I’m not abandoning this blog (at least not yet). I just wanted to mention that I recently started up a Tumblr (http://melissatta.tumblr.com/ ). The focus of my Tumblr will be more of a quick micro-blog. It will showcase photos, quotes, and other miscellaneous media. The purpose of it is to serve more of as an inspiration to others.
In case you’re curious, I didn’t switch over to Tumblr entirely because I do not like the fact that there is no privacy option/feature for photos there. I did some research and you can disable the “right-click” feature on Tumblr by adding in some HTML code. I inserted this line of code after <head> tag:
When you hear the word “bracket,” what comes to mind first? If it’s the NCAA, then perhaps they have a point in asserting trademark rights over that word, as they did this past week.
For the many people whose knowledge of “trademarks” and “intellectual property” is limited, this concept perhaps seems laughable. How could the NCAA possibly have rights in a word as generic as “bracket”? (Sorry, I shouldn’t use charged terms like “generic,” but I’ll get to that in a bit.)
Well, there are two main things to consider here. One is that, in the U.S., you do not have to have your trademark registered (that is, with the U.S. Patent and Trademark Office, or USPTO) in order to enjoy rights in it. For these “unregistered marks” cases, all that really matters is extent of use; if you use the mark a lot in conjunction with your product, you could very plausibly have the right to exclude all others from using that mark in conjunction with theirs. Of course this gets tricky in a number of ways—you have to have been the first to use it, you only get rights in conjunction with the product (not “everything”), you get more rights if you do actually go ahead and register, et cetera.
But the basic point is that the NCAA doesn’t need to have the word “bracket” (BracketTM?) formally registered as a “Trademark of the NCAA” in order to actually enjoy using it exclusively, as a trademark.
That may be confusing, I know. But it happens to be the case here. NCAA does not have “bracket” registered, but they are claiming they still have what’s known as common law trademark rights in the word, based on extent of use and familiarity of the public with the NCAA brand.
Quoth the Association: “NCAA has spent significant sums advertising and promoting its ‘Bracket’ marks throughout the United States. By virtue of the popularity of NCAA’s services offered in connection with its ‘Bracket’ marks, and its advertising and promotion of its ‘Bracket’ marks, NCAA has built up and now owns an extremely valuable goodwill…”
This brings us to the second consideration, which is how exactly trademark rights materialize in the first place. Broadly speaking, there’s a spectrum for word marks: if your word mark is completely random (“Apple” for computers) or made-up (“Kodak”), then it is considered a strong mark and will have pretty good protection; if, on the other end, your word mark is just generic (e.g., “Korean Restaurant” as the name of a restaurant that sells Korean food), then it simply put cannot be protected as a trademark.
In the middle, though, is a classification referred to as “merely descriptive.” It’s something more than generic, and, although it won’t get you automatic rights off the bat (because it’s not a “strong” designation), it can earn you trademark rights if you establish what’s called secondary meaning—when the public comes to associate that “merely descriptive” word with your company (through advertising and sales and all that).
But, again, if the USPTO says it’s “generic” (and not “descriptive”), then secondary meaning is… well, meaningless. So if BracketTM turns out to simply be “bracket,” then none of the NCAA’s “extremely valuable goodwill” or “significant sums” of advertising expenditures matter.
The issue here is that Class Act Sports LLC is seeking (registered) protection for some marks including “Don’t Let One Team Bust Your Bracket,” and the NCAA has taken exception to the endeavor by filing an opposition. According to NCAA, Class Act’s applied-for marks “will be understood by consumers to refer to [the NCAA], and consumers will erroneously believe that applicant’s marks, and the goods and services provided thereunder, are associated with or authorized by” the NCAA.
And that’s key, because the mark must be associated in the public’s mind with the producer—that is, the NCAA—and not just the product. But that’s only relevant if the word “bracket” isn’t deemed generic. Which seems remarkably likely. Here’s why.
