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Lawyers are getting swept up in the March Madness frenzy, but not because of the basketball results. It’s potential trademark violations that have their heads spinning, as many lawyers are cautioning clients to refrain from using the terms “March Madness” or “The Final Four” for any promotions. That’s because the terms are trademarks licensed by the National Collegiate Athletic Association, and lawyers warn that the NCAA isn’t shy about protecting them from unlawful use. David Radack, who heads the intellectual property department at Pittsburgh’s Eckert Seamans Cherin & Mellott, said he has cautioned several clients to stay clear of using those terms for promotion purposes. “Just don’t do it,” Radack warned. “Try to find something else. Call it the ‘basketball frenzy,’ or something else. Just don’t call it March Madness.” Radack said his advice is for big and small businesses, including car dealerships, bars, restaurants, and even bakeries that want to sell cakes promoting March Madness. “If you’re using the term March Madness to promote your business, that would be a considered a trademark use of the term,” Radack said. Dallas attorney Scott Kline of Houston-based Andrews Kurth, offers similar advice to companies inquiring about using March Madness in a promotion. “Anytime someone calls me and says, ‘Can we do this?,’ my answer is always, ‘No,’ ” said Kline, stressing that the NCAA is tough with enforcement. “ They’re pretty good with cracking down on anyone who does anything with March Madness or basketball that makes it look like the tournament. They’re not very lenient in that regard.” Kline should know. He was the attorney in 2003 who successfully defended the March Madness trademark in a lawsuit challenging a Web site called www.marchmadness.-com, which contained basketball game information and planned contests. The Web site operators argued that the term March Madness had become generic, such as “aspirin.” But a federal judge disagreed and upheld March Madness as a trademark. March Madness Athletic Assn. LLC v. Netfire Inc., 162 F. Supp. 2d 560 (N.D. Texas 2003). That wasn’t the only time March Madness has been debated in court. Last year, the NCAA successfully challenged a “March Nakedness” promotion, an online competition that featured clips of naked celebrities in brackets. The Web site was ordered shut down. In 2001, the NCAA also sued the Coors Brewing Co. for giving away four tickets to a Final Four game as part of a sweepstakes promotion. Meanwhile, potential trademark theft is keeping NCAA attorneys busy. “This is a very hectic time of year for their lawyers,” said Douglas Masters in Loeb & Loeb’s Chicago office, who is helping police the tournament for the NCAA. “There’s a lot of opportunity for people to try to capitalize on the event.” Masters said the NCAA is policing everything from trademark violations to unauthorized contests and promotions to unauthorized broadcasts. “There’s eyes and ears around the country,” he said. “But certainly you don’t see everything.” And not everything gets scrutinized, he said, noting the NCAA isn’t completely unreasonable. “Your grammar school’s basketball event doesn’t get the same attention that a national campaign by someone else would,” he said.

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