Tag Archives: Issue 98

Solve for “X”: NFL is to Super Bowl® as USOC is to Olympics® as NCAA is to X® (There Is More Than One Correct Answer!)

Mitchell Stabbe
Mitchell Stabbe

By: Mitchell Stabbe, Wilkinson Barker Knauer, LLP via the Broadcast Law Blog

It was almost exactly one year ago that we reported that the National Collegiate Athletic Association filed a trademark infringement action in federal court against a company that ran online sports-themed promotions and sweepstakes under the marks “April Madness” and “Final 3.” The NCAA prevailed because the defendant entered into an agreement not to use the marks, but failed to file an answer to the complaint. A default judgment was entered. On February 23, 2018, the NCAA filed a motion requesting an an award of attorneys’ fees against the defendant in the amount of $242,213.55.

The amount of attorneys’ fees incurred in a case that was resolved with relatively little resistance illustrates the level of importance that the NCAA places on taking action against activities that “play off” the NCAA Collegiate Basketball Playoffs. Clearly, such activities continue to carry great risks. Accordingly, following is an updated version of last year’s blog post on this subject.

With the NCAA Basketball Tournament underway, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use terms and logos associated with the tournament, including March Madness®, The Big Dance®, Final Four® or Elite Eight,® each of which is a federally registered trademark.

The NCAA Aggressively Polices the Use of its Trademarks

The NCAA states that $821.4M of its annual revenues derives from the Division I Men’s Basketball Tournament. Moreover, its returns from the tournament have historically grown each year. Most of this income comes from broadcast licensing fees. It also has a substantial amount of revenue from licensing March Madness® and its other marks for use by advertisers. As part of those licenses, the NCAA agrees to stop non-authorized parties from using any of the marks. Indeed, if the NCAA did not actively police the use of its marks by unauthorized companies, advertisers might not feel the need to get a license or, at least, to pay as much as they do for the license. Thus, the NCAA has a strong incentive to put on a full court press to prevent non-licensees from associating their goods and services with the NCAA tournament through unauthorized use of its trademarks.

Activities that May Result in a Whistle

The NCAA acknowledges that media entities can sell advertising that accompanies the entity’s coverage of the NCAA championships. Even so, as discussed in greater deal in our earlier discussions of the “Do’s and Don’ts” of Super Bowl – and Olympics – related promotions, unless authorized by the NCAA, any of the following activities may result in a cease and desist demand:

    • Accepting advertising that refers to the NCAA, the NCAA Basketball Tournament, March Madness, The Big Dance, Final Four, Elite Eight or any other NCAA trademark or logo (The NCAA has posted a list of its trademarks here.)
      Example: An ad from a retailer with the headline, “Buy A New Big Screen TV in Time to Watch March Madness.”
    • Local programming that uses any NCAA trademark as part of its name.
      Example: A locally produced program previewing the tournament called “The Big Dance: Pick a Winning Bracket.”
    • Selling the right to sponsor the overall coverage by a broadcaster, website or print publication of the tournament.
      Example: During the sports segment of the local news, introducing the section of the report on tournament developments as “March Madness, brought to you by [name of advertiser].”
    • Sweepstakes or giveaways that include any NCAA trademark in its name.
      Example: “The Final Four Giveaway.”
    • Sweepstakes or giveaways that offer tickets to a tournament game as a prize.
      Example: the sweepstakes name may not be a problem, but including game tickets as a prize will raise an objection by the NCAA.
    • Events or parties that use any NCAA trademark to attract attendees.
      Example: a radio station sponsors a happy hour where fans can watch a tournament game and prominently places any of the NCAA marks on signage.
    • Advertising that wishes or congratulates a team, or its coach or players, on success in the tournament.
      Example: “[Advertiser name] wishes [Name of Coach] and the 2018 [Name of Team] success in the NCAA tournament!”

There is one more common pitfall that is unique to the NCAA Basketball: tournament brackets used in office pools where participants predict the winners of each game in advance of the tournament. The NCAA’s view is that the unauthorized placement of advertising within an NCAA bracket or corporate sponsorship of a tournament bracket is misleading and constitutes an infringement of its intellectual property rights. Accordingly, it says that any advertising should be outside of the bracket space and should clearly indicate that the advertiser or its goods or services are not sponsored by, approved by or otherwise associated with the NCAA or its championship tournament.

Note that none of these restrictions prevents media companies from using any of the marks in providing customary news coverage of or commentary on the tournament. Just be sure that they are just used to identify the tournament and its stages, and don’t in any way imply that there is an association between the station itself or any sponsor who does not have the rights to claim such association and the NCAA. The NCAA’s Advertising and Promotional Guidelines are available for review online.

