Battling in the Bubble of Trademarks: The NCAA’s Potential Solution to Play During COVID-19
Photo Source: Ron Cogswell, March Madness Canceled 2020, Flickr (Mar. 12, 2020), (CC BY 2.0).
By: Liliana Flores* Updated October 21, 2020
The NCAA has dealt with a challenging year since its biggest revenue generating event, March Madness, was canceled for the 2020 season due to COVID-19.[1] However, the NCAA has already begun working to find solutions for the upcoming season.[2] While not yet addressed by the NCAA directly, the cover has been blown on the NCAA’s potential remedy: a new trademark application.[3]
The NCAA recently filed an intent to use trademark application with the U.S. Patent and Trademark Office for the phrase, “Battle in the Bubble.”[4] The NCAA filed the intent to use application on August 26, 2020, with specified filings in international class forty-one for “athletic contests, games, tournaments, exhibitions and other athletic events at the college level,” as well as a filing in international class twenty-five for clothing items.[5] Since the NCAA only filed an intent to use application, rather than a use in commerce trademark application for the mark, the NCAA must only show that it has a bona fide intention to use the mark in commerce in the future.[6] This intent to use application filing allows them to attempt to secure priority for the mark before holding an event or using the mark on products, as long as they plan to use the mark in the future.[7]
The NCAA already holds trademarks for some other championship related phrases such as “March Madness,” “Selection Sunday,” and “Final Four.”[8] Although the NCAA has not directly addressed their filing of this trademark application, the intent behind the filing seems evident.[9] Last year’s March Madness cancellation was the first time that the tournament was not played since the tournament began in 1939.[10] It is clear now that the NCAA is doing everything it can to hold some sort of NCAA Tournament this year.[11] The NCAA has already felt the financial effects of COVID-19, as the NCAA announced that it had to slash revenue distribution to NCAA schools for 2020.[12] Due to the amount of revenue that March Madness generates each year, being forced to cancel the tournament for a second year in a row could pose a risk to the long term survival of college athletics.[13] March Madness accounts for about eighty percent of the total revenue for the NCAA, and thus, the NCAA cannot afford to lose out on the revenue that the tournament generates.[14] Additionally, 2021 Tournament Selection Committee Chair, Mitch Barnhart, noted the importance to players, stating, “we will absolutely do all we can do – whatever assets, whatever resources, whatever it takes – to try and give our young people the chance to play the game they love.”[15]
The NCAA has been proactively working to find ways to avoid canceling its men’s and women’s postseason tournaments for basketball this year.[16] NCAA President, Mark Emmert, stated that the NCAA would do everything it can to play, and would potentially try to institute the “bubble or semi-bubble models” for conducting championships during this unique season due to COVID-19.[17] After examining the NBA’s use of the bubble model and seeing its success thus far, the NCAA has been considering the bubble model as an option to bring back NCAA sports, specifically championships.[18] Therefore, it is unsurprising that the NCAA is now working to obtain a trademark that points to the idea of the bubble model of play.[19] One notable difference between a potential NCAA bubble and professional sports bubbles that already exist is that NCAA players are students.[20] The NCAA must consider this difference in moving forward with integrating the bubble model into play this season.[21] While it seems that the NCAA will attempt to implement a bubble model this year, the NCAA has already clarified that if it does hold some version of March Madness this year, changes to the tournament format will absolutely take place.[22]
Interestingly, the NCAA’s trademark application does not specify a sport for which the slogan Battle in the Bubble could be used, instead the application leaves open the possibility to use the phrase for all NCAA sports.[23] However, the future is still uncertain as the NCAA only filed an intent to use application for the trademark thus far.[24] There are many steps in the trademark prosecution process, and there are still potential issues that the NCAA could face throughout the process of trying to secure their mark.[25] Many new trademark applications referencing “bubble” have recently been introduced, which trademark attorney Josh Gerben noted, seems to already exist in the common domain.[26] However, Gerben also noted that because the use of “bubble” has been modified in the Battle in the Bubble phrase, it has a better chance of making it through the application process.[27] Ultimately, it is clear that the NCAA is doing all it can to combat the losses due to COVID-19, and it will be interesting to see if the NCAA’s trademark application for Battle in the Bubble is approved and how it will be used in the upcoming season.[28]
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2022, Villanova University Charles Widger School of Law.