NCAA does have rights in marks like “March Madness” and “Final Four.” We could debate plenty over whether it seems right to give NCAA an effective monopoly over those terms, but at least those are relatively well settled, in the same way “Super Bowl” is owned by the NFL.
The difference here is that “bracket” isn’t a cute phrase or a unique motto. It’s a word, an English word, whose English meaning is exactly the same as the meaning used here. (Again, in stark contrast to, say, “Apple Computers.”) Brackets are, and have been, used in all sports worldwide. So the rationale behind granting NCAA such broad rights would have to be convincing, to say the least.
When the Super Bowl comes around, we all get inundated with commercials referencing, not the “Super Bowl,” but instead the “Big Game,” or “This Sunday,” or just “Football.” That’s because the NFL has been aggressive in asserting its sole rights to the mark “Super Bowl,” so anyone who doesn’t pay to be a sponsor doesn’t get to use that mark. Again, we can debate whether that is right, or sound public policy, but it’s easy enough to wrap your head around, at least. There’s no need to say “Super Bowl” in your commercial—“Big Game” gets the message across just fine. It might be annoying, or you might roll your eyes at how absurd it is that they can’t just come out and say “Super Bowl,” but it is what it is.
Can that same logic, then, be applied to “Bracket”? Even supposing NCAA only wants rights in the word as it pertains to basketball or college basketball (it doesn’t), and even further supposing that NCAA only really wants to curb use around the time of March Madness but usage at other times of the year is more or less acceptable (it wouldn’t be), what we’re left with is a system in which the word “bracket” cannot be used in any commercial, on any sign, in virtually any program or TV show, for several months out of every year, unless either the NCAA first approves it (read: gets paid) or the word is used in a very obviously non-sports-y way.
Often times what large corporations will do is send out cease-and-desist letters to everyone and their mother who they think might be infringing their marks. It’s a cost-effective solution (compared to litigation), and it sometimes works even if the company doesn’t actually have rights in those marks (i.e., if it did go to court, and the court determined that the mark was generic). But here, not only is it not clear the NCAA is sending those letters out for use of “bracket,” but they’re actually taking it one step further and affirmatively asserting, in the USPTO itself, that these rights are valid.
It’s certainly bold, to say the least. The cynic might think NCAA will win because they’re the Big Guy. The crafty trademark lawyer might pursue a narrow carve-out so that the NCAA does ultimately get to enjoy some level of exclusivity in that word. We’ll have to see how it develops.
And just in case the NCAA doesn’t get rights in the word “bracket,” it has also asserted rights in, as the NCAA’s own filing puts it, “images of brackets.” So even the bracket itself might soon be an Official Trademark of the NCAA.
 The so-called Abercrombie spectrum, from a famous trademarks case, says that a word mark’s level of distinctiveness may be: “fanciful”; “arbitrary”; “suggestive”; “merely descriptive”; or “generic.” Abercrombie & Fitch Co. v. Hunting World, 537 F.2d 4 (2d Cir. 1976). The first three are “inherently distinctive” (and therefore get automatic rights); “merely descriptive” requires secondary meaning in order to be deemed “distinctive” and get rights; “generic” word marks can never have trademark rights.
 This so-called “Primary Significance Test” was articulated in Qualitex v. Jacobson Products, 514 U.S. 159 (1995).
 Of course, there is always a “fair use” defense, with the paradigmatic examples being news reporting and comparative advertising. For instance, the nightly news could still reference “brackets” without infringing the NCAA’s rights.
To those who messaged me on kik and on here about some theme problems, I will update and fix it as soon as possible. I’ve been pretty busy lately from uni and work. So as soon as I have free time, I’ll do it.
Im really glad to know that people appreciate my themes! Thank you so much! Goodnight <3
I will soon no longer use schmigs. I will be renaming it to CLCRK, which basically is my name. Lol. I will still keep this URL for future references. You can follow me @ http://clcrk.com as I will no longer update this schmigs blog and focus on the new one. However, for the mean time, until I haven’t finish the new site, you can still access my themes @ http://themes.schmigs.com :)