A Surprising History of “March Madness”

The NCAA was not the first to use “March Madness” as a trademark in connection with basketball tournaments. In fact, beginning in the 1940’s, the Illinois High School Association (IHSA) used it in connection with the Illinois state high school basketball championship playoffs.

The NCAA also may not have been the first to license the use of “March Madness.” Beginning in the early 1990’s, the IHSA licensed it for use by other state high school basketball tournaments and by corporations.

Moreover, the NCAA did not originate the use of “March Madness” to promote its collegiate basketball tournament. Rather, CBS broadcaster is credited with first using “March Madness” in 1982 to describe the tournament. As CBS was licensed by the NCAA to air the tournament, the NCAA apparently claims that as its date of first use.

Finally, the NCAA was not the first to register “March Madness” as a trademark. That honor went to a company called Intersport, Inc., which used the mark for sports programs it produced and registered the mark in 1989.

So, how did the NCAA get to claim ownership of the March Madness® trademark? The short answer is through litigation and negotiations over a period of many years. Although it has also been able to obtain federal registrations for Final Four® and Elite Eight,® it was late to the gate and was unable to snag “Sweet Sixteen” or “Sweet 16,” which are registered to the Kentucky High School Athletic Association (KHSAA). (The NCAA, however, has the KHSAA’s consent to register “NCAA Sweet Sixteen” and “NCAA Sweet 16.”)

The Final Score

Having invested so much in its trademarks, the NCAA takes policing its trademark rights very seriously. Even so, although the NCAA may send a cease-and-desist letter over the types of activities discussed above, some claims may not be a slam-dunk as there can be arguments to be made on both sides of these issues. If you plan to accept advertising incorporating an NCAA trademark or logo or plan to use an NCAA trademark or logo other than in the context of reporting on the tournament, you should consult with an experienced trademark attorney so you can make an informed decision about the level of risk that you may be taking on.

The Robinson Report – Different

Editor’s Note: The views and opinions of this article do not necessarily reflect those of the MAB. Contact the MAB for information on the MAB’s official editorial policy.

Kevin Robinson

By: Kevin Robinson
Robinson Media

“The person who follows the crowd will usually go no further than the crowd. The person who walks alone is likely to find himself in places no one has ever seen before.” – Albert Einstein

Coffee – Starbucks vs. Dunkin Donuts.

Smartphone – iPhone vs. Android.

Religion – Protestant vs. Catholicism

None of the above is “better” than the other, only different.

The “better” is determined by the end user, not the designer.

The human brain has seven slots of short-term memory (give or take two slots) at any given time. As brand marketers, our job is to grab just ONE slot and then print it to long-term memory.

Often times, “professional copywriting” is tremendously “same” and not different. The result washes over the end user and never “prints” in the “seven slots.”

While re-watching the historic and elaborate Naptown Rock Radio Wars, it’s clear that WIBC against WIFE was about who was  different. When WNAP came to morally disrupt Indy radio history it was clearly different and messy – far from “better.”

So do something about it.

Listen, read or see the brand you shepherd.

Of course you think it’s better – you designed it.

But is it ‘different’ – from your competition.

Are there aural activators, unique talent and surprises that create “differentiators”?

Different  is the new “better.”

A word of caution: being “different” carries a heavy tax.

You’ll initially be on an island, alone.

And sometimes that’s what makes it “better.”

Kevin Robinson is a record-setting and award-winning programmer. His brands consistently perform in the Top Three of the target – often times as the list leader. In his 35 years of radio, he’s successfully programmed or consulted nearly every English language radio brand. Known largely as a trusted talent coach, he’s the only personality mentor who’s coached three different morning shows on three different stations in the same major market to the #1 position. His efforts have been recognized by Radio & Records, NAB’s Marconi, Radio Ink and he has coached CMA, ACM and Marconi winning talent.  He lives in Indiana with his wife of 32 years, Monica. Reach Kevin at (314) 882-2148 or [email protected].

How Radio Stations Can Use Gary Vaynerchuck’s $1.80 Instagram Strategy

Seth Resler

Editor’s Note: The views and opinions of this article do not necessarily reflect those of the MAB. Contact the MAB for information on the MAB’s official editorial policy.

By: Seth Resler
Jacobs Media Strategies

Gary Vaynerchuck (a.k.a. “Gary Vee”), the CEO of digital media agency VaynerMedia, is a popular speaker, author, and podcaster in the digital marketing space. He’s also an Instagram evangelist.