[1] See Ben Pickman, NCAA Tournament Canceled Amid Coronavirus Concerns, Sports Illustrated (Mar. 12, 2020), https://www.si.com/college/2020/03/12/march-madness-canceled-ncaa-tournament-coronavirus (explaining NCAA’s decision to cancel Division I men’s and women’s basketball championships in 2020).
[2] See Associated Press, NCAA Offers Plan to Bring Athletes Back to Campus, ESPN (May 29, 2020), https://www.espn.com/college-sports/story/_/id/29241518/ncaa-offers-plan-bring-athletes-back-campus (explaining NCAA’s Resocialization of Collegiate Sports: Action Plan Considerations).
[3] See Isaac Schade, NCAA Applies for “Battle in the Bubble” Trademark, Sports Illustrated (Sept. 2, 2020), https://www.si.com/college/unc/basketball/battle-in-the-bubble (discussing NCAA’s new trademark application for “Battle in the Bubble”).
[4] Id. (noting NCAA already owns trademarks for other well-known phrases that are associated with college basketball).
[5] Josh Gerben, NCAA Files Trademark for “Battle In The Bubble,” Gerben Intell. Prop., https://www.gerbenlaw.com/blog/ncaa-files-trademark-for-battle-in-the-bubble/ (last visited Sept. 15, 2020) (explaining NCAA’s trademark application specifics).
[6] See generally Comm’r for Trademarks, TMEP, §§ 1101-1103, Bona Fide Intention To Use the Mark In Commerce (Oct. 2018) (explaining requirements for an intent to use trademark application and what is required later for evidence of use in commerce).
[7] See id. (noting intent to use application requires verified statement of good faith intent to use mark in commerce in future).
[8] Adam Rittenberg, NCAA Seeks Trademark on ‘Battle in the Bubble’, ESPN (Aug. 31, 2020), https://www.espn.com/college-sports/story/_/id/29779508/ncaa-seeks-trademark-battle-bubble (explaining NCAA already holds these trademarks).
[9] See Schade, supra note 3 (noting filing points to NCAA’s intentions not only to play this season, but also points toward 2020-21 season postseason basketball tournament).
[10] See Kevin Flaherty, NCAA Files for ‘Battle in the Bubble’ Trademark, 247 Sports (Aug. 31, 2020), https://247sports.com/Article/NCAA-files-for-Battle-in-the-Bubble-trademark-150896996/ (highlighting many top college basketball coaches voiced opinions about importance of playing and finishing 2021 season).
[11] See Schade, supra note 3 (noting NCAA will work hard to make sure 2021 March Madness tournament occurs because it brings in about one billion dollar payday).
[12] See Pat Forde, First Coronavirus Financial Ripple Effects Felt in NCAA With Revenue Distribution Slashing, Sports Illustrated (Mar. 26, 2020), https://www.si.com/college/2020/03/26/ncaa-revenue-losses-march-madness-schools (explaining major decrease in funding was attributable to cancellation of 2020 March Madness as well as all other cancelled NCAA championships of winter and spring sports).
[13] See Laine Higgins, The Big Bill for Canceling March Madness Has Arrived at the NCAA, Wall St. J. (Mar. 26, 2020), https://www.wsj.com/articles/ncaa-schools-to-see-fewer-funds-next-year-11585256379 (noting NCAA’s lower financial distributions to Division I programs could hurt less revenue generating sports at member institutions).
