry fee is a lottery.
You may be saying, “These can’t be illegal – I see them all the time!” And that’s true! Bracket challenges can legally operate the same way that sweepstakes do – by removing the consideration element from the promotion. In other words, if you don’t charge an entry fee in order to enter the bracket, then it’s no longer a lottery. Keep in mind that anything of value can be consideration. Businesses should be careful not to replace paid entry with some other form of consideration, such as completing a task that would take a substantial period of time. But generally, if users can enter for free without significant hassle, then the promotion can proceed. Instead of being a lottery, the challenge becomes a kind of sweepstakes. While sweepstakes are lawful, they trigger certain legal requirements, such as drafting official rules. If you’re offering a bracket challenge, be sure to check with legal counsel on not only trademark requirements but also lottery and sweepstakes issues. Now, back to picking that perfect bracket!