Gary Vaynerchuk

Personally, I am bearish on Instagram’s value as a marketing tool for radio stations. First, because radio is not an inherently visual medium. Second, because Instagram — unlike, for example, Pinterest — does not allow users to include clickable links inside individual posts. You can only include a clickable link in the account profile. This makes it very difficult to use Instagram to drive traffic back to your radio station’s website, where you can steer visitors towards actions that contribute to your station’s bottom line.

Nonetheless, as Facebook tweaks its algorithm to show users less content from businesses and media outlets, many radio stations are expressing a desire to invest more time and energy into other social networks, including Instagram. (Note: Facebook owns Instagram.) If your radio station is looking for some practical advice for approaching Instagram, you may want to adopt Vaynerchuck’s $1.80 Instagram strategy.

1. Identify Popular Hashtags in Your Market
Last year, Instagram enabled people to search posts by hashtag. To do this, open Instagram on your phone and click the magnifying glass icon at the bottom of the screen. When the search bar appears at the top of your screen, click in it. Four tabs will appear: Top, People, Tags, and Places. Click on “Tags” and type in the tag that you want to search for.

One way to find popular hashtags in your market is to choose a big venue, such as a convention center, university, or park. Go to the calendar on the venue’s website. Browse the upcoming events, find the websites for the most popular events, and scan their social media feeds for hashtags. Using this technique, you may discover local hashtags like #ComicConSLC or #DenverBeerFest.

You can also find hashtags with a site like TrendsMap.com. Although Trends Map tracks Twitter hashtags, not Instagram hashtags, the two social networks are likely to have overlapping hashtags.

Vaynerchuck recommends identifying the ten hashtags that are most relevant to your audience. Some of those hashtags, such as #Orlando, may stay the same over time. Others, such as #FinalFour, may come and go.

2. Leave Thoughtful Comments
For each of these ten hashtags, you’ll want to identify the top nine posts. When considering posts, look at a number of factors — the number of followers the posting account has, the number of likes, the number of comments, the relevance to your audience, etc. This is not an exact science; you’re eyeballing the post and making an educated guess. On each of these top posts, leave a thoughtful comment. Gary refers to this as “adding your 2 cents,” which is where the $1.80 strategy comes from: 10 hashtags * 9 posts * $.02 = $1.80.

It’s important to make sure the comments you leave are relevant and engaging to the publisher of the original post. A good example: Reply to a local comedy club who posts about an upcoming show with Kathleen Madigan by saying “She’s hilarious! Can’t wait for the show!” A bad example: Replying with a generic “That’s awesome!” on multiple posts.

3. Browse Local Posts and Comment
Because radio stations have geographic boundaries that many other companies don’t, you can also identify top relevant posts by conducting a search for local images. To do this, when you search Instagram, simply click on the “Places” tab instead of the “Tags” tab.

4. Repeat Daily
Gary claims that if you do this every day for a month, you will see substantial growth in your Instagram following. It’s worth noting that he’s measuring success in terms of the number of Instagram followers you have. I think it’s far more important to keep an eye on your Google Analytics to see if the amount of incoming website visitors from Instagram increases. Also, watch to see how many of these visitors produce goal conversions.

The $1.80 strategy is time-consuming. Vaynerchuck suggests spending about three hours per day finding and responding to posts. At this point, I can’t endorse it as a tried-and-true method for stations with limited resources. However, for radio brands/personalities looking for a practical way to experiment with Instagram strategies, this is a good place to start. You can then refine your strategy based on the results.

For more assistance on digital or social media, contact MAB Member Services at [email protected] or 1-800-968-7622.

WKAR’s Elkins Featured in Podcast

Susi Elkins

WKAR’s Russ White recently sat down with Susi Elkins, director of broadcasting and general manager of WKAR Public Media at Michigan State University to talk about evolving the station’s mission to “serve, educate, inspire and entertain” in the digital age.

She said it’s a great time to be in broadcasting, in part due to the many different ways the audience can consume WKAR content in 2018.

“That means to me that we follow our mission to ‘serve, educate, inspire and entertain’ even more ardently,” she said. “It’s less about figuring out the program schedule and determining when people will hear or watch something and more about thinking about each member of our audience as individuals and providing choices and options for them in content and information.”

The challenges ahead for media organizations mostly all involve serving audiences. Elkins said, “It’s understanding them and understanding what they’re interested in.”

Listen to the interview here.