[14] See id. (explaining most lucrative of revenue generated by March Madness is television rights deal); see also Adam Zagoria, NCAA Must Hold March Madness Safely in 2021 for Financial Reasons, TCU Coach Jamie Dixon Says, Forbes (Jul. 8, 2020), https://www.forbes.com/sites/adamzagoria/2020/07/08/ncaa-must-hold-march-madness-in-2021-for-financial-reasons-tcu-coach-jamie-dixon-says/#15f97ac92fb2 (explaining NCAA cannot cancel the 2021 Tournament due to gravity of financial loss from canceling 2020 NCAA basketball tournament). President of the National Association of Basketball Coaches, and Texas Christian head men’s basketball coach, Jamie Dixon, stated “the NCAA is going to find a way to have the Tournament safely but they’re prepared to adapt the schedule to do it.” Id. (noting that NCAA could choose to hold March Madness without fans if that was the only way they could safely hold the tournament).
[15] Spencer Parlier, NCAA’s Dan Gavitt: We’ll Deliver a March Madness Tournament in 2021, NCAA (Aug. 14, 2020), https://www.ncaa.com/news/basketball-men/article/2020-08-12/ncaas-dan-gavitt-well-deliver-march-madness-tournament-2021 (noting logistics for 2021 March Madness Tournament will be challenge for decisionmakers).
[16] See Thomas Barrabi, NCAA Seeks Trademark for ‘Battle in the Bubble’ in Potential Hint at March Madness Plans, Fox News (Aug. 31, 2020), https://www.foxnews.com/sports/ncaa-trademark-battle-in-the-bubble-college-basketball (highlighting NCAA lost hundreds of millions of dollars due to cancelling tournaments).
[17] Kyle Boone, NCAA President Floats Idea of Postseason Bubble Model, Thinks 32-Team NCAA Tournament ‘Manageable’, CBS Sports (Aug. 13, 2020), https://www.cbssports.com/college-basketball/news/ncaa-president-floats-idea-of-postseason-bubble-model-thinks-32-team-ncaa-tournament-manageable/ (noting focus on winter and spring sports because they already lost their championships last season).
[18] See Rittenberg, supra note 8 (explaining observing NBA’s bubbling plan gave NCAA “a chance to see its execution” and confidently “know that it works”) (quoting Dan Gravitt, NCAA Vice President of Basketball).
[19] For further discussion of the details of the NCAA’s trademark application, see supra notes 4-7 and accompanying text.
[20] See College Basketball Bubble? NCAA Considers Adopting NBA’s Approach For ’20-21 Season, Fox Sports (Sept. 7, 2020), https://www.foxsports.com/midwest/story/college-basketball-bubble-ncaa-considers-adopting-nbas-approach-for-20-21-season-090720 (noting NCAA needs to take into account player’s academic needs if it were to implement bubble model).
[21] See id. (explaining NCAA players still need to be able to focus on schoolwork while in bubble).
[22] See Jeff Borzello, Mark Emmert Says Using Bubbles for Championships in 2021 ‘Perfectly Viable’, ESPN (Aug. 13, 2020), https://www.espn.com/mens-college-basketball/story/_/id/29657321/mark-emmert-says-using-bubbles-championships-2021-perfectly-viable (noting difficulty in orchestrating traditional sixty-eight team field for March Madness in 2021).
[23] See Gerben, supra note 5 (explaining NCAA’s application leaves use of Battle in the Bubble open to all college sports).
[24] See Darren Rovell, NCAA Files Trademark for ‘Battle in the Bubble’, Action Network (Aug. 31, 2020), https://www.actionnetwork.com/ncaaf/ncaa-trademarks-battle-in-the-bubble (emphasizing NCAA’s trademark is still only an intent to use filing as of now).
[25] See Trademark Process, USPTO, https://www.uspto.gov/trademarks-getting-started/trademark-process#step1 (last visited Sept. 18, 2020) (describing process of prosecuting a trademark).
[26] See Rovell, supra note 24 (noting words and phrases considered to be in common domain likely not trademarkable).
[27] See id. (explaining WNBA chose similar path as NCAA, seeking trademark for “Wubble” for its bubble approach to this season).
[28] For further discussion of potential issues the NCAA may face in the application process, see supra notes 24–26 and accompanying text.
